STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JOHN E. PILCHER, et al., )
)
Petitioner, )
)
vs. ) CASE NO. 90-0254
)
BAY COUNTY and )
STATE OF FLORIDA, ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )
)
Respondent. )
) SAND HILL COMMUNITY ) IMPROVEMENT ASSOCIATION, )
)
Petitioner, )
)
vs. ) CASE NO. 90-6913
)
CITY OF LYNN HAVEN and )
STATE OF FLORIDA, ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this matter came on for hearing in Tallahassee, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on April 1 - 5 and 16, 1991.
APPEARANCES
For Petitioner: Randall E. Denker, Esquire
3425 Woodley Road
Tallahassee, Florida 32312
For Respondent Michael P. Donaldson, Esquire (DER): Office of General Counsel
Department of Environmental Regulation
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399
For Respondent Steve Lewis, Esquire
Lynn Haven/ Messer, Vickers, Caparello, Applicant: Madsen & Lewis, P.A.
Post Office Box 1876 Tallahassee, Florida 32302
Bill R. Hutto, Esquire Hutto, Nabors, Bodiford and
Warner
Post Office Box 2528
Panama City, Florida 32402 STATEMENT OF THE ISSUES
The issues addressed in this proceeding are whether the applicant provided reasonable assurances that its proposed wastewater treatment system is entitled to various agency permits and whether the applicant is entitled to a variance to relieve or prevent a hardship for a dredge and fill permit to cross the northern end of St. Andrews Bay known as North Bay.
PRELIMINARY STATEMENT
Respondent/Applicant, City of Lynn Haven, filed several applications with the Respondent, Department of Environmental Regulation. These applications sought the issuance of several different permits and a variance to build a new two million gallon per day advanced wastewater treatment facility and collection system. The proposed wastewater treatment facility is intended to replace the old wastewater treatment facility currently being used by the City of Lynn Haven. Specifically, the proposed wastewater treatment facility project requires a permit for the construction of 12 miles of wastewater transmission line and collection system (permit #CS03-178910), a construction permit to construct an advanced wastewater treatment facility and distribution system to receiving wetlands (permit #DC03-178814), a dredge and fill permit for ten incidental crossings of waters of the state (permit #031785181) and a dredge and fill permit and variance for crossing North Bay Class II waters (permit #031716641).
On December 15, 1989, Petitioner (Pilcher, et. al.) requested an administrative hearing challenging DER's preliminary decision to issue a dredge and fill permit and variance for that portion of the transmission line crossing North Bay.
On April 27, 1990, an order was entered temporarily abating the proceeding to allow for the completion of all other DER applications for the proposed wastewater treatment facility and to afford Petitioners an opportunity to petition for formal hearings on any of the other permit applications involved in this project so that all aspects of the proposed facility could be consolidated in one proceeding.
After a review of all of Lynn Haven's applications, the Department proposed several Intents to Issue covering the different aspects of the proposed project. The Intents to Issue included: A) a dredge and fill permit and variance, pursuant to Sections 403.918, 403.919, 403.201, Florida Statutes, and Rule 17- 312, Florida Administrative Code, authorizing a subaqueous crossing of North Bay (Class II waters) and installation of a force main, B) a collection system permit, pursuant to Chapter 403, Florida Statutes, and Rules 17-4, 17-600 and
17-604, Florida Administrative Code, for the installation of approximately 11
miles of pipe from North Bay to the proposed treatment plant, C) a dredge and fill permit, pursuant to Sections 403.918, and 403.919, Florida Statutes, and Rules 17-4, 17-312, Florida Administrative Code, authorizing 10 incidental wetland crossings associated with the collection system, and, D) a construction permit, pursuant to Chapter 403, Florida Statutes, and Rules 17-4, 17-302, 17- 600 and 17-611, Florida Administrative Code, authorizing the construction of a
mgd wastewater treatment plant.
On September 28, 1990, a consolidated petition was filed on behalf of the Sand Hill Community Improvement Association (Sand Hill) challenging the Department's Intents to Issue and requesting a formal administrative hearing. Specifically, the Petitioners challenged the issuance of the variance for dredging and filling involved in the installation of a 20" wastewater transmission line across Class II waters of North Bay, the dredge and fill permit for the transmission line across North Bay, the construction permit for the advanced wastewater treatment facility, the permit to construct 12 miles of force main to the new proposed advanced wastewater treatment facility and the dredge and fill permit for the other ten incidental crossings of waters of the state by the transmission line.
At final hearing, Respondent, Lynn Haven, presented the testimony of John Goin, accepted as an expert in civil engineering, wastewater and stormwater design and the applicable DER standards; Don King, accepted as an expert in civil engineering, domestic wastewater treatment and applicable DER standards; Jack Taylor, accepted as an expert in marine biology and coastal ecology; Harvey Svetlik, accepted as an expert in mechanical engineering with experience in the characteristics and use of high density polyethylene pipe; Peter Wallace, accepted as an expert in wastewater to wetlands treatment systems and the applicable DER standards, wetlands ecology, water quality and dredge and fill jurisdictional determinations; Dr. Larry Schwartz, accepted as an expert in wetlands ecology, water quality and DER wastewater to wetlands permitting standards; and Randy Armstrong, accepted as an expert in the area of water quality, water quality based effluent limitations, dredge and fill permitting standards and DER variance policy. Respondent, Lynn Haven, also offered into evidence Exhibits 1 through 26 which were all received into evidence.
Respondent, DER presented the testimony of Bob Reining, accepted as an expert in civil engineering, sanitary engineering and DER standards applicable to wastewater treatment facilities; Robert V. Kriegel accepted as an expert in wetlands resource management and Department variance policy; Henry Hernandez, accepted as an expert in biology, wetlands resource management and dredge and fill permitting standards; Al Bishop, accepted as an expert in DER water quality standards and effluent limitations; and Rick Cantrell, accepted as an expert in biology and dredge fill wetlands jurisdictional determinations. Additionally, Respondent, DER, offered into evidence Exhibits 1 through 10 which were all received into evidence.
Petitioner, Sand Hill, presented the testimony of Phyllis Reppen, President of Sand Hill; Dr. Wayne Hall, accepted as an expert in environmental engineering and pollution control; Edwin Keppner, accepted as an expert in zoology and fish and wildlife biology; Dave Wiggins, accepted as an expert in shellfish harvesting as a food source; Dean Shinn, an Environmental Specialist III with the Department of Natural Resources; Loran Anderson, accepted as an expert in botany; Sydney Bacchus, accepted as an expert in aquatic and wetlands ecology, botany and water quality impacts associated with dredge and fill permitting; Joe Travis, accepted as an expert in population ecology; Rawlins Collerain, Director of Utilities for Bay County, accepted as an expert in wastewater engineering;
William Cooper, accepted as an expert in chemistry and geochemistry; Dr. Andrew Rogers, accepted as an expert in entomology; and Jim Slonina, accepted as an expert in environmental engineering. Petitioners also offered into evidence Exhibits 3 through 8, 12 through 13, 16 through 18, and 22 through 29.
Petitioner and both Respondents filed Proposed Recommended Orders on July 5, 1991. The parties' Proposed Findings of Fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the weight of the evidence or were immaterial, cumulative, or subordinate. Specific rulings on the parties' Proposed Findings of Fact are contained in the Appendix to this Recommended Order.
FINDINGS OF FACT
During 1990, Respondent/Applicant, City of Lynn Haven, filed several applications with the Respondent, Department of Environmental Regulation, seeking the issuance of several permits to build a wastewater collection system and a two million gallon per day advanced wastewater treatment (AWT) plant. The proposed facility is intended to replace the wastewater treatment facility currently being used by the City of Lynn Haven. After a review of the applications the Department proposed several Intents to Issue covering the different aspects of the proposed projects. The Intents to Issue included: A) a variance and dredge and fill permit, pursuant to Sections 403.201, 403.918, 403.919, Florida Statutes, and Rule 17-312, Florida Administrative Code, authorizing a subaqueous crossing of North Bay (Class II waters) and installation of a force main (permit #031716641), B) a collection system permit, pursuant to Chapter 403, Florida Statutes, and Rules 17-4, 17-600 and 17-604, Florida Administrative Code, for the installation of approximately 11 miles of pipe from North Bay to the proposed treatment plant, C) a dredge and fill permit #031785181, pursuant to Sections 403.918, 403.919, Florida Statutes, and Rules 17-4, 17-312, Florida Administrative Code, authorizing 10 incidental wetland crossings associated with the collection system, and, D) a construction permit #DC03-178814, pursuant to Chapter 403, Florida Statutes, and Rules 17-4, 17-302, 17-600 and 17-611, Florida Administrative Code, authorizing the construction of a 2.0 mgd wastewater treatment plant. Sand Hill Community Improvement Association challenged the Department's Intents to Issue.
The Sand Hill Community Improvement Association (Sand Hill) is an association composed of 74 formal members plus numerous supporters.
Both members and supporters are residents who live near the site of the proposed Lynn Haven sewage treatment plant. They are sufficiently close to the plant site that construction of the proposed project could impact their property. The members are very concerned about any threat of pollution to the aquifer from the proposed plant since all of the members are dependent on private wells for their drinking water. Additionally, members of the association use the proposed site, as well as the associated wetlands, Burnt Mill Creek and the nearby lakes, for a variety of recreational purposes, including hunting, fishing, hiking, bird-watching, boating and swimming. Given these facts, the Association has standing to challenge the Department's Intents to Issue involved in this case.
The City of Lynn Haven is located on a peninsular section of the south shore of North Bay and, except for its connection to the land, is surrounded by environmentally sensitive Class II or Class I waters.
Lynn Haven's existing wastewater treatment plant was poorly designed, has not worked properly, and is old and outdated. The plant is permitted to treat up to 950,000 gallons per day. However, the existing plant is currently exceeding its originally permitted treatment limits and is treating in excess of 1,200,000 gallons per day. The sewage only receives secondary treatment, Secondary treatment is the minimum state standard for wastewater treatment.
The secondarily treated wastewater is pumped several miles to a spray irrigation site located in the eastern portion of the City. The sprayfield site has never worked properly due to a high groundwater table and a confining layer of soil, both of which prevent the effluent from percolating into the ground. Because the sewage effluent cannot percolate into the ground, the existing operation frequently results in direct runoff into a ditch which empties into North Bay, a Class II waterbody. Such discharge of wastewater effluent into Class II waters is prohibited by Department regulations. 1/
At this time, the existing wastewater treatment facility is in violation of both DER and EPA standards and is under enforcement action by both agencies. The existing facility is currently operating without a permit and the Department has advised Lynn Haven that the existing facility as it now operates can not be permitted. In fact, all the parties agree that the City is in serious need of a wastewater treatment facility which works and does not pollute the environment. However, the parties disagree over the method by which proper wastewater treatment could be accomplished by Lynn Haven.
Since 1972, the City, through various consultants and with the aid of DER, has reviewed approximately 40 alternatives for wastewater disposal. After this review, the City of Lynn Haven selected the alternative which is the subject of this administrative hearing.
The alternative selected by the City of Lynn Haven consists of the construction of a proposed advanced wastewater treatment (AWT) plant and distribution system. The new plant will be on a 640 acre parcel of property located approximately 12 miles north of Lynn Haven. The location of the new plant will necessitate the rerouting of the wastewater from the old plant to the new plant by construction of a new transmission line approximately 12 miles north of the City across North Bay and parallel along State Road 77. 2/
The treatment process proposed for use in the new AWT plant is known as the AO2 process. The process is patented.
The AO2 treatment process primarily consists of biological treatment with settling and filtration. The treatment process also includes a chemical backup treatment to further reduce phosphorus if necessary. The evidence demonstrated that this type of facility has been permitted by the Department in at least five other wastewater facilities throughout the state.
The treatment facility will have a two million gallon per day, lined holding pond on site for the purposes of holding improperly treated wastewater for recirculation through the proposed facility. Any excess sludge generated by this treatment process would be routed to lined, vacuum-assisted, sludge drying beds. The sludge would then be transported offsite to a permitted landfill for disposal. The evidence demonstrated that this treatment process would not produce any objectionable odors.
Once the wastewater is treated, it will be disinfected by chlorination to eliminate pathogens. The chlorination process is expected to meet state standards. After chlorination, a dechlorination process would occur to remove any chlorine residuals which would have a harmful affect on the environment.
The treated wastewater would then be re-aerated and discharged through the distribution system indirectly into a wetland located on the 640 acre parcel of property.
The quality of the treated wastewater is expected to meet the advanced wastewater treatment (AWT) standards. These standards are five milligrams per liter total suspended solids (T.S.S.), five milligrams per liter BOD, three milligrams per liter nitrogen (N), one milligram per liter phophorus (P). Ph will be in the range of six to eight units on an average annual basis and can be adjusted up or down if necessary to meet the ph levels of the ecology into which the wastewater ultimately flows. This effluent quality is approximately five times cleaner than secondarily treated effluent. Additionally, as a condition of the draft permit, the proposed facility would be operated by a state-licensed operator and would be routinely monitored to insure that the treated wastewater effluent meets advanced wastewater treatment standards.
Given these facts, the evidence demonstrated that the applicant has supplied reasonable assurances that the plant will perform as represented and that the effluent will meet the state standards for advanced wastewater treatment.
As indicated earlier, the site for the proposed AWT plant contains approximately 640 acres and is located approximately 12 miles north of Lynn Haven in an area known locally as the Sand Hills. The City specifically purchased this parcel of property for the construction of the proposed wastewater treatment plant. The plant itself would be located in the northeast corner of the property.
The 640 acre site was previously used for silviculture. The entire area is currently planted in pines except for a low area that is dominated by a pristine, woody wetland system of titi. The titi wetland is approximately 212 acres in size and generally runs through the center of the property from the northeast to the southwest. The wetland is low in acidity, with an estimated ph between 4 and 5. The site consists of hilly, mineralized soils. The soils within the forested wetland are organic in nature. Based on the evidence at the hearing, there does not appear to be any significant confining layers of soil which would prevent the treated wastewater from percolating in the soils and draining towards the wetland and ultimately into Burnt Mill Creek, a Class III waterbody.
Once the effluent leaves the plant, it would go through a distribution system. The proposed distribution system will consist of six, 500 foot long, 12 inch diameter perforated pipes. Each 500 foot section of pipe has 100 one and one-half inch orifices which will discharge the treated effluent onto an eight foot wide concrete pad. This concrete pad will dissipate the effluent's energy, prevent erosion at the orifice site and insure that the effluent sheetflows onto and eventually into the sandy soils of the plant site and ultimately into the receiving wetland. The distribution pipes are located around the east, north and western portions of the receiving wetland and are variously set back from the receiving wetland approximately 80 to 200 feet. The distribution system is designed with valves to allow for routing of flow to different branches of the system if it is determined through long term monitoring that there is a need to allow for any of the receiving wetland to dry out. None of the distribution branches are located in any jurisdictional wetlands of the State of Florida.
The receiving wetland will receive a hydraulic loading rate of approximately 1.8 inches per week once the new advanced wastewater treatment plant is operating at capacity. Both the surface waters and groundwaters on the 640 acre parcel flow from northeast to southwest across the property. The evidence clearly demonstrated that any treated wastewater discharged on the site would move down hill by surface or groundwater flows towards the wetlands in the central portion of the property and eventually discharge into Burnt Mill Creek located at the southwest corner of the parcel. The evidence demonstrated that it would be highly unlikely for the surface or groundwater to move in any other direction and would be unlikely for the surface or groundwater to move towards any residents located to the north or east of this parcel. Evidence of the topography and its relatively sharp gradient clearly demonstrated that the treated wastewater discharged in the northeast corner of this site would not result in any significant still water ponding and would exit the site at the southwest corner of the property in approximately 14 hours. The evidence did demonstrate that, depending on the wetness of the weather, there may likely be certain times of the year when a flowing type of ponding would occur. However, this wet weather ponding was not shown to be of a duration which would impact to a significant degree on the flora and fauna of the area or increase the number of disease bearing mosquitoes in the area.
As indicated earlier the treated effluent from the proposed AWT plant will flow into Burnt Mill Creek. Burnt Mill Creek will ultimately carry the treated wastewater approximately 11 miles down stream to North Bay. The City can directly discharge up to two million gallons per day of AWT water into Burnt Mill Creek without violating state water quality standards. Therefore, the volume of wastewater discharged into Burnt Mill Creek should not have significant impacts on surface and ground water quality.
Moreover, Chapter 17-611, Florida Administrative Code, authorizes the discharge of up to 2 inches per week to receiving wetlands provided wastewater is treated to AWT standards. The evidence demonstrated that this rule was developed as an experimental effort to determine if wetlands could be appropriate areas for wastewater effluent to be either discharged or treated. These state limits were intended to be very conservative limits and were designed to insure that the impacts to receiving wetlands would be minimal. The evidence and testimony demonstrated that the receiving wetland system involved in this case should not be adversely impacted beyond those limits set forth in Section 17-611.500, Florida Administrative Code, for flora, fauna, macroinvertebrates, fish or vegetation and will meet all standards set forth in Chapter 17-611, Florida Administrative Code. However, it should be noted that the wetland/wastewater program is highly experimental and very little is known about the actual impacts of wetland/wastewater systems since facilities similar to the one proposed by Lynn Haven have not yet been placed in service.
The evidence did show that there would be some long term impacts to flora and fauna in the wetland area primarily due to ponding, changed ph and the introduction of nutrients and pollution in the form of the effluent. However, the regulation does allow for some change within a receiving wetland and the evidence did not demonstrate that these changes would be significant or detrimental. Petitioners' own witness concluded that other deep wetland treatment systems are doing a very good job in meeting state water quality standards. Although Petitioners' expert noted potentially adverse impacts to flora and fauna from other wastewater treatment systems, these other systems were slow moving, impoundment-type systems that are not similar to the wastewater/wetlands system proposed by the City of Lynn Haven. The Lynn Haven system is designed for percolation and sheetflow, not ponding. Though there
should be some expected changes, no evidence was provided that the receiving wetlands for the Lynn Haven facility would be affected to the extent there would be violations of any standard as set forth in Chapter 17-611, Florida Administrative Code. In essence, the legislature has determined that such experimentation with wetland areas is appropriate, albeit, even with the conservative limits of DER's rule, may prove to be a mistake. This facility is designed to fit within that rule and in fact is probably the best technology available for use in a wetland/wastewater situation.
Finally, in order to avoid any potential impacts on the area which may over time become significant an approved monitoring program for surface water quality and affects on flora and fauna, as well as a groundwater monitoring program are required as conditions of the permit. The groundwater monitoring program has been designed to monitor any potential long term impacts to groundwater. With these protections there should not be any significant adverse impacts to surface or groundwater quality and the applicant is entitled to a construction permit for the AWT plant and distribution system.
Lynn Haven's sewage would reach the proposed AWT plant through a transmission line. The transmission line would run from Lynn Haven's existing wastewater treatment plant across North Bay and through the unincorporated area of South Port. The Southport area is not sewered and utilizes individual septic tanks for its sewage. The transmission line would be constructed entirely in state road right-of-way. The line would terminate at the 640 acre site described above.
A new, variable speed pumping station would be constructed adjacent to the old wastewater treatment plant. From this pump station, a 24 inch line would be constructed on City right-of-way up to the south shore of North Bay.
At this point, the transmission line would be reduced in size to 20 inches and would be embedded approximately three feet below the Bay bottom. An additional variable speed pumping station would be located approximately half way along the
12 mile route of the transmission line to insure adequate pressure to pump wastewater to the new wastewater treatment plant.
The pumps are to be employed to insure that the wastewater is continuously pumped uphill to the new site so that waste does not set, become septic, and create odor problems. The pumps are equipped to provide for chemical control of odor if necessary. Also, as a condition of the permit, the pumping stations are required to have backup power supplies should power be lost to the stations. The pumping stations and backup power supplies are to be tested monthly and the pumps are required to be continuously monitored by radio telemetry to insure they are operating properly. Additionally, the City of Lynn Haven will be required, as a condition of the permit, to visually inspect the entire length of the wastewater transmission line three times per day.
The portion of the transmission line which would cross North Bay is approximately 3000 feet in length and would be constructed of high density polyethylene pipe (HDPE) with a wall thickness of one and one-half inches. HDPE pipe is used to transport materials such as hazardous wastes where leakage is not permissible. This type of pipe is virtually inert in that it is highly resistant to corrosion and other chemical reactions. It is also impact resistant and has a very high tensile strength. The pipe comes in 40 foot segments and is heat welded (fused) together. This type of joint significantly reduces the chance of any leakage. In fact, leakage around pipe joints is more likely to occur with other types of pipe and pipe connections. HDPE pipe is currently carrying wastewater across Watson Bayou in Bay County, Florida. 3/
There have been no reported problems with leaks or breaks occurring in the pipe crossing Watson Bayou. Given these facts, the probability of the proposed HDPE pipe leaking or breaking is extremely low, albeit not impossible, and such pipe appears to be the best material available for constructing a wastewater treatment transmission line across protected waters of the State.
As a condition of the construction permit, the portion of the transmission line crossing North Bay will be required to have isolation valves at each end so that the pipe may be completely isolated in the event that it needs repair. The underwater portion of the line would be visually inspected by a diver twice per year and the line would be pressure tested before being placed into service. Additionally, pressure tests would be performed once a year. The construction permit also requires Lynn Haven to periodically inject dye into the proposed transmission line to check for any small leaks that may not otherwise be detected. Finally, the HDPE pipe would also be equipped so that television cameras could be inserted into the pipe to routinely inspect the interior of the pipe.
In the event the HDPE portion of the transmission line would need to be repaired, the line could be immediately, temporarily repaired by a dresser coupling. A permanent repair could then be made in less than 24 hours once the material and equipment were staged at the site. The City intends to locally stockpile all necessary parts and equipment to effect any required repair to prevent any delay beyond four days. Permanent repairs would be accomplished by floating the line to the surface. The area needing repair would be cut out and a new section would be put in place by heat fusion. The line would then be pressure tested to insure the absence of leaks and placed back into service. During this process, the line would be taken out of service by the isolation valves and flow would be diverted to the eight million gallon holding ponds at the City of Lynn Haven's existing facility. These holding ponds can hold four days worth of wastewater from the City of Lynn Haven. Lynn Haven is required, as a condition of the construction permit, to have this reserve capacity as well as have a contractor on standby to make any repairs in the event such repairs are necessary.
All of the technical specifications for the transmission system and the operating conditions imposed on it are designed to insure that the system does not fail or develop any leaks which could impact receiving waters, including North Bay. Given the permit conditions, the required inspections for leaks, the sound engineering design and quick repair methods proposed, the evidence demonstrated that the probability of any leak occurring in the portion of the transmission line crossing North Bay is extremely low and that if such a leak does occur any potential harm to the environment will likely be limited and quickly eliminated. The evidence demonstrated that the design of the transmission line and permit conditions provide reasonable assurances that the transmission line will meet or exceed the Department standards set forth in Chapter 17-604, Florida Administrative Code. Therefore, the applicant has provided reasonable assurances that the transmission line/collection system will not violate Department standards or rules and the applicant is entitled to a permit (permit #CS03-178910) for the proposed collection system.
In addition to requiring a construction permit/collection system permit for the wastewater transmission line, the line will also require dredge and fill permits and a variance for crossing waters of the state. There are ten incidental crossings of state waters and one major crossing o f North Bay. Of the ten incidental crossings, two are over small creeks (Scurlock and Little Burnt Mill) These two incidental creek crossings will be accomplished by placing
the transmission line (ductile iron pipe) on top of pilings placed in the water. Best management practices such as turbidity curtains and other erosion control practices are proposed and required by the permit to minimize construction impacts on water quality. The only impacts to wetland resources would be from the placement of the pilings. The evidence demonstrated that any impact would be minimal and not significant. The evidence did not demonstrate that the aerial crossings would have any long term water quality or environmental impacts.
The remaining eight incidental crossings of waters of the state consist of small, seasonally wet ditches which would be traversed by trenching and burying the transmission line. Again, turbidity controls such as curtains and hay bales would be employed to protect water quality. The evidence did not demonstrate that any significant long term or short term impacts to resources of the state would occur.
The evidence did demonstrate that the applicant has provided reasonable assurances that water quality standards would not be violated in regards to these 10 incidental water crossings. Likewise, the evidence demonstrated that the construction of these 10 incidental water crossings would not be contrary to the public interest. Therefore, the applicant is entitled to issuance of a dredge and fill permit (permit #031785181) for these 10 water crossing.
However, a much harder question arises in relation to the dredge and fill permit and the variance required for the 3,000 foot segment of the wastewater transmission line which crosses North Bay. Pursuant to Rule 17- 312.080(7), Florida Administrative Code, permits for dredging and filling activity directly in Class II waters which are approved for shellfish harvesting by the Department of Natural Resources (DNR) shall not be issued. The reason for the rule is that any pollution caused by dredging and filling and, as in this case, the permanent placement of a sewage pipe in food producing waters could potentially have catastrophic effects on more than just the environment but on local employment in the shellfish industry and the quality of food available to the State. Put simply, the Department has determined by enacting its Rule that the public interest in food producing waters far outweighs any other consideration or criteria under Sections 403.918 and 403.919, Florida Statutes, in determining whether dredging and filling should take place in Class II, shellfish waters. In other words, it is not in the best interest of the public to allow dredging and filling so that a pipe carrying raw sewage can be placed in shellfishing waters. However, irrespective of this determination,
the Department believes that, pursuant to Section 403.201(1)(c), Florida Statutes, it may grant a variance from its rules to relieve a hardship.
As indicated earlier, North Bay is a Class II waterbody, conditionally approved for shellfishing. North Bay, therefore, falls within the Rule's prohibition against dredging and filling in Class II waters and the City is required to demonstrate the presence of a hardship in order to vary the Rule prohibition and obtain a dredge and fill permit for the North Bay crossing.
On issues involving variances, the Department employs a two step analysis. The first part of the analysis is whether a hardship is present and the second is whether, if the variance were granted, would it result in permanent closure of Class II shellfish waters. The Department correctly recognizes that the question of whether a hardship exists is a question of fact and is determined on a case-by-case basis. Surprisingly, in a kind of "what we don't know can't hurt" posture the Department reviews a request for a variance
standing alone based on the application as it is presented and does not require analyses of other possible alternatives to the granting of a variance. However, the existence of any alternatives, costs of any alternatives, timeliness of any alternatives, problems with any alternatives, whether an alternative represents a short term or long term solution to a given problem and the implementability of any of the alternatives are all factors utilized by the Department in determining whether or not to grant a variance. The Department's policy of non- review makes no sense, either factually or statutorily, when the Department is faced with varying a prohibition it created in its own rules. Similarly, the Department's policy of not requiring other alternatives to be examined before granting a variance goes against the fact that an applicant has the burden to establish entitlement to a permit and, in the case of a hardship variance, that a hardship exists because reasonable alternatives to granting a variance are not available. 4/ Likewise, the second part of the Department's hardship analysis relating to the permanent closure of shellfishing waters makes no sense given the fact that a non-permanent closure of shellfishing waters may have the same or just as serious effect on employment in the shellfishing industry, the loss of income due to an inability to earn a living in that industry and health risks posed by contaminated seafood. Temporary loss of income or a livelihood can, for all practical purposes, have consequences to the persons directly affected by a temporary closure of shellfishing waters similar in nature those caused by the permanent closure of shellfishing waters. The same can be said for health risks posed by a contaminated food supply. Rule 17-312.080(7), Florida Administrative Code, does not contain any exceptions for the temporary closure of shellfish waters. Nor is the rule limited to instances of permanent closure. Permanent closure is simpy not required in order to support a hardship under Section 403.201, Florida Statutes.
Moreover, neither step in the Department's two-step analysis is included in any Rule promulgated by the Department. 5/ Without such a Rule, it is incumbent upon the Department or the applicant to demonstrate the underpinnings for this non-rule policy. No such evidence was presented at the hearing. In fact, the evidence presented at the hearing affirmatively demonstrated that the Department's non-rule policy violated both its own rules and the statute under which it is trying to proceed.
As indicated, the issue of hardship is a question of fact and involves a weighing of all the facts and cicumstances involved in this project. In this case, there are shellfishing areas located close to the proposed location of the transmission line. North Bay is sometimes closed to shellfish harvesting by the Department of Natural Resources. These closures generally occur during wet weather conditions and are due to stormwater runoff and the failure of septic tanks in Southport. 6/ Additionally the current Lynn Haven system also contributes to the closure of North Bay. No competent, substantial evidence was provided that issuance of the permit and variance would result in the permanent closure of shellfish waters.
The location of the proposed transmission line would be several hundred feet west of the Bailey Bridge embedded in the Bay floor. 7/
The proposed alignment of the transmission line through North Bay is in an area which is relatively biologically unproductive. The proposed placement of the transmission line avoids the few grassbeds that exist in the nearshore shallow areas except for approximately 200 square feet of grass. During construction of the line, these grasses would be removed immediately before the line is placed in a trench and then would be promptly replanted in the same area. The evidence demonstrated that the affected areas of grass
should be able to reestablish itself. The evidence further demonstrated that there would not be any long term adverse impacts to these aquatic resources and there should not be any significant long term impacts on the balance of any aquatic life which may exist on the bay bottom. Water quality during construction will be protected by use of turbidity controls to control sediments. Therefore, any short term impacts on aquatic resources are likely to be insignificant. Concerns about long term adverse impacts to Class II waters are greatly reduced by the type of pipe and conditions in the permit which require that the transmission line be routinely inspected and tested to insure that there is no leakage and that in the unlikely event the line should need to be repaired, the line could be easily isolated and quickly repaired.
The evidence showed that, to completely avoid Class II waters, the line could be moved several miles to the west or east of the line's proposed location or be placed over or under the Bay. If the line was moved west to the extent that it was in Class III waters, it would be over 40 miles long and would more than double the cost of the project. If the line was moved several miles to the east, it would go through the Deer Point Lake Watershed. The watershed is a Class I water supply for Bay County. Clearly, moving the line either west or east is not practical nor realistically feasible. Tunneling under North Bay would be very risky and is not technically feasible. The length of the tunnel would require steel pipe to be used. If tunneling could be done at all steel pipe would not provide the level of protection afforded by the HDPE pipe proposed by Lynn Haven. Placing the transmission line on pilings for an aerial route over North Bay is uneconomical and would create a potential hazard to navigation. Moreover, an aerial crossing would not solve any pollution problems should the transmission line leak or break and would also still involve a variance request since it would be necessary to dredge and fill in Class II waters for the placement of pilings or supports. Put simply, the evidence, showed that there was no realistic way to avoid Class II waters in North Bay given the location of the proposed wastewater treatment facility. A location which the City knew would require a hardship variance from the rule prohibition of dredging and filling in Class II, shellfishing waters. A hardship which the City created by site selection and which it hoped to overcome by strenuous permit conditions and futuristic speculative benefits to unsewered areas of the County.
The existing treatment facility is operating in violation of both EPA and DER requirements, has been issued a notice of violation, is nonpermitted and is destined to be operating under a consent order. The system is hydraulically overloaded, handling approximately 1.2 million gallons per day while its rated capacity is 950,000 gallons per day. Refurbishing Lynn Haven's existing wastewater treatment facility would not be viable since the plant has outlived its useful life, is of a very poor design and probably could not be made to function within Departmental standards and water quality standards. The existing sprayfield does not function and results in overland flow of effluent which discharges to Class II waters. The high water table and presence of a semiconfining layer on the Lynn Haven peninsula virtually guarantee such discharges. Further, the plant only provides secondary treatment. Put simply, Lynn Haven needs another method of handling its sewage.
The only remaining alternative to a Bay crossing is to tie into the existing Bay County system and any AWT wastewater treatment plant Bay County may build in the future. 8/ The existing Bay County system provides at most only secondary treatment. The Cherry Street facility, which is part of that system, functions essentially as a lift station rather than a treatment facility. The Military Point Lagoon portion of the system is nonpermitted and is operating
under a consent order and has been the subject of enforcement action. The Department has an extensive agreement with Bay County requiring a significant and long term series of actions to deal with their wastewater treatment system. The modifications or improvements to the Bay County system to provide advanced treatment are not imminent and the final system conditions cannot now be determined as they will depend in large measure upon data and analysis remaining to be collected. Currently, the existing Bay County system processes a significant amount of industrial discharge and has a problem with phenols most likely due to industrial waste from two discreet industrial facilities in the County. 9/ However, all of Bay County's wastewater system problems are reasonably solvable and will be corrected in the near future, if they have not already been corrected. Additionally, the amount of sewage Lynn Haven would be sending into the current Bay County system probably would not significantly impact that system and its problems or the County's ability to solve those problems. The County is willing to accept Lynn Haven's sewage into its system and future AWT system. The connection into Bay County's system is a viable alternative currently in existence.
Moreover, as indicated, Bay County has a long range plan to build an advanced wastewater treatment plant. As yet the plan remains "just a twinkle in the County's eye" and has not progressed to the design stage. However, this plan, of necessity, will eventually become reality in the next 5 to 10 years. The estimated cost to a Lynn Haven user for the Bay County conceptual system will be $25.00 per month in lieu of $15.00 for the proposed Lynn Haven system. These estimates are at best speculative. However, this cost estimate is not excessive given the fact that a Lynn Haven user lives in an environmentally sensitive area and a Bay County hook-up would eliminate the need to run a sewer pipe through food producing, Class II waters. 10/
Based on these facts, the evidence demonstrated that it was feasible for Lynn Haven to hook into Bay County's wastewater system without creating any more environmental impacts than that system is already experiencing and must solve and which, to a significant degree, have already been solved by Bay County. Given the existence of this alternative to crossing food producing waters and the fact that any future benefits are just as likely to be provided just as quickly by the County through AWT facilities, the applicant has failed to demonstrate the necessity for crossing North Bay and failed to demonstrate entitlement to a hardship variance for that crossing. Therefore, the applicant is not entitled to either a dredge and fill permit or variance for the proposed North Bay crossing.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).
The Department's permitting requirements for a collection system/transmission line are set forth in Chapter 17-604, Florida Administrative Code. These standards require that the facility be designed, constructed, operated and maintained in a manner that will transport wastewater in an environmentally sound manner. Section 17-604.100(7), Florida Administrative Code. A permit may only be issued to the City of Lynn Haven if the applicant affirmatively provides the Department with reasonable assurances, based upon plans, test results, installation of pollution control equipment or other information, that the construction and operation of the installation will not discharge, emit or cause pollution in contravention of the Department's
standards or rules. Sections 403.087 and 403.088, Florida Statutes, and Section 17-4.070(1), Florida Administrative Code. Further, the Department may issue any permit with specific conditions necessary to provide reasonable assurances that the Department's standards will be met. McDonald v. Department of Banking and Finance, 346 So.2d 569, 579 (Fla. 1st DCA 1977). All of these considerations are susceptible to standard methods of proof and do not involve any particular policy considerations which require deference to the special expertise of the Department. McDonald, supra.
The burden of showing entitlement to the requested transmission line permit as well as all of the other permits involved in this case is upon the applicant. Florida Department of Transportation v. JWC Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Based upon the application of the above stated statutes and rules to the evidence including the City's application, specifications for design and construction, and permit required operating conditions, the Applicant has sustained its burden of providing reasonable assurances that the proposed transmission line will meet or exceed Departmental standards. Therefore, the Applicant is entitled to issuance of Permit No. CS03- 178910 for the transmission line.
The Department's permitting requirements for a construction permit to build a wastewater treatment facility which discharges into receiving wetlands are set forth in Chapter 17-611, Florida Administrative Code. This regulation acknowledges that the use of wetlands to treat or receive wastewater effluent is a field where there is limited knowledge. Section 17-611.100(5), Florida Administrative Code. In order to show entitlement to a construction permit for discharge to receiving wetlands the applicant must meet the requirements set forth in Rules 17
611.70, Florida Administrative Code. The wastewater treatment facility also must meet the design and construction requirements in Chapter 17-600, Florida Administrative Code. Specifically, a permit may only be issued by the Department if the applicant affirmatively provides reasonable assurances that Departmental standards will not be contravened. Rule 17-4.0701, Florida Administrative Code. Reasonable assurances may be met by requiring specific conditions in the permit. Section 17-4.070(3), Florida Administrative Code. Again, none of these considerations involve any particular policy considerations which require deference to the special expertise of the Department.
Additionally, all of these considerations are susceptible to ordinary methods of proof.
The preponderance of the evidence presented at the hearing demonstrated that the wetlands application system proposed by Lynn Haven will meet the Department's advanced wastewater treatment standards as a result of the design of the wastewater treatment facility. Furthermore, the design of the distribution system, the quality of the effluent and application rate will insure that both the qualitative and quantitative criteria of Chapter 17-611, Florida Administrative Code will not be contravened. The surface discharge from the receiving wetlands will not violate water quality standards in Burnt Mill Creek and the standards within the treatment wetlands will not be contravened beyond that which is allowed by the regulation. The monitoring programs, which significantly exceed rule requirements, have been provided and will be initiated before construction of the facility starts.
Although some testimony was offered by Petitioners that there may be adverse impacts to the flora and fauna, it is clear that the regulations contemplate some change. The evidence did not establish that any expected
impacts to the flora and fauna of the area would violate the standards for surface water, groundwater and receiving wetlands.
Given these facts and the design of the facility, the Applicant has given reasonable assurances that the standards in regards to surface water, groundwater and receiving wetlands would not be contravened. Therefore, Permit No. 178814 should be issued to Applicant in this case.
In order to show entitlement to the dredge and fill permits, the applicant must provide reasonable assurances that water quality standards will not be violated and the project is not contrary to the public interest. In deciding whether to grant or deny the permit, the Department must also consider cumulative impacts. Sections 403.918, 403.919, Florida Statutes, and Rule 17- 3.12.080, Florida Administrative Code.
In this case, dredge and fill permits are required for 10 incidental crossings of waters of the state (permit #031785181) and for crossing North Bay (permit #031716641). Each permit will be dealt with separately.
In regards to the 10 incidental crossings of waters of the state involved in the City's application the better evidence demonstrated that water quality standards will not be violated during construction of the transmission line since turbidity curtains and other best management practices will be employed to protect water quality. No evidence was offered that the line would adversely affect water flows, cause erosion, impede navigation or have any adverse impacts on historic or archeological resources or be adverse to the public interest. It is uncontroverted that the impacts from the 10 incidental crossings are expected to be minimal and insignificant. Based upon an application of the statutes and rules to the evidence introduced at hearing, the Applicant has sustained its burden of providing reasonable assurances for the 10 incidental crossings and the Department should issue dredge and fill Permit No. 031785181. See, Shablowski v. Department of Environmental Regulation, supra and Isles of Capri Public Association v. Department of Environmental Regulation, DOAH Case No. 79-2415 (April 11, 1980).
However, the North Bay crossing is a different matter since to issue a dredge and fill permit for crossing North Bay requires a variance from Rule 17.312.080, Florida Administrative Code, Rule 17.312.080, Florida Administrative Code, states in pertinent part:
(7) Permits for dredging or filling directly in Class II or Class III waters which are approved for shellfish harvesting by the Department of Natural Resources shall not be issued. However, the Department may issue permits or certifications for maintenance dredging of navigational channels, for the construction of shoreline protection structures and for the installation of trans- mission and distribution lines for carrying potable water, electricity or communication cables in rights-of-way previously used for such lines.
Variances are controlled by Section 403.201, Florida Statutes. 11/ Section 403.201, Florida Statutes, states, in pertinent part:
Upon application, the department in its discretion may grant a variance from the provisions of this act or the rules and regulations adopted pursuant hereto. Variances and renewals thereof may be granted for any of the following reasons:
There is no practicable means known or available for the adequate control of the pollution involved.
Compliance with the particular requirement or requirements from which a variance is sought will necessitate the taking of measures which, because of their extent or costs, must be spread over a considerable period of time. A variance for this reason shall prescribe a timetable for the taking of the measures required.
To relieve or prevent hardship of a kind other than those provided for in paragraph (a) and (b). Variances and renewals thereof granted under authority of this paragraph shall each be limited to a period of 24 months, except that variances granted pursuant Part II. [Electrical Power Plant Siting] may extend for the life of the permit or certifi- cation.
The variance sought in this case is the hardship variance provided for in Section 403.201(1)(c), Florida Statutes. The Department has adopted rules in furtherance of Section 403.201. Rule 17-103.100(1), Florida Administrative Code, provides factors which must be addressed in evaluating any request for a variance. The Rule states in pertinent part:
The social, economic and environmental impacts on the applicant, residents of the area and of the state if the variance is granted.
The social, economic and environmental impacts on the applicant, residents of the area and of the state if the variance is denied.
The rule further provides that variances shall be denied or granted at the discretion of the Secretary of the Department. Chapter 17-103.100(3), Florida Administrative Code.
In order to establish entitlement to a hardship variance the applicant must demonstrate a 'unique hardship' in order to qualify for the variance.
Nance v. Indialantic, 419 So.2d 1041 (Fla. 1982). See also, Town of Indialantic
v. Nance, 400 So.2d 37 (Fla. 5th DCA 1981). The hardship must be exceptional and unique to the individual landowner or parcel of property and not be shared by other property owners or parcels in that area. City of Miami v. Franklin Leslie, Inc., 179 So.2d 622 (Fla.3d DCA 1965). Additionally, a party seeking a variance cannot assert the benefit of a self-created hardship. Josephson v.
Autrey, 96 So.2d 784 (Fla. 1957); Green v. Miami, 107 So.2d 390 (Fla. 3d DCA
1957); Clarke v. Morgan, 327 So.2d 769 (Fla. 1975); Friedland v. Hollywood, 130
So.2d 306 (Fla. 1961); Blount v. Coral Gables, 312 So.2d 208 (Fla. 3d DCA 1975). As stated in Elwyn v. Miami, 113 So.2d 849 (Fla.3d DCA 1959):
An applicant is not entitled to a variance when his problems with regard to use of land are created by his own conduct rather than by circumstances relating peculiarly to the land itself. It has also been held that where the hardship is self-created and where the applicant purchased property with know-
ledge of the zoning or other restrictions, he is not entitled to relief by variance. (emphasis supplied).
Finally, unlike a permit where the applicant need only demonstrate "reasonable assurance" in order to prevail, a variance, by its very nature, is far more difficult to obtain. An applicant must prove that he has no choice but to violate the law. Since these laws are set up to protect the public, permission for the individuals to violate the law must be given sparingly. 12/
In this case, a self-created hardship is present since the City created the alleged hardship when it selected the a site for its proposed AWT plant on the shore opposite the City and since the City knew of the prohibition of dredge and fill activities in North Bay prior to selecting the plant's site. See Burger King Corp. v. Metropolitan Dade County, 349 So.2d 210 (Fla. 3d DCA 1977); Naples v. Clam Court Marina Trust, 413 So.2d 475 (Fla. 2d DCA 1982); Thompson v. Planning Commission of Jacksonville, 464 So.2d 1231 (Fla. 1st DCA 1985) and Namon v. Department of Environmental Regulation, 558 So.2d 504 (Fla. 3d DCA 1990).
Added to the above is the fact that the area of the North Bay crossing which will be impacted is not very productive and is expected to recover from any short term construction impacts within one year. What few grassbeds are impacted will be salvaged and saved for replanting immediately after construction and they are expected to survive. Any long term impacts to water quality or marine resources are expected to be minimal due to the nature of the conditions imposed in the transmission line Permit No, CS03-178910. All of these impacts can be avoided by not crossing the Bay and hooking onto Bay County's sewer system. Except for the danger created by running a sewer pipe through a food producing area, the cummulative impacts should be positive since approval of the transmission line will result in the elimination of the City of Lynn Haven's current noncomplying sprayfield which drains into North Bay. However, this benefit will also be achieved by the City connecting on to Bay County's system.
On the other hand, there will be a tremendous amount of sewage being pumped through this transmission line. This project more than likely will have minimal impacts; however, any accident or leak which may occur has the potential for serious consequences to not only the environment, but to employment in the local shellfishing industry as well as the food supply taken from the Bay. The Department has recognized this potential harm in Rule 17-312.080, Florida Administrative Code, and has already decided that the public's interest in protecting food producing waters is paramount to permitting dredge and fiil activities in Class II, shellfishing waters. Additionally, the evidence
demonstrated an existence of at least one viable and preferable alternative to the North Bay crossing which would also provide the same benefits which might be derived from Lynn Haven's proposed system.
On balance, the evidence demonstrated that Lynn Haven can achieve proper wastewater disposal without crossing North Bay. The evidence did not disclose an exceptional hardship for which there is no alternative but to violate the law. Given these facts, no hardship exists which can formulate the basis for granting a variance in this case and neither a variance or the dredge and fill permit No. 031716641 should be granted.
Based on the foregoing findings of fact and conclusions of law, it is, recommended that the Florida Department of Environmental Regulation enter a final order issuing permit applications CS03178910, DC03178814, and 031785181, and denying the variance and permit number 031716641.
RECOMMENDED this 27th day of November, 1991, in Tallahassee, Florida.
DIANE CLEAVINGER
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 27th day of November, 1991.
ENDNOTES
1/ The evidence demonstrated that land application of wastewater within the City has not worked and is not feasible within the City.
2/ The proposed project is estimated to cost approximately $9.7 million to construct. This estimate does not include any costs for the operation and maintenance of the proposed project. The operation and maintenance costs for this type of facility with its permit conditions will be greater than in an ordinary sewage treatment plant. However, these costs should not be excessive given the level of treatment of the sewage the proposed project will achieve.
3/ The Watson Bayou pipe was installed prior to adoption of the rule prohibition against dredge and fill activities in Class II, shellfishing waters.
4/ In point of fact, the Department does not have the legal authority to compel a community to accept an alternative such as contracting with others for services. However, practically speaking, the denial of a variance and dredge and fill permit because no hardship exists can have such an effect.
5/ See Rule 17-103.100, Florida Administrative Code, which governs petitions for variances.
6/ DER and DNR expert witnesses concluded that the opportunity to provide sewer service to the Southport area on the north shore of North Bay, would have a positive cumulative impact by taking the community off septic tanks. However, this opportunity exists far in the future and is nothing more than a hoped for desire on the part of state officials and Lynn Haven. Such a hoped for "benefit" is simply too speculative at this point in time and may not serve as a basis on which any findings can be made. Moreover, the evidence demonstrated that the County also has "hopes and plans" of providing sewage to the Southport- Sand Hills area of Bay County. This region is under the County's jurisdiction. Given these far off plans, it is just as likely that the county will provide segregated facilities for this area without crossing North Bay and just as quickly as Lynn Haven should it receive the permit and variance for North Bay.
7/ Originally the City of Lynn Haven requested authorization from the Florida Department of Transportation to attach the transmission line to the bridge.
However, City engineers were advised by the Department of Transportation that the bridge was already exceeding its weight limitations and the transmission line could not be attached to the bridge.
8/ No competent substantial evidence was adduced that the City of Panama City was committed to provide sewer service to Lynn Haven.
9/ The majority of the industrial waste in the Bay County system is generated by the paper mill, Stone Container Corporation, and the chemical company, Arizona Chemical Company. Lynn Haven's waste is not projected to contain significant quantities of industrial waste.
10/ Environmentally sensitive areas, such as Lynn Haven and large portions of Bay County, will very likely result in higher costs to the public in order to protect these very sensitive areas. Such costs are the price of living in environmentally sensitive areas and unless excessive do not result in a hardship.
11/ Under Section 403.201, Florida Statutes, the legislature has carved out only a very few narrowly-defined situations where relief from the environmental protection laws may be obtained. The variance statute refers only to variances from "this act." The act referred to in the statute is the Florida Air and Water Act. The Florida Air and Water Act does not generally apply to dredge and fill activities, such as the North Bay crossing. The Florida Air and Water Act does generally apply to air and water pollution dischargers, including wastewater treatment facilities. Since the dredge and fill activity involved in the North Bay crossing relates to a wastewater treatment facility it is arguable that the variance statute applies in this case. However, the issue of the statute's applicability need not be reached in this case since the City has failed to establish the existence of a hardship.
12/ In fact, no variances have ever been granted under Rule 17-312.080(7), Florida Administrative Code since it was passed in 1989. The previous rule, Rule 17-12.070(6), Florida Administrative Code, allowed dredging in Class II seafood areas. Obviously, the prior rule was inadequate to protect the resource and the new rule was passed to remedy the deficiency and provide better protection. A variance would undo that.
APPENDIX TO RECOMMENDED ORDER, CASE NOS. 90-0254 AND 90-6913
The facts contained in paragraphs 1, 2, 4, 5, 9, 26, 27, 28, 31, 38, 41, 55, 56,
58, 70, 84, 85, 89, 97, 101, 136, 141, 174, and 176 of Petitioner's Proposed Findings of Fact are adopted in substance, insofar as material,
The | facts contained | in paragraphs 3, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, | |
18, | 19, 20, 21, 22, | 24, 25, 29, 30, 32, 33, 34, 35, 36, 37, 39, 40, 44, 45, 46, | |
47, | 48, 49, 50, 51, | 52, 53, 54, 57, 59, 60, 62, 63, 64, 65, 66, 67, 68, 72, 74, | |
75, | 76, 77, 78, 79, | 80, 82, 83, 86, 87, 90, 91, 92, 93, 98, 99, 100, 102, 103, | |
104, 105, | 106, 107, | 108, 111, 112, 114, 118, 119, 121, 123, 124, 126, 133, 134, | |
137, 138, | 139, 140, | 142, 143, and the first four subparagraphs of paragraphs | |
145, 146, | 147, 148, | 149, 150, 152, 153, 154, 156, 158, 159, 162, 163, 165, 166, | |
167, 169, | 171, 173, | 177, 178, 179, 180, 181, 182, 183, 184, 186, 191, 192, 193, | |
194, 195, 197 and 198 of Petitioner's Proposed Findings of Fact are subordinate.
The facts contained in paragraphs 23, 42, 43, 73, 81, 88, 109, 113, 115, 116
120, 122, 125, 128, 129, 130, 131, 132, 135, 144, the last subparagraph 145,
151, 155, 157, 160, 161, 164, 168, 172, 175, 185, 188, 189, 190 and 196 of
Petitioner Proposed Findings of Fact were not shown by the evidence.
The facts contained in the first two sentences of paragraph 61 of Petitioner Proposed Findings of Fact are subordinate. The remainder of the paragraph was not shown by the evidence.
The facts contained in the first sentence of paragraph 69 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The remainder of the paragraph is subordiante.
The facts contained in the last sentence of paragraph 94 of Petitioner Proposed Findings of Fact were not shown by the evidence. The remainder of the paragraph is subordinate.
The facts contained in the last sentence of paragraph 95 of Petitioner Proposed Findings of Fact were not shown by the evidence. The remainder of the paragraph is subordinate.
The facts contained in the first sentence of paragraph 96 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The remainder of the paragraph is subordinate.
The facts contained in the 1st sentence of paragraph 110 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The remainder of the paragraph is adopted.
The facts contained in the last sentence of paragraph 117 of Petitioner's Proposed Findings of Fact are subordinate. The remainder of the paragraph was not shown by evidence.
The facts contained in the last sentence of paragraph 127 of Petitioner's Proposed Findings of Fact are adopted. The remainder of the paragraph was not shown by the evidence.
The facts contained in the last sentence of paragraph 170 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The remainder of the paragraph is subordinate.
Paragraph 187 of Petitioner's Proposed Findings of Fact is a legal conclusion which is not adopted.
The facts contained in paragraphs and their subparagraphs 1, 2, 5, the first four subparagraphs of paragraphs 6, 7, and first two subparagraphs of paragraph
8 and 9, and subparagraphs 7 and 8 of paragraph 10 of Lynn Haven's Proposed Findings of Fact are adopted in substance, insofar as material,
The facts contained in paragraphs 3 and 4, the third subparagraph of paragraph 8, and subparagraph 9 of paragraph 10 of Lynn Haven's Proposed Findings of Fact are subordinate.
The facts contained in the first sentence of the 5th subparagraph 6 of Lynn Haven Proposed Findings of Fact are adopted. The remainder of the subparagraph is subordinate.
The facts contained in the 1st sentence of the 6th subparagraph of paragraph 10 of Lynn Haven's Proposed Findings of Fact are adopted. The remainder of the subparagraph of subordinate.
The facts contained in the 1st sentence of the 5th subparagraph of paragraph 10 of Lynn Haven's Proposed Findings of Fact were not shown by the evidence. The remainder of the 5th subparagraph is subordinate.
The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 10, 11, 12, 13, 14, 16, 18,
19, 20, 21, 22, 23, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39,
40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54 and 57 of the
Department of Environmental Regulation's Proposed Findings of Fact are adopted in substance, insofar as material,
The facts contained in paragraphs 8, 9, 55 and 56 of the Department of Environmental Regulation's Proposed Findings of Fact are subordinate.
The facts contained in the first sentence of paragraph 7 of the Department of Environmental Regulation's Proposed Findings of Fact are adopted. The remainder of the paragraph is subordinate.
The facts contained in the 1st, 9th and tenth sentences of paragraph 15 of the Department of Environmental Regulation's Proposed Findings of Fact were not shown by the evidence. The seventh sentence of paragraph 15 is adopted. The remainder of the paragraph is subordinate.
The facts contained in the 1st sentence of paragraph 17 of the Department of Environmental Regulation's Proposed Findings of Fact were not shown by the evidence. The remainder of the paragraph is subordinate.
The facts contained in the first sentence of paragraph 24 of the Department's Proposed Findings of Fact are adopted. The remainder of the paragraph is subordinate.
COPIES FURNISHED:
Steve Lewis, Esquire Post Office Box 1876
Tallahassee, Florida 32302
Randall E. Denker, Esquire 3425 Woodley Road
Tallahassee, Florida 32312
Michael P. Donaldson, Esquire State of Florida Department of
Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
Carol Browner, Secretary
State of Florida Department of Environmental Regulation
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Daniel H. Thompson, Esquire State of Florida Department of
Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:
ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.
=================================================================
AGENCY FINAL ORDER
=================================================================
BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
JOHN E. PILCHER, et al.,
Petitioner,
vs. OGC CASE NOS. 90-1198
89-1674
BAY COUNTY and DOAH CASE NO. 90-0254 AND STATE OF FLORIDA,
DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondents.
SAND HILL COMMUNITY IMPROVEMENT ASSOCIATION,
Petitioner
vs. OGC CASE NO. 90-1606
DOAH CASE NO. 90-6913
CITY OF LYNN HAVEN and
STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondents.
/
FINAL ORDER
On November 27, 1991, a Hearing Officer from the Division of Administrative Hearings submitted her Recommended Order to the Department of Environmental Regulation (Department) and all others parties to this action. A copy of the Recommended Order is attached as Exhibit A. Respondents City of Lynn Haven (Lynn Haven) and the Department timely filed exceptions to the Recommended Order. On December 17, Petitioner Sand Hill Community Improvement Association (Sand Hill) filed a notice of withdrawal of counsel. On December 26, Mr. Erik Reppen, President of Sand Hill, filed responses to Respondents' exceptions, a request for oral argument, a motion to supplement the record, a motion to extend time for filing exceptions, and a motion to dismiss. The motion for extension of time was denied in a separate order entered January 6, 1992, and Sand Hill filed no exceptions. The matter thereupon came before me as Secretary of the Department for final agency action.
BACKGROUND
At issue in this case are several permits sought by Lynn Haven which would allow it to construct a new two million gallon- per-day advanced wastewater treatment facility and collection system. The Department's Northwest District Office issued Intents to Issue Permit No. CS03-178910 for the construction of 12 miles of wastewater transmission line and collection system; Permit No. DC03- 178814 for the construction of an advanced wastewater treatment facility and distribution system to receiving wetlands; Permit No. 031785181 for dredging and filling associated with ten incidental crossings of waters of the state; and Permit No. 031716641 for dredging and filling in Class II waters approved for shellfish harvesting, which permit included a variance. Petitioners timely filed requests for formal administrative proceedings for each permit and the associated variance. All petitions were referred to the Division of Administrative Hearings and consolidated.
Following an evidentiary hearing on April 1-5 and 16, 1991, the Hearing Officer recommended that the Department issue all permits except for the dredge and fill permit for Class II waters. The Hearing Officer recommended denial of that permit based upon her recommendation that the Department deny the variance associated with it.
References to pages in the transcript shall be "T. #." References to the Recommended Order shall be "F.O.F. #` (for numbered Findings of Fact) or "C.O.L. #" (for numbered Conclusions of Law). Citations to rules, unless otherwise noted, are to Department rules found in Florida Administrative Code (F.A.C.). I would also note that the Recommended Order contains a clerical error. On page 42, Conclusions of Law 15 and 16 should properly be numbered 17 and 18, respectively, and I shall so refer to them.
RULINGS ON EXCEPTIONS
The Department has filed 18 exceptions to the Recommended Order. Lynn Haven has filed 27 exceptions to the Recommended Order. Neither Petitioner has filed exceptions. My review of these exceptions must be undertaken within the constraints of Section 120.57(1)(b)10., Florida Statutes (F.S.), which provides that findings of fact made by a Hearing Officer in administrative proceedings must be upheld where they are based upon competent substantial evidence.
Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987). I am not free to reweigh the evidence or rejudge the credibility of witnesses. Heifitz v. Department of Business Reulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985). However, I am not bound by the Hearing Officer's conclusions of law. I am free to substitute my own legal conclusions for those of the Hearing Officer, so long as competent, substantial evidence supports my legal conclusions. Harloff v. City of Sarasota, 575 So.2d 1324 (Fla. 2d DCA 1991); MacPherson v. School Board of Monroe County, 505 So.2d 682 (Fla. 3d DCA 1987); Hunter v. Dept. of Professional Regulation, 458 So.2d 842 (Fla. 2d DCA 1984).
Because the exceptions are so numerous and often somewhat repetitive, I have chosen to organize my rulings on them according to subject matter rather than in numerical order.
Standing
Unincorporated association (Lynn Haven's Exceptions #1-3, 13-18)
In Exceptions 1-3 and 13-15, Lynn Haven argues that Sand Hill is an unincorporated association and therefore cannot, as a matter of law, have standing in a Section 120.57 proceeding. In Exceptions 16-18, Lynn Haven further argues that there is insufficient evidence that Sand Hill or its members have a substantial interest in the outcome of this proceeding so as to confer standing on them.
At the outset, I note that the Hearing Officer's findings in Findings of Fact #2 and 3 that Sand Hill has standing to contest the issuance of the permits in this case are supported by competent substantial evidence as found in the testimony of Sand Hill's president, Phyllis Reppen. This testimony was uncontested by Lynn Haven until it raised the issue for the first time in its proposed recommended order. Additionally, in Exception #3, Lynn Haven attempts to raise a post-hearing hearsay objection to Ms. Reppen's testimony at hearing relating to the concerns of other association members about the project.
However, Lynn Haven did not raise any such hearsay objection to this testimony at hearing, and has therefore waived the objection. Fredericson v. Levinson, 495 So.2d 842 (Fla. 3d DCA 1986).
The Hearing Officer's findings regarding Sand Hill's standing are consistent with case law and with previous final orders of the Department. In its petition for administrative hearing filed September 28, 1990, Sand Hill alleged that it was a group of homeowners, landowners, and other local citizens who live in and use the Sand Hills area in Bay County, Florida, and recreationally use the waters in which the project will be located; and that the permits if issued would adversely impact these recreational interests, as well as, among other things, the quality of their groundwater and drinking water.
These allegations were generally supported by the testimony of Ms. Reppen at hearing, although not in great detail. However, nothing in the record indicates to me that standing was at issue in the hearing, and no party contested standing until Lynn Haven raised it in its proposed recommended order.
I dealt with a similar situation in Young v. Neal Colley and Department of Environmental Regulation, 13 FALR 3061 (DER July 1, 1991). In that case, nothing in the record indicated that any party raised standing as an issue to be determined at hearing. The petitioner did not put on evidence to support the allegations of her petition regarding standing, and the issue was indeed not raised until the respondent did so in his proposed recommended order. In that case, the Hearing Officer made a finding of fact and conclusion of law denying petitioner's standing, which was overturned by me in my final order, based upon the rationale of Harbor Estates v. Department of Environmental Regulation and Edmund Burke, 12 FALR 2391 (DER 1990) (where a matter goes through hearing without identification of a standing issue to be determined, a motion made at hearing's end that the petition should be dismissed for lack of standing came too late)
In the Young case, I found that the failure of any party to take appropriate action to raise standing as an issue prevented the respondent from raising it for the first time in his recommended order, when the petitioner was unable to meet the objection or rebut it. I have stated that "trial by ambush" will not be permitted in an administrative hearing that has been purposefully designed to allow for informal access to the quasi-judicial process by pro se
litigants. I find that this same rationale is equally applicable in the instant case, and accordingly Lynn Haven's exceptions are rejected.
Conclusions of law (Lynn Haven's Exception #13)
In Exception #13, Lynn Haven excepts to the Hearing Officer's omission of any conclusions of law regarding standing, and asserts that she has erred as a matter of law in concluding that Sand Hill has standing. In Findings of Fact #2 and 3, which are mixed findings of fact and conclusions of law, the Hearing Officer concluded as a matter of law that Sand Hill is an association for the purposes of Section 120.57, and has standing to challenge the Department's Intents to Issue in this case. As previously noted, the Hearing Officer found that Sand Hill is an association of members and supporters who live near the site of the proposed facility, and whose substantial interests are affected by the proposed issuance of the permits, on the basis of record evidence that was received without objection. Based on these facts, she concludes as a matter of law that Sand Hill has standing to challenge issuance of the permits.
Previous orders of the Department have held that an unincorporated association may be a party for purposes of Section 120.57, F.S. See West Volusia Conservancy and Volusia County v. Arboretum Development Group and Department of Environmental Regulation, 9 FALR 1847 (DER Order of Remand 1987) and Environmental Confederation of Southwest Florida v. Cape Cave Corp. and Department of Environmental Regulation, 6 FALR 1217(DER Order of Remand 1983).
Thus, Lynn Haven's attempt to introduce evidence subsequent to the close of the hearing regarding Sand Hill's corporate status is irrelevant.
For the above reasons, Lynn Haven's exception is accepted to the extent that the Hearing Officer's conclusions regarding Sand Hill's standing should have been denominated as conclusions of law. In all other respects, the exception is denied.
Standard of Review
Abuse of discretion (Department's Exception #18; Lynn Haven's
Exceptions #6, 7, 8, 9, 20).
As part of its Exception #18, the Department argues that
the appropriate standard of review of the Department's variance decision is whether or not, in deciding to issue the variance, the Department abused its discretion. Therefore, the Hearing Officer, while making independent factual findings on the de novo record before her for review, must consider the variance based on whether, given those findings, the Department abused its discretion in proposing to issue the variance.
Lynn Haven argues in its exceptions that the Hearing Officer improperly characterized the determination of whether a hardship exists as a finding of fact (F.O.F. #35, 37). Lynn Haven maintains that such a determination is actually a conclusion of law, and that the Department is not bound by the Hearing Officer's findings in this regard.
The proper role of the Hearing Officer is to make findings of fact based on evidence received by her in a de novo proceeding. Florida Department of Transportation v. J.W.C. Company, 396 So.2d 778 (Fla. 1st DCA 1981). Those findings, in turn, form the basis for a decision on issuance of a variance.
The ultimate determination of whether these findings constitute a hardship sufficient to meet the statutory criteria for a variance is a conclusion of law requiring the exercise of agency discretion. See 1800 Atlantic Developers v.
Department of Environmental Regulation, 552 So.2d 946 (Fla. 1st DCA 1989) (balancing of the public interest criteria for purposes of dredge and fill permits is the duty of the Department). The de novo proceeding conducted by the Hearing Officer is intended to formulate agency action, not to review action taken earlier and preliminarily. J.W.C. at 786-7.
The balancing of the factors set forth in Rule 17-103.100 which the Department must consider in exercising its discretion is also in the nature of a conclusion of law, or at least a determination involving particular policy considerations which require deference to the special expertise of the Department. See 1800 Atlantic, supra; McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977); McCormick v. City of Jacksonville and Department of Environmental Regulation, 12 FALR 960 (January 22, 1990).
To the extent they are consistent with this analysis, I accept the exceptions of Lynn Haven. I reject that portion of the Department's exception that seems to imply that the Hearing Officer's role is to review action taken previously. The remainder of the Department's Exception #18 is dealt with in my subsequent rulings.
Zoning case law (Department's Exceptions #10, 13; Lynn Haven's Exceptions #19, 22, 23)
The Department and Lynn Haven take exception to Conclusions of Law #13 and 15, which attempt to apply case law relating to variances from zoning ordinances to the present case. The Hearing Officer sets forth several standards established in zoning cases, and concludes that they are applicable to variances granted pursuant to Section 403.201, F.S. These standards are: the applicant must demonstrate a "unique hardship" in order to qualify for a variance, the hardship must be exceptional and unique to the individual landowner or parcel of property, and a party seeking a variance cannot assert the benefit of a
self-created hardship. Each of these standards are supported by cites to zoning cases or inverse condemnation cases.
The body of case law relating to zoning is derived from local zoning ordinances or special acts. In all of the cited cases the standard in the ordinance from which a variance was sought was either "unnecessary hardship" or "unique and unnecessary hardship." On the other hand, the Department's authority to issue variances is statutory. This statutory authority is implemented by Rule 17-103.100, which sets out specific factors the Department must consider. Neither the statute nor the rule include the terms "unnecessary" or "unique." It is improper to import zoning case law into other statutorily derived variances simply because one of the same words in a phrase is used.
Application of the standards referrenced by the Hearing Officer is not supported by relevant case law in the context of the instant case, nor is there any record basis for applying them.
For these reasons, I accept these exceptions, and rule that the case law cited by the Hearing Officer is not dispositive of the issues before me.
Factors to consider when reviewing variances
Generally (Department's Exception #18; Lynn Haven's Exceptions #26, 27)
The Department and Lynn Haven argue that the Hearing Officer failed to properly assess the factors considered by the Department when reviewing a variance. Indeed, while the Hearing Officer mentions Rule 17-103.100 in F.O.F. #36 and C.O.L. #12, there is little or no discussion of how this rule was applied.
Rule 17-103.100(1) sets forth the following factors which the Department must consider when deciding whether or not to issue a variance:
The statute or rule from which a variance is sought.
The facts which show that a variance should be granted because of one of the reasons set forth in Section 403.201, Florida Statutes.
The period of time for which the variance is sought, including the reasons and facts in support of the time period.
The requirements which the petitioner can meet, including the date or time when the requirements will be met.
The steps or measures the petitioner is taking to meet the requirement from which the variance is sought. .
The social, economic and environmental impacts on the applicant, residents of the area and of the state if the variance is granted.
The social, economic and environmental impacts on the applicant, residents of the area and of the state if the variance is denied.
This rule has been adopted by the Department to implement Section 403.201, F.S., and should have been applied to the Hearing Officer's analysis of the variance. As noted above, it is my responsibility to balance these factors in determining whether or not a variance should be issued, based upon the factual findings of the Hearing Officer.
As to factor (a), the rule from which a variance is sought is Rule 17- 312.080(7), F.A.C., which states that "Permits for dredging or filling directly in Class II . . . waters . . . shall not be issued."
As to factor (b) , Lynn Haven has requested a variance pursuant to Section 403.201(1)(c), which authorizes the Department to grant a variance "to relieve or prevent hardship." The Hearing Officer found that, if the proposed facility were constructed, there would be no realistic way to run a pipeline to it so as to avoid Class II waters. (F.O.F. #40) The Hearing Officer also found that it was not realistic to upgrade Lynn Haven's existing facility. (F.O.F. #41) Such
a situation would indeed constitute a hardship. However, as is discussed below, the existence of a viable alternative to construction of the facility and the consequent dredging and filling in Class II waters may preclude the finding of a hardship.
As to factor (c), Section 403.20l(l)(c) limits a variance for hardship to two years. The construction of the pipeline for which a dredge and fill permit is sought would have to be completed within this two-year period.
As to factor (d), the Hearing Officer found that Lynn Haven met the necessary requirements for all the permits it sought, but not for the variance. (F.O.F. #22, 29, 32, 39)
As to factor (e), it is not possible for Lynn Haven to take steps to meet a prohibition on issuance of a permit.
As to factor (f), the Hearing Officer found that Lynn Haven's existing facility was a source of pollution, and that Lynn Haven is in serious need of a facility which works and does not cause pollution. (F.O.F. #6, 7, 41) The Hearing Officer concluded that Lynn Haven had provided reasonable assurance that the proposed facility and pipelines would meet all permit conditions and not cause pollution. The Hearing Officer also found that construction of the new facility would probably be cheaper for residents of Lynn Haven than connecting to the Bay County system. (F.O.F. #43)
As to factor (g), the Hearing Officer found that if Lynn Haven were to connect to the Bay County system, the environmental problems associated with the existing facility would be alleviated, and that whatever risks are associated with a pipeline crossing Class II waters would be eliminated. The Hearing Officer also found that any additional costs associated with this option would not be excessive.
In sum, if Lynn Haven had demonstrated that no viable alternatives existed to laying a pipeline through Class II waters, it probably would have met its burden of showing both that it would suffer a hardship if the variance were denied, and that a balancing of the factors listed in the rule would justify the granting of a variance. The Department and Lynn Haven are correct that the Hearing Officer failed to specifically address the factors listed in Rule 17-
103.100. However, she did make sufficient findings to enable me to evaluate and balance these factors in determining whether a variance should be issued. For this reason, these exceptions are accepted, although such acceptance does not necessitate a different outcome.
Self-created hardship (Department's Exceptions #5, 10 13; Lynn Haven's Exceptions #11, 22).
The Department and Lynn Haven take exception to Finding of Fact #40 which states that any hardship which exists was one which "the City created by site selection." They also take exception to Conclusion of Law #15, which states that "a self- created hardship is present since the City created the alleged hardship when it selected the site for its proposed AWT plant." The Department and Lynn Haven argue that it is the City's location on a peninsula and the nature of its own geology which has created the need to cross Class II waters.
I would note first that the disputed statements cannot be considered findings of fact which I am constrained to accept. Rather, they constitute a conclusion drawn from other facts in the record, and as such I may reject them
if they are not consistent with the facts. In addition, as I have noted above, zoning case law which precludes variances in cases of self-created hardship does not apply here. In a zoning case, simply purchasing property with knowledge of applicable limitations on development may be sufficient to establish a self- created hardship. In the case of variances under Section 403.201, however, environmental and social impacts also enter into the equation.
The Hearing Officer found, and the evidence shows, that "there was no realistic way to avoid Class II waters in North Bay given the location of the proposed wastewater treatment facility." (F.O.F. #40) The Hearing Officer found that the current sprayfield site is geologically unsuited to accept effluent (F.O.F. #6); that Lynn Haven, with the Department's aid, reviewed approximately
40 alternatives for wastewater disposal (F.O.F. #8); that the existing wastewater treatment facility is in violation of both Department and United States Environmental Protection Agency standards, is operating without a permit, and cannot be permitted (F.O.F. #7); and that Lynn Haven is "in serious need of a wastewater treatment facility which works and does not pollute the environment" (F.O.F. #7). The Hearing Officer concluded that the proposed new facility would work and would not pollute the environment (C.O.L. #6-8).
The issue is not solely whether a hardship was created? by Lynn Haven's site selection. Rather, this is a factor to be considered in the context of the rule. In this case, the choice of site location was Lynn Haven's, but the claim of hardship is based upon locational constraints and environmental concerns, as well as economics. I cannot conclude that Lynn Haven created the hardship by attempting to comply with environmental standards by constructing a new facility in an otherwise suitable location.
For these reasons, these exceptions are accepted.
No choice but to violate the law (Department's Exceptions #11, 17; Lynn Haven's Exception #21).
The Department and Lynn Haven take exception to Conclusions of Law #14 and
18 that to qualify for a variance the "applicant must prove that he has no choice but to violate the law." They argue that this standard created by the Hearing Officer has no basis in the record or in case law.
Again, Section 403.201 and Rule 17-103.100 set forth the standards which an applicant must meet and the factors the Department must consider when exercising its discretion to grant or deny a variance. Nowhere does the Hearing Officer's proposed standard appear, nor is there any indication in the Recommended Order where this standard came from. While I agree that the presence of a viable alternative is a factor the Department must consider when determining hardship, I cannot stretch this to mean that an applicant must prove that he has no choice but to violate the law. This would mean that the presence of any alternative, no matter how unreasonable, or even the possibility of inaction, no matter how environmentally harmful, would preclude issuance of a variance. It would also mean that the evaluation of the factors set forth in Rule 17-103.100 would be meaningless.
For this reason, these exceptions are accepted.
Non-rule policy (Department's Exceptions #2-4).
The Department takes exception to Findings of Fact #35 and 36 in which the Hearing Officer discusses the Department's procedure for analyzing variance
requests. The Hearing Officer found that in reviewing variances, "the Department employs a two step analysis. The first part of the analysis is whether a hardship is present and the second is whether, if the variance were granted, would it result in permanent closure of Class II shellfish waters." This finding is based upon competent substantial evidence in the form of testimony of Department witnesses.
However, the Hearing Officer then goes on to discuss "the second part of the Department's hardship analysis relating to the permanent closure of shellfishing waters." The Department takes exception to the suggestion that the issue of whether the granting of a variance would result in permanent closure of Class II waters is part of the Department's determination of whether a hardship exists.
The only evidence in the record shows that this second step does not relate to the determination of the existence of a hardship. Rather, if a hardship is found to exist, the second requires a consideration of the impacts that issuance of the variance would have on the shellfish resources. Randall Armstrong, the only witness to describe this two-step process, testified as follows:
Well, the Department's approach is on a case by case basis, with a review of each particular situation. If it is determined or if it was determined that a particular hardship existed in a situation, then the Department would look to see whether or not allowing that variance and therefore allowing that activity, assuming a permit was also issued, whether or not that activity would result in a permanent closure of those shellfish waters to harvesting. If the classification of those waters, the Class II classification for shellfish harvesting, could be protected in the long term and the other factors, the fact that there was a hardship existed, it might be appropriate to issue a variance in that case.
(T. 292-3)
The Department also takes exception to the finding that the two-step analysis described above is a non-rule policy which was not proved up at hearing and which violates Department rules and statutes.
The first part of the two-step analysis is whether or not a hardship exists. Section 403.201(1)(c), F.S., authorizes the Department to grant a variance "to relieve or prevent a hardship." Additionally, Rule 17-103.100(1)
(b) requires the Department to consider "the facts which show that a variance should be granted because of one of the reasons set forth in Section 403.201, Florida Statutes." For the Department to obey the statute and rule and determine whether or not a hardship exists is not a non-rule policy. An agency's interpretation of its rules and statutes is accorded great deference. Department of Environmental Regulation v. Goldring, 477 So.2d 532 (Fla. 1985); Reedy Creek Improvement District v. State Department of Environmental Recu1ation, 486 So.2d 642 (Fla. 1st DCA 1986).
The second part of the two-step analysis is whether or not the variance would result in permanent closure of Class II waters. As noted above, this step
is not part of the hardship analysis, but is part of the review of the impacts of the variance. Rules 17-103.100(1) (f) and (g) require the Department to consider "the social, economic and environmental impacts on the applicant, residents of the area and of the state" if the variance is granted or denied. Whether any potential closure of Class II waters is permanent or temporary, while certainly not determinative, is relevant to the Department's analysis. To the extent that the Hearing Officer may have concluded that a variance would be denied only where permanent closure occurred, this interpretation is contrary to the evidence. Randall Armstrong testified that variances are analyzed on a case-by-case basis, and if permanent closure did not occur, and if other factors were met, then it "might be appropriate to issue a variance in that case." (T. 292-3) Consideration of the impacts resulting from the variance, analyzed on a case-by-case basis based upon the factors found in the rule, is not non-rule policy. Nor does it contradict any part of the Department's rules or statutes.
For these reasons, these exceptions are accepted.
Viable alternatives (Department's Exceptions #1, 6, 7, 8, 14, 16; Lynn Haven's Exceptions #12, 24, 25).
Department's Exception #1
The Department takes exception to Finding of Fact #35, which states that "the Department reviews a request for a variance standing alone based on the application as it is presented and does not require analyses of other possible alternatives to the granting of a variance." The Department cites to record evidence that Department witnesses testified that the availability of alternatives would bear on whether a hardship exists. Additionally, the Hearing Officer found in this same Finding of Fact that the existence, costs, timeliness, problems with, solutions presented by, and implementability of alternatives "are all factors utilized by the Department in determining whether or not to grant a variance."
Apparently the Hearing Officer's disputed statement was a critique of both Section 403.201, F.S., which authorizes the Department to grant variances, and of Rule 17-103.100, F.A.C., which implements this statute. Neither specifically requires an analysis of alternatives to the granting of a variance. Randall Armstrong, a Department witness, testified that "we did not require alternatives analysis of all the other possible alternatives. The question is whether they meet the requirements for that variance." (T. 307)
Nonetheless, it is abundantly clear that, whether specifically required by rule or not, a review of alternatives to the variance is an important part of determining whether a hardship exists. Both the record and the Recommended Order are replete with references- to alternatives which were considered by the Department and by the Hearing Officer. Randall Armstrong and Robert Kriegel, the Department witnesses qualified to testify as to Department policy, both stated that alternatives to the granting of the variance were considered by the Department. (T. 305-6; 323)
Rule 17-103.100(1) (g) requires the Department to consider the social, economic and environmental impacts if a variance is denied. In appropriate cases, this may well involve consideration of alternatives to the granting of a variance. It does not require the Department to deny a variance if an alternative, no matter how speculative or unreasonable, is shown to exist.
However, the evidence shows that if a viable, reasonable alternative is shown to exist, this would weigh against the issuance of a variance.
Randall Armstrong testified that he would have preferred not to grant a variance if "viable, reasonable, economically and environmentally sound alternatives" were available. (T. 304-5) He stated that if superior alternatives were shown to exist, he might have concluded that there was no hardship. (T.
307-8) He also pointed out that a viable alternative is not necessarily an implementable one; that economic or political considerations were factors; and that even if an alternative made sense, if it is not implementable it would not eliminate the hardship. (T. 314)
Robert Kriegel testified that he was not aware of any "realistically available alternatives." (T. 325) He stated that the cost of alternatives, whether they were interim in nature, and the speculative nature of future improvements of other projects, are all factors to consider. (T. 334-5) "I think we can always postulate some other solution. In this particular situation we looked at a solution that was well designed and presented at hand." (Id.)
The Hearing Officer's statement that the Department does not require an analysis of alternatives, if taken to mean only that the Department does not by rule require an applicant to submit possible alternatives in a variance application, is supported by competent substantial evidence, and as such I am not at liberty to reject it. For this reason, this exception is rejected as interpretted. Even so, the evidence showed, as the Hearing Officer found, that the Department did properly consider the feasibility of alternatives that were brought before it.
Department's Exceptions #6, 7, 8, 14, 16; Lvnn Haven's Exceptions #12, 24, 25
The Department and Lynn Haven take exception to Findings of Fact #42, 43, and 44, and Conclusions of Law #16 and 17, all of which suggest that, as a viable alternative to building its own facility, Lynn Haven could connect with the Bay County wastewater treatment system. They argue that the Bay County system is not currently meeting Department standards, that Bay County's plans to upgrade its system are not imminent, that Bay County has not agreed to accept Lynn Haven's sewage, and that it was not shown that it was feasible to run a pipeline through neighboring municipalities to hook into Bay County's system.
Therefore, they - argue, this is not a currently viable option.
The evidence shows, and the Hearing Officer found, that Bay County's wastewater system consists of the Cherry Street facility, which functions essentially as a lift station, and Military Point Lagoon, which provides secondary treatment. This system is not permitted by the Department, but is operating under a Consent Order. The county is in the middle of a water quality study which, when completed, could affect the future limitations imposed on loading into Military Point Lagoon. The county's system has a problem with excessive phenols in its discharge, which are probably due to industrial discharges, but is in compliance with the terms of the Consent Order. The system currently has excess permitted capacity of more than of two million gallons per day.
The county also is currently in the planning phases of constructing an advanced wastewater treatment plant. The Hearing Officer found, however, that this plan is "just a twinkle in the County's eye," and has not yet progressed.to the design stage.
These facts are essentially undisputed. However, the Hearing Officer also found that "all of Bay County's wastewater system problems are reasonably solvable and will be corrected in the near future, if they have not been corrected already." The Department and Lynn Haven argue that there is no basis for this statement.
It is clear that the County's system is operating under a Consent Order and cannot currently meet the Department's standards for getting a permit. Robert Reining and Robert Kriegel, both Department witnesses, expressed concerns about the current status of the system, and some doubts about the County's ability to correct the problems. (T.191; 324-5; 888-9) However, James Slonina, Bay County's engineering consultant, testified that recent improvements to Military Point Lagoon had resulted in it running well below its discharge limits. (T.
769) He also testified that the ongoing water quality study could result in future discharge limitations and additional levels of treatment being imposed on the facility, but that no conclusions had yet been reached. (T.782) Edward Collerain, director of utilities for Bay County, testified that the County is currently meeting the terms of the Consent Order (T. 742), and is in the planning phases of designing a new countywide sewage treatment system (T. 736)
Whether or not this evidence amounts to a logical basis for the Hearing Officer's statement that all of the County's problems are reasonably solvable and will be corrected in the near future is arguable. Nonetheless, I cannot say that there is no competent substantial evidence in the record to support this finding.
The Hearing Officer found that, as an alternative to building its own treatment facility, Lynn Haven could instead tie into Bay County's existing system, and hopefully into the County's planned new system. There was evidence that Bay County's Military Point Lagoon had sufficient capacity to accept Lynn Haven's sewage, and that it was technically possible for Lynn Haven to connect to the County's system. (T. 180-2; 738; 770-1; 814) There was also evidence that, due to past-and current problems with the Bay County system, Department personnel were 1,hesitant" to recommend this course of action. (T. 329-30; 888- 9)
Whether this technical possibility amounts to a viable alternative is not fully resolved. The Hearing Officer found that "the County is willing to accept Lynn Haven's sewage into its system and future AWT system." (F.O.F. #42) The Department argues, and I agree, that this statement is not based on competent substantial evidence. Edward Collerain testified that On April 2, Bay County authorized its staff to negotiate with Lynn Haven to tie into Military Point Lagoon on an interim basis. (T. 738) James Slonina testified that pn April 9, a draft interlocal agreement was brought before the Lynn Haven Commission which would, if signed by both parties, allow the city to hook into Bay County's system. (T. 774) There is no evidence in the record that this interlocal agreement was ever signed by either party, or that Bay County ever officially agreed to accept Lynn Haven's sewage.
There is also the question of whether the pipeline from Lynn Haven's current facility to the Military Point Lagoon could easily be built. The evidence shows that this line would have to pass through at least three separate municipalities, and that these communities have not given approval for this. (T. 787-8; 883-4) Witnesses disagreed about the likelihood that these communities would object to the pipeline. (Id.) There is also the question of the cost of hooking up with Bay County. The Hearing Officer, while noting its speculative nature, credited evidence which showed that the cost to Lynn Haven
residents would be approximately $25 per month, while the cost for the proposed Lynn Haven facility would be approximately $15 per month. The Hearing Officer also found that this cost differential was not excessive, and is the price of living in an environmentally sensitive area. (F.O.F. #43) This latter "finding" is a matter of opinion, and has no record basis. Rule 17-103.100 requires the Department to consider the economic impacts on residents of the area if the variance is granted or denied, and this cost differential is a factor that would be relevant to such consideration. On the other hand, Lynn Haven offered no evidence that would support a conclusion that these additional costs were sufficiently excessive to make connecting to Bay County an unreasonable or nonviable alternative.
In sum, I find that the question of whether or not viable alternatives exist that would make the granting of a variance unnecessary is relevant to a determination of whether a hardship exists. In this case, it does not appear that a viable alternative of connecting with the Bay County system was presented to the Department at the time of the variance request, or even that such an alternative realistically existed. Nonetheless, in the context of this de novo proceeding, it was proper for the Hearing Officer to consider evidence relating to this alternative, and to make a finding of fact that this alternative was indeed viable. This is not to say that the alternative is unquestionably implementable, or that Lynn Haven must actually connect with the Bay County system. There clearly are still possible obstacles which stand in the way of such a connection, but the Hearing Officer found or implied, and I agree, that the evidence did not show that these obstacles are insurmountable. Once Petitioners presented evidence that connecting to the Bay County system was, on its face, a reasonable alternative to laying a pipeline through Class II waters, the burden shifted to Lynn Haven to demonstrate that this alternative either did not exist, or was sufficiently onerous to justify a finding of hardship. J.W.C. Company, supra.
The determination of hardship must be made on a case-by-case basis, and I do not conclude that the existence of any alternative, no matter how unreasonable, precludes a finding of hardship. Nor do I conclude that an applicant for a variance must prove that no possible alternative exists. In this case, however, evidence was presented which showed that a viable alternative does exist, and Lynn Haven did not rebut that evidence. No representative of the Lynn Haven Commission testified as to their reasoning for declining to pursue a connection with the Bay County system (although there was hearsay testimony from Robert Reining that, according to information in his files, Lynn Haven considered and rejected the possibility because they didn't want to "mortgage their growth potential to another government entity." (T. 153- 4)) While Military Point Lagoon is operating under a Consent Order, the evidence showed that it was in substantial compliance with that Consent Order, and there was no evidence to indicate that the addition of Lynn Haven's sewage would result in noncompliance. In addition, there is no evidence to suggest, and it is not evident from the Consent Order itself, that accepting Lynn Haven's sewage would violate any conditions of the Consent Order. (Department Exhibit #7) The evidence showed that the pipeline would have to cross several municipalities to get to Military Point Lagoon, but there was no clear evidence, and no finding by the Hearing Officer, that Lynn Haven could not seek and receive permission from these municipalities for the crossing, or that Lynn Haven had even tried. The evidence showed that it would cost more for the residents of Lynn Haven to connect to the Bay County system than to construct their own facility. As the Hearing Officer found, however, the cost estimates were speculative, and there was no evidence presented that the additional costs
were sufficiently excessive to make connecting to Bay County an unreasonable alternative.
Ultimately, the determination of whether a hardship exists within the meaning of the statute is a policy decision for the Department to make. This determination, however, must be based on factual findings made by the Hearing Officer. In this case, the Hearing Officer found that a-viable alternative exists to the granting of a variance, and this finding was based on competent substantial evidence. While I have some reservations about appearing to encourage a facility which is operating under a Consent Order to accept more inf luent, I cannot say as a matter of law that such an alternative can never be reasonable or viable. Given this finding, I conclude that Bay County has not demonstrated that it will suffer a hardship sufficient to justify
the granting of a variance.
Since the statement in Finding of Fact #42 that "the County is willing to accept Lynn Haven's sewage into its system and future AWT system," is not based on competent substantial evidence, the Department's Exception #6 is accepted as regards this statement, although it is not determinative of the final outcome. For the reasons set forth above, the other exceptions relating to the finding that connection to the Bay County system is a viable alternative are rejected.
I have not concluded that Lynn Haven must connect with the Bay County system, nor have I concluded that such a connection is the only possible solution to Lynn Haven's sewage problems. Upon a showing of new or changed circumstances, or upon a demonstration of hardship, Lynn Haven's application will not be barred by the doctrine of administrative res judicata. Thomson v. Department of Environmental Regulation, 511 So.2d 989 (Fla. 1987); Westerman v. Escambia County Utilities Authority and Department of Environmental Regulation,
12 FALR 1396 (Final Order March 19, 1990). If, for example, Lynn Haven can demonstrate that it has tried and failed to reach agreement with Bay County concerning a sewage connection, or if problems with the Bay County system render it incapable of accepting Lynn Haven's sewage, Lynn Haven will not be precluded from reapplying for a permit and variance to lay a pipeline across North Bay.
Miscellaneous Exceptions
Department's Exception #9
The Department excepts to Conclusion of Law #12, footnote 11, which suggests that Section 403.201, F.S., authorizing the Department to grant variances, might not apply to dredge and fill cases. However, the Hearing Officer concludes that "the issue of the statute's applicability need not be reached in this case since the City has failed to establish the existence of a hardship." The Hearing officer did not conclude that the statute does not apply and neither do I. While in no way adopting the suggestions of the Hearing Officer in the cited footnote, I reject the exception as immaterial.
Department's Exception #12
The Department takes exception to the Hearing Officer's Conclusion of Law #14, footnote 12, which states that no variances have ever been granted under Rule 17-312.080(7), F.A.C., since it was passed in 1989. The Department argues that this finding is not supported by the evidence.
The only evidence in the record was offered by Randall Armstrong, who testified that the Department has granted variances for dredging and filling in
Class II waters. (T. 292) It was not clear whether or not such variances were granted before or after 1989. However, there is no indication that the Hearing Officer's finding in this footnote was at all relevant to any issue in this case. No evidence was presented or any argument made that any previous variance case had precedential or other value here. Since the Hearing Officer's finding was not supported by competent substantial evidence, the exception is accepted, although it does not alter the outcome of this case.
Department's Exception #15 The Department takes exception to Conclusion of Law #17, which states that "any accident or leak which may occur has the potential for serious consequences to not only the environment, but to employment in the local shellfishing industry as well as the food supply taken from the Bay." The Department argues that this is a finding of fact which has no support in the record. The Hearing Officer made numerous findings concerning the likelihood and consequences of any deak in the pipeline should it be installed under the North Bay. It was found that "the probability of the proposed HDPE pipe leaking or breaking is extremely low, albeit not impossible" (F.O.F. #26); "the probability of any leak occurring in the portion of the transmission line crossing North Bay is extremely low and . if such a leak does occur any potential harm to the environment will likely be limited and quickly eliminated" (F.O.F. #29); "the applicant has provided reasonable assurances that the transmission line/collection system will not violate Department standards or rules and the applicant is entitled to a permit . for the proposed collection system" (F.O.F. #29); "any short term impacts on aquatic resources [during construction] are likely to be insignificant. Concerns about long term adverse impacts to Class II waters are greatly reduced by the type of pipe and conditions in the permit" (F.O.F. #39); "Any long term impacts to water quality or marine resources are expected to be minimal due to the nature of the conditions imposed" (C.O.L. #16); "This project more than likely will have minimal impacts" (C.O.L. #17). The evidence shows, and the Hearing Officer found repeatedly, that the chances of a leak are minimal, and that the consequences of a leak are also expected to be minimal. There is no competent substantial record evidence that a leak has the potential for serious consequences to the environment, local industry, or food supplies. While the Hearing Officer's finding is phrased only as a potential consequence, even such speculation must have an evidentiary basis. For this reason, this exception is accepted.
Lynn Haven's Exception #4
Lynn Haven takes exception to Finding of Fact #21, which states that "the Legislature had determined that such experimentation with wetland areas is appropriate, albeit, even with the conservative limits of DER's rule, may prove to be a mistake." Lynn Haven argues that this finding has no basis in the record, and is in fact a conclusion of law.
The Hearing Officer's statement refers to Rule 17-611, F.A.C. It is true that there is no record evidence that the Legislature made any determination with regard to this Department rule. Nonetheless, it does not appear that this statement, or the Hearing Officer's concern that the rule may be a mistake, had any bearing on her ultimate determination that a construction permit for the facility should be issued. Because this statement is not supported by competent substantial evidence, the exception is accepted, although it is irrelevant to the outcome of this case.
Lynn Haven's Exception #5
Lynn Haven takes exception to Finding of Fact #33, in which the Hearing Officer describes the purpose of Rule 17-312.080(7), - F.A.C. Lynn Haven argues that there is no record basis for this finding, and that it is in fact a conclusion of law.
Rule 17-312.080(7) provides that the Department shall not issue permits for dredging and filling in Class II waters. It is because of this rule that a variance was needed before Lynn Haven would be allowed to receive a permit for laying a pipeline across the North Bay. The Hearing Officer found that the purpose of the rule is as follows:
The reason for the rule is that any pollution caused by dredging and filling and, as in this case, the permanent placement of a sewage pipe in food producing waters could potentially have catastrophic effects on more than just the environment but on local employment in the shellfish industry and the quality of food available to the State. Put simply, the Department has determined by enacting its Rule that the public interest in food producing waters far outweighs any other consideration or criteria under Sections 403.918 and 403.919, Florida Statutes, in determining whether dredging and filling should take place in Class II shellfish waters. In other words, it is not in the best interest of the public to allow dredging and filling so that a pipe carrying raw sewage can be placed in shellfishing waters.
The only witnesses at the hearing who were competent to testify as to the Department's reason for enacting the rule were Randall Armstrong, Robert Kriegel, and perhaps Robert ReiningNone of them offered any testimony that could be construed to support the Hearing Officer's finding. Nor is this finding supported by any descriptive language in the rule. While not necessarily disagreeing with the Hearing Officer's analysis in the context of the record in this case, I do agree that it is nothing more than speculation.
Even given this, I find that the Hearing Officer's finding is irrelevant to the ultimate outcome of this case. Whatever the purpose of the rule, it clearly prohibits issuance of dredge and fill permits in Class II waters. An investigation into the intent of a rule or statute is not needed when its meaning is clear on its face. Streeter v. Sullivan, 509 So.2d 268 (Fla. 1987).
The Hearing Officer's finding is not supported by competent substantial evidence, and this exceptioA is therefore accepted, although it has no bearing on the ultimate outcome of this case.
Lynn Haven's Exception #26
Lynn Haven takes exception to Conclusion of Law #17, in which the Hearing Officer concludes that the Department "has already decided that the public's interest in protecting food producing waters is paramount to permitting dredge and fill activities in Class II, shellfishing waters." This exception is accepted for the same reason as was its Exception #5.
Lynn Haven's Exception #10
Lynn Haven takes exception to Finding of Fact #37, footnote 6, which states that the County has "hopes and plans" to someday provide sewage service to the Southport-Sand Hills1 area of Bay County. Lynn Haven argues that this finding has no record support.
It is true that witnesses for the County offered no testimony that the Southport-Sand Hills area would be serviced by the County. Nor does any other competent evidence support this finding. The context of this finding, however, was that Lynn Haven's plans for providing service to this area someday were too speculative to be the basis for a factual finding. Presumably, even if the County had similar future plans, they too would be speculative. There is no indication that the disputed finding had any bearing on the ultimate outcome of this case. I find that Lynn Haven's exception is irrelevant, and it is therefore rejected.
Ruling on Reguest for Oral Argument
Lynn Haven has requested oral argument before the Secretary of the Department. Rule 17-103.200(3), F.A.C., provides that the Secretary in her discretion, may grant oral argument. I decline to do so in this case. All parties have had an opportunity to file written pleadings in this matter, including the filing of exceptions to the Recommended Order, and responses thereto. It does not appear that oral argument is necessary to clarify any issue in this case. Accordingly, the request for oral argument is denied.
Ruling on Sand Hill's Motion to Supplement the Record and Motion to Dismiss
Both of Sand Hill's motions are based upon two matters which assertedly occurred after the conclusion of the administrative hearing. Sand Hill has asked me to take notice of these matters and to either remand this case back to the Hearing' Officer for the taking of additional evidence, or to dismiss this case as moot.
I am not at liberty to dismiss this case based upon these submittals, since that would require that I make findings of fact which have no basis in the record. If I determine that Sand Hill has presented legitimate post-hearing matters whicih are relevant to the outcome of this case, my only option. is to remand the matter to the Hearing Officer for additional findi1ngs. J.W.C. Company, supra
Sand Hill has attached to its motions an uncertified copy of what appears to be an agreement between the City of Panama City and the City of Lynn Haven, dated April 9, 1991, in which the City of Panama City agrees to accept up to 200,000 gallons per day of wastewater effluent from the city of Lynn Haven.
This agreement is good for up to three years.
Sand Hill has also attached a copy of an affidavit from Louie W. Deal, apparently a Commissioner of the City of `Lynn Haven. In his affidavit, Mr. Deal states that the City of Lynn Haven hasentered into the agreement mentioned above, and also makes thefollowing statement:
On December 17, 1991, the Lynn Haven City Commission voted to file for their Temporary Operating Permit and a permanent sewage solution to tie in with the New Bay County AWT.
In summary, Lynn Haven has now found and implemented a sewage treatment methodology which makes the proposed Sand Hills plant unnecessary.
Sand Hill argues that these statements indicate that the City of Lynn Haven has voted to enter into a long-term agreement with Bay County for the treatment and disposal of all of Lynn Haven's sewage. While it is not clear to me that this is reflected in Mr. Deal's affidavit, it is ultimately not relevant to my decision. The City of Lynn Haven is a party to this proceeding, and if it wishes to withdraw its applications because of its recent actions it may do so. Until such tiime, however, I assume that Lynn Haven wishes to continue to prosecute its case, and the statement of one of the City's commissioners is not a sufficient basis for dismissal or remand.
As to the agreement between Lynn Haven and Panama City, the Hearing Officer found in Finding of Fact #42, footnote 8, that "No competent substantial evidence was adduced that the City of Panama City was committed to provide sewer service to Lynn Haven." Sand Hill characterizes this agreement as a "post- hearing matter." However, the agreement was signed on April 9, while the last day of hearing was on April 16. Petitioner presented evidence of other matters considered by the Lynn Haven Commission at its April 9 meeting (T. 774), but did not then seek to introduce this agreement. It is not a post-hearing matter, and I cannot consider it as such. If the result ot this agreement is to make the facility Lynn Haven seeks to construct unnecessary, then Lynn Haven may withdraw its applications. Furthermore, even if I were to consider this matter, it is not apparent that an interim solution to one of Lynn Haven's sewage treatment problems is relevant to the ultimate determination of the permitability of the proposed new facility and pipeline. Its only possible relevance might be to the issue of Lynn Haven's request for a variance, and since the effect of my previous rulings is to deny the variance, that issue is moot.
For these reasons, Sand Hill's motion to supplement the record and motion to dismiss are denied.
Accordingly, based upon the foregoing analysis and conclusions, it is ORDERED:
Except as modified herein, the Hearing Officer's Recommended Order is adopted and incorporated herein by reference.
The Department shall forthwith issue Permits No. CS03- 178910, DC03- 178814, and 031785181.
Permit No. 031716641, and the variance included within, is DENIED, without prejudice to reapply upon new 0- changed circumstances as noted herein.
The request for oral argument filed by Petitioners is DENIED.
Petitioner's Motions to Supplement Record and to Dismiss are DENIED. Notice of Rights
Any party to this Final Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the clerk of the Department.
DONE AND ORDERED this 9th day of January, 1992, in Tallahassee, Florida.
State of Florida Department of Environmental Regulation
CAROL BROWNER
Secretary
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 323299-2400
CERTIFICATE OF SERVICE
I DO HEREBY CERTIFY that a true and correct copy of this
FINAL ORDER has been sent to the following listed persons: by hand delivery to:
Diane Cleavinger Ann Cole, Clerk
Hearing Officer Division of Administrative Division of Administrative Hearings
Hearings The DeSoto Building The DeSoto Building 1230 Apalachee P'kwy.
1230 Apalachee Pkwy. Tallahassee, FL 32399-1550
Tallahassee, FL 32399-1550
Carol Forthman, Esq. 2600 Blair Stone Road
Tallahassee, FL 322399-2400 and by U.S. Mail to:
Steve Lewis, Esq. Erik P. Reppen
P.O. Box 1876 P.O. Box 1364
Tallahassee, FL 32302 Panama City, FL 32402 this 9 day of January, 1992
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
Daniel H. Thompson General Counsel
Twin Towers Office Building 2600 Blair Stone Road Tallahasee, FL 32399-2400
| Issue Date | Proceedings |
|---|---|
| Jan. 10, 1992 | Final Order filed. |
| Jan. 10, 1992 | Final Order filed. |
| Dec. 26, 1991 | CC Sand Hill Community Improvement Association`s Motion to Dismiss for Mootness filed. |
| Dec. 26, 1991 | (Sand Hill Community Improvement Association) CC Motion to Extend Time for Filing Exceptions; Request for Oral Argument; Response to Lynn Haven`s Exceptions; Motion to Supplement Record With Post-Hearing Matters; or, In the Alternative, to Re-Open the H |
| Dec. 13, 1991 | State of Florida Department of Environmental Regulation Exceptions to Recommended Order filed. |
| Nov. 27, 1991 | Recommended Order sent out. CASE CLOSED. Hearing held 04/01-05/91. |
| Jul. 05, 1991 | Proposed Findings of Fact, Conclusions of Law and Recommended Order filed. (From Michael P. Donaldson) |
| Jul. 05, 1991 | (Lynn Haven) Proposed Recommended Order filed. |
| Jun. 27, 1991 | Order sent out. (Re: Respondent`s request for Extension is granted and extended to July 5, 1991). |
| Jun. 21, 1991 | (Respondent) Motion for Extension of Time to File Proposed Recommended Order filed. (From Michael Donaldson) |
| May 28, 1991 | Transcript (Volumes 1-6) filed. |
| Mar. 22, 1991 | Letter to R. Denker from S. Lewis (Re: Amendment of Witness Lists) filed. |
| Mar. 18, 1991 | Motion in Limine filed. |
| Feb. 13, 1991 | Order Extending Subpoenas (until April 1-5, 1991) sent out. |
| Jan. 31, 1991 | Order of Continuance and Rescheduling Hearing sent out. (hearing rescheduled for April 1-5, 1991; 9:30am; Tallahassee) |
| Jan. 30, 1991 | Stipulated Motion for Continuance filed. (From Anne Longman) |
| Jan. 22, 1991 | CC Letter to Randall E. Denker from Steve Lewis (re: Interrogatories)filed. |
| Jan. 18, 1991 | Respondent City of Lynn Haven`s Supplemental Response to Petitioner`s Motion to Produce; Notice of Service of Answers to Interrogatories Served by Sand Hill Community Improvement Association filed. (From Steve Lewis) |
| Jan. 17, 1991 | Notice of Service of Answers to Interrogatories Served by Sand Hill Community Improvement Association filed. (From Steve Lewis) |
| Jan. 17, 1991 | Respondent City of LynnHaven`s Response to Petitioner`s Request for Admissions filed. (from Steve Lewis) |
| Jan. 17, 1991 | Respondent City of Lynn Haven`s Response to Petitioner`s Motion to Produce & attachments filed. (From Steve Lewis) |
| Jan. 17, 1991 | Department`s Response to Petitioner`s Second Set of Interrogatories; Department`s Response to Petitioner`s Motion to Produce; Department`s Response to Petitioner`s First Set of Admissions filed. (From Michael Donaldson) |
| Jan. 15, 1991 | CC Letter to Steve Lewis from Randall Denker (re: Motion to Produce) filed. |
| Jan. 10, 1991 | Subpoena Duces Tecum filed. (from Randall Denker) |
| Dec. 27, 1990 | Notice of Service of Second Set of Interrogatories to Petitioner SandHill Community Improvement Association; Respondent City of Lynn Haven`s Second Set of Interrogatories to Petitioner Sand Hill Community Improvement Association filed. |
| Dec. 27, 1990 | Respondent City of Lynn Haven`s Motion to Produce filed. |
| Dec. 19, 1990 | Order (Motion to Quash filed by Northern District of Florida GRANTED)sent out. |
| Dec. 19, 1990 | Notice of Service of Answers to Interrogatories Served by Sand Hill Community Improvement Association filed. (from S. Lewis) |
| Dec. 19, 1990 | Notice of Service of Answers to Interrogatories Served by Sand Hill Community Improvement Association filed. (From S. Lewis) |
| Dec. 11, 1990 | Motion to Quash filed. (From R. J. Sanford) |
| Dec. 06, 1990 | Subpoena Duces Tecum filed. (from R. Denker) |
| Dec. 05, 1990 | Notice of Hearing sent out. (hearing set for Jan. 31, 1991, and Feb. 1, 4, 5, and 6, 1991: 9:30 am: Tallahassee) |
| Dec. 03, 1990 | (Respondent) Motion for Protective Order and Request for Sanctions W/Exhibits A&B filed. (From (from M. P. Donaldson) |
| Nov. 30, 1990 | Petitioner`s Motion for Continuance and Motion to Compel; Petitioner`s Interrogatories to City of Lynn Haven filed. (From R. Denker) |
| Nov. 09, 1990 | Order of Consolidation sent out. Consolidated case are: 90-0254 and 90-6913 |
| Nov. 09, 1990 | Notice of Hearing sent out. (hearing set for Dec. 10-14, 1990: 9:30 am: Tallahassee) |
| Oct. 30, 1990 | Motion to Consolidate (w/90-6913) filed. |
| Oct. 30, 1990 | (DER) Motion to Consolidation filed. (From Michael P. Donaldson) |
| Oct. 24, 1990 | Notice of Service of Interrogatories to Sand Hill Community Improvement Association; Notice of Service of Answers to Interrogatories Served By Sand Hill Community Improvement Association filed. (From Steve Lewis) |
| Oct. 23, 1990 | (Petitioner) Consolidated Petitions for Administrative Hearing & cover ltr filed. (From Steve Lewis) |
| Sep. 05, 1990 | CC Letter to Randall E. Denker from Steve Lewis (re: Respondent`s Information that was filed) filed. |
| Aug. 22, 1990 | CC Notice of Withdrawal filed. (From Charles M. Daniels) |
| Aug. 20, 1990 | (Petitioners) Notice of Appearance filed. (From Randall Denker) |
| Aug. 13, 1990 | Amended Notice of Hearing sent out. (hearing set for 11/19-23/90;9:30AM;Panama City) |
| Aug. 07, 1990 | Notice of Hearing sent out. (hearing set for Nov 12-16, 1990; 9:30am; PC) |
| Jul. 25, 1990 | Status Report filed. (From Steve Lewis) |
| Apr. 27, 1990 | Order of Continuance and Placing Case in Abeyance sent out. (case shall be in abeyance for 90 days) |
| Apr. 16, 1990 | Letter to S. Lewis from C. M. Daniels (re: excepting ltr as the Petitioner`s Stipulation to postpone and/or Abate Proceedings) filed. |
| Mar. 30, 1990 | (Intervenors) Motion to Temporarily Abate Proceeding filed. |
| Mar. 28, 1990 | Notice of Serving Interrogatories filed. |
| Mar. 28, 1990 | (Intervenor) Notice of Appearance filed. |
| Mar. 22, 1990 | Order Granting Intervention sent out. |
| Mar. 12, 1990 | (Respondent) Petition to Intervene filed. |
| Mar. 08, 1990 | (DER) Certificate of Service of Interrogatories filed. |
| Mar. 05, 1990 | (City of Lynn Haven) Notice of Appearance; & cover letter from B. Hutto filed. |
| Feb. 28, 1990 | Notice of Hearing sent out. (hearing set for May 24-25, 1990; 9:30; Panama City) |
| Feb. 28, 1990 | Order of Prehearing Instructions sent out. |
| Feb. 01, 1990 | Department of Environmental Regulation`s Response to Notice of Assignment and Order filed. |
| Jan. 30, 1990 | Document & cover ltr filed. |
| Jan. 19, 1990 | Initial Order issued. |
| Jan. 16, 1990 | Request for Hearing; Request for Assignment of Hearing Officer and Notice of Preservation of Record; filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 09, 1992 | Agency Final Order | |
| Nov. 27, 1991 | Recommended Order | Wastewater treatment system construction and dredge and fill permits-plant using wetlands treatment OK-crossing shellfish protected waters, no hardship shown. |
