STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF COMMUNITY AFFAIRS, )

)

Petitioner, )

)

vs. )

) FLORIDA EAST COAST RAILWAY COMPANY ) and TOWN OF MEDLEY, )

) CASE NO. 83-3271DRI

Respondents, )

)

vs. )

)

SAVE OUR WATERS, INC., and ) FRIENDS OF THE EVERGLADES, INC., )

)

Intervenors. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause from June 12 through June 15, 1984, in Miami, Florida.

APPEARANCES

For Petitioner: E. Lee Worsham, Esquire

Department of Community Affairs 2571 Executive Center Circle East Tallahassee, Florida 32301

For Respondent, Alan S. Gold, Esquire Florida East Timothy A. Smith, Esquire Coast Railway 1401 Brickell Avenue, PH-1 Company: Miami, Florida 33131

For Respondent, Maynard A. Gross, Esquire Town of Medley: 7331 Northwest 74th Street

Medley, Florida 33166

For Intervenors: Jack Milbery, Esquire

1940 Harrison Street, Suite 302

Hollywood, Florida 33020

At issue in this proceeding is the sufficiency of certain conditions contained in Resolution No. C-426 adopted by the Town of Medley (hereinafter referred to as the "Medley development order") approving, with conditions, a development of regional impact for an industrial park proposed to be developed by Florida East Coast Railway Company ("FEC") Petitioner, Department of Community Affairs ("DCA") has appealed the Medley development order asserting

essentially that the conditions contained in the order do not adequately protect the Biscayne Aquifer and the Dade County Northwest Wellfields from potential contamination by hazardous waste or materials. During the pendency of this proceeding, Intervenors, Save Our Waters, Inc., and Friends of the Everglades, Inc. ("Intervenors'), were allowed leave to participate as parties. Final hearing in this cause was scheduled for June 12 through 15, 1984, by Amended Notice of Hearing dated May 1, 1984. At the final hearing, DCA called James Orban, Pat Gleason, Howard Klein, Rafael Rodon, William Brant, Porter Knowles, Wesley Miller, Garrett Sloan, and Richard Johnson as its witnesses. DCA offered DCA Exhibits 1 through 30, which were received into evidence. FEC called Peter Rhoads, Peter Baljet, Sharon Dodrill, James Nicholas, Roger Barreto, Gerald Seaburn, William Schneider, and Paul Gruber as its witnesses. FEC offered FEC Exhibits 1 through 71, which were received into evidence. Intervenors called no witnesses, but offered Intervenors Exhibits 1 through 70, which were received into evidence.

In addition, members of the public testifying at the hearing were Anita Mann, Carol Rist, Michael Chenoweth, Joseph Podgor, Greg Read, and J. Harry Rothwell.

Counsel for the parties have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings are not included in this Recommended Order, they have been specifically rejected as being irrelevant to the issues presented for determination, or as not having been supported evidence of record.

FINDINGS OF FACT

1. FEC is the owner and developer of the project at issue in this proceeding, an industrial park to be located on 322.1 acres in Section 32, in the Town of Medley, in northwestern Dade County, Florida. Not at issue in this proceeding is the related but separate project planned by FEC for construction in Section 6, an unincorporated area of Dade County, lying immediately southwest of the property at issue.

   
   

2. FEC proposes 5,193,570 gross feet of floor space for the project, to be constructed in six phases. Seventy-four percent of the floor area is to be completed or under construction within the first five years of the park's operation. Expected uses of the park, when completed, are expected to fall into four general categories: Distribution, comprising 792,516 square feet; wholesale trade, 2,509,018 square feet; manufacturing, 873,520 square feet; and offices and services of 1,017,515 square feet. There is no specification of what types of industries will be located in the project, or what types of chemicals or materials each may handle.

   
   

3. FEC has applied for and received various approvals of the proposed industrial park. On June 6, 1983, the South Florida Regional Planning Council ("RPC") recommended approval of the FEC proposal, with conditions. On August 1, 1983, the town council of Medley adopted Resolution No. C-426, which approved and issued a development order for a development of regional impact for the project. Before the issuance of the Medley development order, Metropolitan Dade County adopted its own development order, Resolution No. Z-114-83, on June 23, 1983, approving the development proposed for Section 6 in the unincorporated area of the county.

   
   

4. In September, 1983, DCA appealed the Medley development order. On October 3, 1983, the RPC voted not to appeal that order.

5. The proposed project is located in an industrialized and largely unsewered area. The FEC property surrounds or abuts numerous out parcels within Section No. 32, which are served only by septic tank disposal systems, unlike the sewer system planned for the FEC development.

   
   

6. The Northwest Wellfield is located about three miles to the southwest of the proposed FEC industrial park at its closest point to Section 32, and about four miles from the furtherest reach of the park. The wells of the Northwest Wellfield form a line about two miles west of the Florida Turnpike, and four miles southwest of Medley. The wellfield presently comprises 15 wells, each 42 inches in diameter, fully penetrating the Biscayne Aquifer to a depth of about 70 feet. The county has equipped each well with a two-speed pump capable of producing ten million gallons per day (MGD) at low speed, and about 15 MGD at high speed. Current maximum capacity of the wellfield is about 225 MGD. The county holds a valid consumptive use permit from the South Florida Water Management District authorizing an average pumpage of 50 MGD. The county has applied for a permit to increase the pumpage to 180 MGD. The county is presently pumping the wellfield at the rate of 140 MGD to offset the reduction in pumpage from the Hialeah and Miami Springs wellfields as a consequence of the discovery of contamination in those fields. The Hialeah and Miami Springs wellfields are currently pumping at a rate varying from three to ten MGD.

   
   

7. The Northwest Wellfield, completed in 1983, at a cost to the public of

   $38,000,000, is located within the Biscayne Aquifer, which underlies all of southeastern Florida, including all of Dade County, from north of Boca Raton to the northwest area of Monroe County. The Biscayne Aquifer is a highly permeable, unconfined shallow aquifer composed of limestone and sandstone. The aquifer is a regional resource, serving as a sole source of potable water for the approximately 1.8 million residents of Dade County. Because of its cavernous nature, the aquifer has high vertical and horizontal permeabilities, permitting both rapid infiltration of rainfall as recharge to the aquifer, and rapid drainage through canals. Recharge to the aquifer is primarily from rainfall. In the latter part of the dry season, however, the main recharge to the aquifer results from infiltration from canals fed from water conservation areas. Net recharge from rainfall to the aquifer ranges from 8 to 20 inches per year.

   
   

8. Because of wide fluctuations in annual rainfall amounts in South Florida, recharge from canals to the wellfield is important. The South Florida Water Management District operates an intricate system of canals, levees, control structures, and large water conservation areas for flood control, water conservation, and salinity control. These systems significantly affect water levels in the Biscayne Aquifer, including the area around the Northwest Wellfield. The levees impound fresh water and prevent overland sheet flow from the Everglades eastward through agricultural and urban areas. The complex system of interconnected canals provides necessary drains for the urban coastal areas in the wet season and transfers water from the conservation areas during the dry season to replenish water in the aquifer removed by various municipal and county wellfields. Water levels in the canals are controlled by opening or closing control structures during the wet season to prevent flooding in urban agricultural areas, and leaving the structures closed during the dry season to conserve fresh water and limit saltwater intrusion. Canal levels usually reach their seasonal lows in May.

   
   

9. In the vicinity of the Northwest Wellfield, the system of levees and canals provides a substantial amount of recharge to the wellfield. The canal

   most significantly affecting water levels in the Northwest Wellfield is the Snapper Creek Canal, a borrow canal running immediately east of and parallel to the Turnpike, about two miles east of the wellfield.

   
   

10. The Snapper Creek Canal borders the western line of the FEC property in Section No. 6 and lies about one mile west of Section No. 32.

    
    

11. The terms "cone of influence" or "cone of depression" are terms applied to the area around a well from which the well draws water. Before a well commences pumping, ground water fills the pores and fractures in underground rock formations to a water level at which the fluid pressure of the ground water equals the atmospheric pressure exerted from above. Pumping the well reduces the fluid pressure of the ground water in the vicinity of the well, and results in a cone of depression or influence. Viewed from above, a drawing of a hydrologic cone of depression appears roughly circular, centered on the pumping well. A cross section of the cone would show an inverted shallow cone in the upper aquifer, whose lowest point coincides with the intersection of the cone where it enters the well. Pumping the well creates a down gradient for water below the area of the cone to flow toward the well. A "hydrologic cone of influence" is that point marking the outer bounds of the influence of a pumping well at a given point in time. A "regulatory cone of influence" arbitrarily fixes the location of the cone as a zone in which activity is regulated. The extent of a regulatory cone depends upon policy decisions taking into account the margin of safety deemed necessary for the protection of a well, regardless of the actual location of the hydrologic cone and technology available to protect ground water. The generally accepted value adapted by most regulatory agencies for the "regulated cone of influence" of a wellfield is the 0.25 foot draw-down line. This is so because it is also generally accepted that, with proper engineering practices and proper annual inspections, potential contaminants be generated and stored within this regulated cone of influence without inordinate risks of contamination to the underlying aquifer. The extent of a hydrologic cone of influence varies continuously, and is dependent upon the characteristics of the involved aquifer, such as its ability to transmit and to retain water, as well as the pattern and the amount of rainfall in the area, and the effect of nearby streams or canals. In addition, the rate of pumping of a well controls the extent of the cone of influence under any given set of aquifer conditions.

    
    

12. Dade County regulates land uses in the area of the Northwest Well field according to whether property falls within the projected cone of influence of the field. In March, 1981, Dade County adopted an ordinance prohibiting the handling, use, transportation, disposal, storage, discharge, or the generation of hazardous materials in an area west of the Florida Turnpike, defined as being within 210 days travel time for a hypothetical particle of contamination to the Northwest Wellfield. That initial protective zone lay entirely to the west of the Turnpike, and included neither Section 6 nor Section 32. As a result of further study and computer modeling, the county subsequently adopted Ordinance No. 83-82 on September 20, 1983, amending the map of the cone of influence for the Northwest Wellfield, and adopting new regulations requiring the use of sewers instead of septic tanks in industrial areas. The amended map projected a cone of influence that greatly expanded the protective zone around the wellfield, and included both Section 6 and Section 32. The regulatory cone of influence selected by Dade County does not conform to the hydrological cone of influence, but excepts instead the area around the well depressed by 0.25 feet or more from the original unpumped surface. The county based its modeling of the regulatory line on an assumed pumpage of 150 MGD for the Northwest Wellfield, which is approximately equal to its present pumpage, and 75 MGD from

    the Miami Springs, Hialeah, and Preston wellfields, which is approximately ten times the current combined rate of pumpage for those fields. In addition, in running its computer model, the county conservatively assumed the highly unlikely condition for the aquifer--a 210-day period during which the aquifer would receive no recharge from rainfall. This "worst case" condition has never occurred during this century. In addition to this assumption, the county's computer modeling also ignored the substantial contraction of the cone during every wet season because of rainfall recharge, and omitted consideration of recharge to the wellfield from canal systems in the area.

    
    

13. Within the line defined by its regulated cone of influence, Dade County currently bans all use, handling, generation, and transportation of hazardous materials. The cone of influence currently contained in the county's ordinances includes all of Section 32, including FEC's proposed project.

    
    

14. Dade County Ordinance No. 83-82 is considered an interim regulation, intended to remain in force while Dade County continues to gather information concerning the aquifer in the vicinity of the Northwest Wellfield under pumping conditions. Since the enactment of the wellfield protection ordinance, Dade County has initiated a study to formulate a more detailed management plan for the wellfield. Dade County is conducting the study and generally implementing its environmental regulation and wellfield protection through its Department of Environmental Resources Management (DERM). DERM's powers extend into municipal areas, such as Medley, as well as throughout the unincorporated area of Dade County. The agency has a budget in excess of $5 million annually. Both within the municipalities and throughout the unincorporated areas of Dade County, DERM reviews building permit applications of all industries expected to potentially discharge chemicals into sewer systems. DERM requires all such industries to obtain an annual permit under Section 24-35.1 of the Dade County Code, and to install pretreatment facilities to ensure that no unsafe chemicals are discharged directly into sewers. In addition, DERM requires that all users or generators of hazardous materials throughout Dade County follow best management practices, including ground water monitoring, when appropriate. A special section of the agency focuses on the enforcement of hazardous materials regulation. In addition, Dade County has initiated a hazardous waste cleanup fund, a liquid waste transporter's permit ordinance, and regulation for underground storage facilities for hazardous materials. Further, Dade County has adopted Resolution No. R-114-84, which incorporates a non-exclusive list of numerous hazardous materials subject to regulation under the wellfield protection ordinance and other regulations.

    
    

15. The more credible evidence of record in this cause establishes that even should Dade County remove the current ban on hazardous materials in Section 32, the proposed industrial park, as restricted by the Medley development order, would pose no significant threat of contamination to the Northwest Wellfield.

    As modeled under realistically conservative assumptions, including pumpage rated far exceeding the presently permitted legal rate of 50 MGD, the Northwest Wellfield hydrological cone of influence would reach into Section 32 for no more than one or two months per year, at the end of the dry season. For most of the year, the Snapper Creek Canal will act as a natural recharge boundary for the Northwest Wellfield. The canal would normally carry sufficient water northward from the Tamiami Canal to maintain a pressure head in the canal, driving water into the aquifer on both sides, replenishing the water drawn by the wellfield in the area west to the canal, and holding the cone of influence at the west side of the canal. On the east side of the canal, ground water would resume its natural flow to the southeast or east, unaffected by pumping in the Northwest Wellfield. During the dry season, the recharge mound in the Snapper Creek Canal

    would diminish, and the cone of influence could gradually expand, possibly recharging Section 32 for a month or two at the end of the dry season. As soon as the rainy season commenced again, however, the canal would fill up rapidly and resume its function as a recharge boundary. The more credible evidence establishes that it is highly unlikely that ground water contaminants originating from Section 32 would ever reach the Northwest Wellfield. Ground water moves only a few feet or even inches per day in the Biscayne Aquifer.

    Because Section 32 is located three to four miles from the Northwest Wellfield, the gradient to the wells in the cone of influence in Section 32 is extremely slack. In the driest of droughts, a hypothetical plume of contaminants beneath Section 32 would move only slightly towards the wellfield. At the return of the wet season, the gradient draining ground water from Section 32 eastward to the Miami Canal would be very steep and would rapidly flush any contaminants away from the wellfield and its cone of influence.

    
    

16. The Medley development order imposes several restrictions on the development which protect the Northwest Wellfield from any threat of potential contamination from the proposed industrial park. The development order requires the removal of all exotic vegetation and the planting of native species to reduce the demand for water and the use of fertilizer, a potential contaminant; restricts irrigation in the project to the use of non-potable water from onsite lakes and wells; obligates FEC to construct, or provide $600,000 to the Dade County Fire Department for construction of, a fire station according to county specifications within the primary response district for Section 32, to improve the fire department's capability to respond quickly to any spill of hazardous materials; requires FEC to submit to the RPC, Dade County and Medley a detailed management operation plan within six months of the date of issuance of the development order; and further requires that FEC submit a hazardous material spill contingent fee and response plan to the RPC, Dade County, and Medley within one year of the date of the development order. The development order contains detailed criteria for the management/operation plan, including inspections, monitoring, and the use of best management practices designed to minimize the risk of contaminating ground water. Further, these requirements include approval of specific standards for hazardous materials accident prevention, mitigation, and response; adequate pre-treatment facilities to assure segregated retention of hazardous waste and their removal and disposal in accordance with local, state, and federal requirements; that all facilities be readily open for inspection by Medley and DERM; and appropriate storage and accurate labeling of hazardous materials. The order also requires that FEC receive review and approval of its plans by the RPC, Medley, and Dade County. The RPC will, if deemed appropriate, in the course of review, impose its customary policy of ground water monitoring for a project using or generating hazardous materials.

    
    

17. The development order provides that whatever wellfield protection regulations Dade County might adopt after further monitoring of the Northwest Wellfield will apply to the FEC project in Section 32.

    
    

18. The RPC compiled, and Medley adopted, in the development order, "Table 22" as a tool for determining the types of land uses that should be excluded from locating in the proposed industrial park. In the event Dade County were to remove the present ban on hazardous materials in Section 32, the Medley development order requires that every firm and industry listed in Table 22 desiring to locate in the development to apply to RPC, Dade County, and Medley for a waiver of restriction on hazardous materials, based upon the tenant's demonstration that its use of appropriate best management practices or other measures will adequately protect the environment. These applications would be

    reviewed on a case-by-case basis to determine the adequacy of proposed protected measures. This condition is imposed in the development order in addition to existing local, state, and federal permitting requirements. Further, Dade County also independently requires the use of best management practices, including monitoring when appropriate, by any industry using hazardous materials in Dade County.

    
    

19. In summary, the evidence in this cause establishes that the current ban imposed by Dade County on the use, handling, generation, and transportation of hazardous materials in Section 32, when viewed in the context of the existing hydrological system in the area and the conditions imposed upon FEC in the Medley development order, combine to demonstrate the lack of a permanent ban on hazardous materials in Section 32 will pose no significant threat to the Northwest Wellfield.

    
    

20. There is no evidence of record in this proceeding to demonstrate that the proposed project is in any way inconsistent with an existing state land development plan, any local land development regulation, or the regional planning council report.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

22. Section 380.06(11)(a), Florida Statutes, requires a regional planning agency to submit a report and recommendations to local governments on the regional impacts of proposed developments. The report is required to:

    
    

    . . . identify regional issues based upon the following review criteria and make recommendations to the local government on these regional issues, specifically considering whether, and the extent to which:

    1. The development will have a favorable or unfavorable impact on the environment and natural resources of the region.

    2. The development will have a favorable or unfavorable impact on the economy of

       the region.

    3. The development will efficiently use or unduly burden water, sewer, sold waste disposal, or other necessary public facilities.

    4. The development will efficiently use or unduly burden public transportation facilities.

    5. The development will favorably or adversely affect the ability of people

       to find adequate housing reasonably acces- sible to their places of employment.

    6. The development complies with such other criteria for determining regional impact as the regional planning agency

       deems appropriate, including, but not limited to, the extent to which the development would create an additional demand for, or additional use of, energy, provided such criteria and related policies have been adopted by the regional planning agency pursuant to s. 120.54. Regional planning agencies may also review and comment upon issues which affect only the local governmental entity with jurisdic- tion pursuant to this section; however, such issues shall not be grounds for or

       be included as issues in a regional planning agency appeal of a development order under s. 380.07.

       
       

23. If a development, such as the one here involved, is not located in an area of critical state concern, Section 380.06(13), Florida Statutes, requires that:

    
    

    in considering whether the

    development shall be approved, denied, or approved subject to conditions, restrictions, or limitations, the

    local government shall consider whether, and the extent to which:

    1. The development unreasonably interferes with the achievement of the objectives of an adopted state land development plan applicable to the area;

    2. The development is consistent with the local land development regula- tions; and

    3. The development is consistent with the report and recommendations of the regional planning agency submitted pur- suant to subsection (11)

    
    

24. In determining appeals from local government development orders pursuant to Section 380.07(2), Florida Statutes, the Florida Land and Water Adjudicatory Commission is authorized to ". . . issue a decision granting or denying permission to develop pursuant to the standards of this chapter and may attach conditions and restrictions to its decision."

    
    

25. Section 380.08(1), Florida Statutes, prohibits issuance by governmental agencies of orders that are "unduly restrictive."

    
    

26. It is specifically concluded, that DCA has failed, to demonstrate, as it must, by a preponderance of the evidence, that the Medley development order is insufficient to protect the Biscayne Aquifer and the Northwest Wellfield. In the first instance, Dade County's existing wellfield protection ordinance, which is incorporated into the Medley development order, currently bans all hazardous materials from the project site, thereby eliminating risks from potential ground water contamination. DCA's contention that Dade County might in the future change the scope of the wellfield protection ordinance is purely speculative.

If future local regulations do not continue the ban on the use of hazardous

materials in Section 32, that action would presumably arise from a determination by local government that no threat to the wellfield exists and that no reason for continuation for the ban would be justified. Further, DCA has failed to demonstrate that the conditions and restrictions contained in the Medley development order are insufficient to protect the integrity of the Biscayne Aquifer and the Northwest Wellfield in the absence of the type of ban presently imposed by Dade County. To the contrary, the record in this cause adequately demonstrates that even if the ban imposed by the ordinance were lifted, the conditions and restrictions contained in the Medley development order are adequate to protect the Biscayne Aquifer and the Northwest Wellfield from any potential contaminant entering the ground water in Section 32.

Accordingly, based upon the foregoing Findings of Fact and Conclusions of Thaw, it is

RECOMMENDED:

That a Final Order be entered by the Florida Land and Water Adjudicatory Commission denying the relief requested by DCA, dismissing this appeal, and granting FEC permission to develop in accordance with the provisions, conditions, and restrictions contained in the Medley development order.

DONE AND ENTERED this 28th day of September, 1984, at Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301 904/488-9675

COPIES FURNISHED:

E. LEE WORSHAM, ESQUIRE DEPARTMENT OF COMMUNITY AFFAIRS 2571 EXECUTIVE CENTER CIRCLE EAST TALLAHASSEE, FLORIDA 32301

ALAN S. GOLD, ESQUIRE AND

TIMOTHY A. SMITH, ESQUIRE 1401 BRICKELL AVENUE, PH-1 MIAMI, FLORIDA 33131

MAYNARD A. GROSS, ESQUIRE 7331 NORTHWEST 74TH STREET MEDLEY, FLORIDA 33166

JACK MILBERY, ESQUIRE

1940 HARRISON STREET, SUITE 302

HOLLYWOOD, FLORIDA 33020

HONORABLE BOB GRAHAM GOVERNOR

THE CAPITOL

TALLAHASSEE, FLORIDA 32301

HONORABLE GEORGE FIRESTONE HONORABLE DOYLE CONNER SECRETARY OF STATE COMMISSIONER OF AGRICULTURE

THE CAPITOL THE CAPITOL

TALLAHASSEE, FLORIDA 32301 TALLAHASSEE, FLORIDA 32301

HONORABLE JIM SMITH HONORABLE RALPH TURLINGTON

ATTORNEY GENERAL COMMISSIONER OF EDUCATION

THE CAPITOL THE CAPTIOL

TALLAHASSEE, FLORIDA 32301 TALLAHASSEE, FLORIDA 32301

HONORABLE GERALD LEWIS HONORABLE BILL GUNTER

COMPTROLLER INSURANCE COMMISSIONER AND

THE CAPITOL TREASURER

TALLAHASSEE, FLORIDA 32301 THE CAPITOL

TALLAHASSEE, FLORIDA 32301

LINDA L. SHELLEY, ESQUIRE

OFFICE OF THE GOVERNOR MR. JOHN T. HERNDON

THE CAPITOL, SUITE 209 SECRETARY TO FLORIDA LAND AND TALLAHASSEE, FLORIDA 32301 WATER ADJUDICATORY COMMISSION

OFFICE OF THE GOVERNOR

MR. BARRY PETERSON THE CAPITOL

EXECUTIVE DIRECTOR TALLAHASSEE, FLORIDA 32301 SOUTH FLORIDA REGIONAL PLANNING

COUNCIL

3440 HOLLYWOOD BOULEVARD

SUITE 140

HOLLYWOOD, FLORIDA 33021

JOHN M. DEGROVE, SECRETARY DEPARTMENT OF COMMUNITY AFFAIRS 2571 EXECUTIVE CENTER CIRCLE EAST TALLAHASSEE, FLORIDA 32301

Docket for Case No: 83-003271

Orders for Case No: 83-003271