The Issue The issues to be determined in this appeal are whether the decision of the Community Development Board (“CDB”) to approve Flexible Development Application FLD2015-10040 filed by Appellee Clearwater Marine Aquarium, Inc. (“the Aquarium”), cannot be sustained by substantial competent evidence before the Board, or that the decision of the Board departed from the essential requirements of law.
Findings Of Fact The Aquarium is the owner of a 4.53-acre site, consisting of three parcels, located at 249 Windward Passage in Clearwater, Florida (“the property”). The site is on a small island near Clearwater Beach, known as Island Estates. A single roadway, called Island Way, provides ingress and egress to Island Estates. The Aquarium property is zoned Commercial. The property is designated Commercial General in the Future Land Use Element of the City of Clearwater Comprehensive Plan. The area around the Aquarium property is developed with attached dwellings, offices, a marina, an automobile service station, a restaurant, and a retail plaza with building heights ranging from one to six stories. On September 30, 2015, the Aquarium filed a Flexible Development Application for a Comprehensive Infill Redevelopment Project to develop two buildings, a dolphin pool, and a parking garage. To be approved, the proposed development must meet “flexibility standards” set forth in the City’s Community Development Code. The application required a Level Two approval. Under Section 4-206 of the Community Development Code, a Level Two approval requires that notice of the application be mailed to owners of properties “within a 200-foot radius of the perimeter boundaries of the subject property.” The notice mailed by the City identifies (by parcel number) only one of the three parcels which comprise the Aquarium site. The City Clerk mailed notice of the Aquarium’s application to owners of parcels located within 200 feet of the single parcel identified in the notice. The calculation of 200 feet was not made from the boundaries of the Aquarium’s combined three-parcel property. Whether the mailed notice conformed with Section 4-206 was not an issue raised before the CDB. The record does not show the reason the calculation was made in the manner it was made, whether it was consistent with the City’s interpretation of the applicable code requirement, or whether it was based on the location of the proposed structures. There is no evidence in the record about what additional property owners, if any, would have received notice if the boundaries of the entire site had been used. Section 4-206 of the Community Development Code also requires that a sign be posted on the “parcel proposed for development.” The record does not show whether the sign was posted. Appellant Kohut Family Trust received mailed notice of the Aquarium’s application by and through Peter Kohut at his residential address. On January 12, 2106, Mr. Kohut attended a town hall meeting about the Aquarium’s application, held at St. Brendan’s Church on Island Estates. Mr. Kohut stated that he sent e-mails and through word-of-mouth was able to get about 55 people to attend the town hall meeting. At the town hall meeting, an Aquarium representative presented information about the proposed project and answered questions. On January 19, 2016, the CDB conducted a public hearing on the Aquarium’s application. Mr. Kohut appeared at the public hearing, requested and was granted party status by the CDB, and made a presentation to the CDB. Mr. Kohut did not mention the Kohut Family Trust in his presentation to the CDB and did not request party status for the Kohut Family Trust. Mr. Kohut told the CDB that “the only notification that was given was given by the civic organization to its members.” Because Mr. Kohut knew he had received mailed notice, Mr. Kohut likely meant that the only detailed information about the Aquarium’s proposed project was provided at the town hall meeting. Mr. Kohut was provided an opportunity to present witnesses, introduce evidence, and to cross-examine witnesses at the public hearing. He did not introduce any exhibits or present any witnesses. Mr. Kohut objected, generally, about increased traffic and lowered property values and, specifically, about his desire for curbs and gutters. Mr. Kohut did not identify any specific criterion for approval of the Aquarium’s application that he believed would not be met. The City Planner, Matt Jackson, was accepted by the CDB as an expert witness in the areas of zoning, site plan analysis, planning in general, and the City’s landscape ordinance. Mr. Jackson discussed the Aquarium’s application and stated his opinion that it complied with all applicable Community Development Code and Comprehensive Plan requirements. Mr. Jackson was cross-examined by Mr. Kohut. The Aquarium’s attorney made a presentation to the CDB in support of the application and introduced the testimony of engineers Al Carrier and Robert Pergolizzi. The CDB accepted Mr. Carrier as an expert witness in the areas of civil engineering, land use planning, and planning in general. The CDB accepted Mr. Pergolizzi as an expert witness in the areas of planning, land use, and traffic impact studies. Mr. Pergolizzi was cross-examined by Mr. Kohut. The attorney for Island Way Grill, Inc., obtained party status for his client and made a presentation in support of the Aquarium’s application. Steven Traum obtained party status and made a presentation to the CDB. Mr. Traum did not appear for oral argument on April 8, 2016, and did not file a proposed order. On January 22, 2016, the City entered a Development Order memorializing the CDB’s approval of the Aquarium’s application.
The Issue Whether the Florida Fish and Wildlife Conservation Commission (“the Commission”) correctly determined that a sailboat owned by Jeffrey Sundwall was a “derelict vessel” within the meaning of section 823.11(1)(b)1., Florida Statutes (2017),1 and thus subject to sections 376.15(3)(a) and 705.103, Florida Statutes.
Findings Of Fact Based on the evidence adduced at the final hearing, and the record as a whole, the following Findings of Fact are made: The Parties The Commission is empowered to remove, or cause to be removed, derelict vessels from Florida’s public waters. §§ 376.15(3)(a) and 823.11(3), Fla. Stat. A vessel is considered to be “derelict” if it is left, stored, or abandoned “[i]n a wrecked, junked, or substantially dismantled condition upon any public waters of this state.” § 823.11(1)(b)1., Fla. Stat. Mr. Sundwall was the registered owner of a 28-foot sailboat named the Sea Joy. Facts Specific to the Instant Case Lieutenant Andy Cox of the Commission found the Sea Joy anchored off Wisteria Island in the Florida Keys on March 27, 2017. The Sea Joy had an expired registration decal, and a large amount of seaweed on the outboard motor, which probably rendered the motor inoperative. The Sea Joy had been left open and exposed to the elements, and Lieutenant Cox observed one-inch deep, green water inside the vessel. Lieutenant Cox also determined that the Sea Joy had no working bilge pumps or battery power. Lieutenant Cox initiated a derelict vessel investigation. While the Commission did not take custody of the Sea Joy at that time, Lieutenant Cox affixed a large, red sticker to the Sea Joy announcing that the vessel’s owner had 5 days before the Commission disposed of it pursuant to its authority under chapter 705. Lieutenant Cox met with Mr. Sundwall on approximately March 28, 2017, in a Florida Keys jail and served him with three infraction citations. Lieutenant Cox also provided Mr. Sundwall with a written notice indicating the Commission considered the Sea Joy to be a derelict vessel. On July 24, 2017, the County Court for Monroe County issued an Order requiring the Monroe County Sheriff’s Office and the Commission to preserve the Sea Joy as essential evidence in a criminal case against Mr. Sundwall. Thus, the Sea Joy could not be “destroyed, removed, altered, moved, or otherwise disposed of.” After Hurricane Irma struck Florida in September of 2017 and wrecked several hundred vessels, the Commission partnered with the Coast Guard in an effort to identify and remove derelict vessels. If an owner of a derelict vessel waived his or her ownership interest, then the State of Florida would not charge for a vessel’s removal and disposal.2 Wisteria Island is owned by the FEB Corporation. In November of 2017, the Commission found the Sea Joy hard aground on the shore of Wisteria Island, and the Sea Joy could not be moved without mechanical assistance. The Sea Joy had no mast or sail, and the vessel was still left open and exposed to the elements. In sum, the Sea Joy was nothing more than a hull at that point. Contemporaneous photographs and video of the Sea Joy indicate that it was resting on “wrack lines” left by the tide. Those wrack lines demonstrated that the Sea Joy was on public waters at high tide.3 In response to a request for reconsideration from the State of Florida, the Monroe County Court issued an Order on December 12, 2017, allowing the State to remove the Sea Joy from Wisteria Island. On December 17, 2017, the Commission transported the Sea Joy to a marina in Marathon, Florida. 2 The Commission’s attorney announced during the final hearing that the Commission would not seek to recover the costs of removing and disposing of the Sea Joy from Mr. Sundwall. Ordinarily, the owner of a derelict vessel is responsible for all costs associated with its removal and destruction. See §§ 376.15(3)(a), 705.103(4), and 823.11(3)(b), Fla. Stat. However, in the aftermath of Hurricane Irma, the State of Florida assumed all of those costs. 3 This finding is based on the testimony of Major Robert Rowe of the Commission, and the undersigned found him to be a credible and persuasive witness. Officer David Bellville of the Commission met with Mr. Sundwall on January 4, 2018, at the Stock Island Detention Center in Key West. Officer Bellville served Mr. Sundwall with a notice stating that he had 30 days to take possession of the Sea Joy or it would be destroyed pursuant to the Commission’s authority under chapter 705. Officer Bellville also served Mr. Sundwall with an election of rights form stating he had 21 days to protest the Commission’s proposed action. Mr. Sundwall declined to waive his property interest in the Sea Joy and ultimately executed the election of rights form and a request for an administrative hearing on January 20, 2018. Mr. Sundwall’s hearing request was postmarked on January 23, 2018, and received by the Commission on January 29, 2018. Because Mr. Sundwall’s documents were received after the 21-day deadline, the Commission had the Sea Joy destroyed on February 21, 2018, and issued an Order on March 6, 2018, dismissing Mr. Sundwall’s hearing request with prejudice. Mr. Sundwall appealed the Commission’s Order to the First District Court of Appeal, and the appellate court issued an opinion in Sundwall v. Florida Fish & Wildlife Conservation Commission, 271 So. 3d 1239 (Fla. 1st DCA 2019), on May 16, 2019, reversing and remanding the Commission’s dismissal: After Hurricane Irma struck Florida in 2017, the Florida Fish and Wildlife Conservation Commission (FWC) identified Mr. Sundwall as the owner of a boat declared derelict upon the waters of Florida. See § 823.11, Fla. Stat. (2017) (defining derelict vessels and empowering FWC to deal with them). Mr. Sundwall was incarcerated at the time. FWC sent Mr. Sundwall notice of the declaration, an explanation of his rights, an Election of Rights form, and a form for a Petition for Administrative Proceeding. The notice stated that a failure to make any election within twenty-one days from receipt of the notice would constitute a waiver of the right to a hearing. Mr. Sundwall signed a receipt for these documents on January 4, 2018. The twenty-first day after that fell on January 25, 2018. He signed the Election of Rights form, requesting a hearing; and also completed the Petition for Administrative Proceeding, dating both of his signatures January 20, 2018. There was no certificate of service or institutional date stamp on any of the papers, nor any institutional mail log indicating when he gave the papers to prison officials. The envelope was postmarked January 23, 2018. FWC stamped it as received on January 29, 2018. FWC dismissed the petition with prejudice because FWC did not receive it within twenty-one days and Mr. Sundwall did not request an extension within that period. FWC's order of dismissal acknowledged that the envelope from Mr. Sundwall was postmarked January 23, 2018. However, FWC relied on Florida Administrative Code Rule 28- 106.104(1), which defines filing as receipt by the agency clerk during normal business hours. In his pro-se brief, Mr. Sundwall relies on the January 20 date of his signatures and the January 23 postmark date, arguing that he is entitled to the benefit of the prison mailbox rule under Haag v. State, 591 So. 2d 614 (Fla. 1992). FWC does not dispute that argument, but argues that Mr. Sundwall provided no proof that he placed his papers in the hands of prison officials before expiration of the deadline; i.e., no institutional mail stamp or log and no certificate of service. The record does not reflect whether Mr. Sundwall’s institution utilizes dated mail stamps or logs, but one reason there were no certificates of service is because none of the forms that FWC supplied to him contained a certificate of service. In a literal sense, however, Mr. Sundwall "provided" FWC a postmarked envelope that evidences timeliness. He argues on appeal that FWC calculated the time erroneously, and he points out that the envelope was postmarked on January 23. The postmark date was before expiration of the twenty-one-day period for requesting a hearing, and therefore the petition necessarily was submitted to prison officials before the deadline. FWC acknowledged the postmark date in its order of dismissal, and the postmarked envelope is in the record. We therefore reverse the order of dismissal and remand for further proceedings on Mr. Sundwall's petition.[4] Ultimate Findings There is no dispute that the Sea Joy was a “vessel” within the meaning of section 327.02(46), Florida Statutes. When it was beached on Wisteria Island, the Sea Joy was a “derelict vessel” within the meaning of section 823.11(1)(b)1. It was left or abandoned in a wrecked, junked, or substantially dismantled condition upon the public waters of this state. While the Sea Joy no longer exists, the photographic evidence and the witness testimony conclusively demonstrate that it was wrecked or substantially dismantled by the time it ran aground on Wisteria Island. The photographic evidence also demonstrated that the Sea Joy was upon the State of Florida’s public waters at high tide. Mr. Sundwall made several factual arguments during the final hearing. For instance, section 823.11(1)(b)3. defines a “derelict vessel” as one that is “[d]ocked, grounded, or beached upon the property of another without the consent of the owner of the property.” Mr. Sundwall testified that he had permission for the Sea Joy to be on Wisteria Island. Mr. Sundwall’s argument is not persuasive because the Commission determined the Sea Joy to be a 4 To whatever extent that Mr. Sundwall is seeking damages from the Commission for the Sea Joy’s destruction, he must pursue that claim before a different tribunal. DOAH’s role in this matter is limited to making findings as to whether the Sea Joy was a “derelict vessel” within the meaning of section 823.11(1)(b)1. and thus subject to sections 376.15(3)(a) and 705.103. derelict vessel pursuant to section 823.11(1)(b)1., not section 823.11(1)(b)3. However, even if the Commission had deemed the Sea Joy to be derelict pursuant to section 823.11(1)(b)3., Mr. Sundwall’s testimony that he had permission to keep the Sea Joy on the shore of Wisteria Island was uncorroborated and unpersuasive. In preparation to take control of the Sea Joy, Mr. Sundwall asserted that a friend of his had attempted to inspect the Sea Joy while it was beached on Wisteria Island. He claimed that the Commission forced Mr. Sundwall’s friend away from the wrecked vessel. Because the Commission was dealing with several hundred displaced vessels in the aftermath of Hurricane Irma, it is very unlikely that the Commission would have been in a position (or to have been inclined) to prevent any willing person from removing the derelict Sea Joy from Wisteria Island or inspecting it. Moreover, the undersigned generally found Mr. Sundwall’s testimony on this point to be unpersuasive and self-serving. Mr. Sundwall’s witnesses did not present any persuasive testimony to corroborate his assertions. Mr. Sundwall also argued that the instant case is part of the Commission’s ongoing effort to retaliate against him for undermining a criminal investigation. Even if that were the case, there is no evidence that the Commission left the Sea Joy anchored off Wisteria Island or caused it to become a derelict vessel. Mr. Sundwall asserts that he has been denied due process. However, the facts refute that assertion because: (a) he was given notice of the Commission’s proposed action to dispose of the Sea Joy; (b) he had an opportunity to request a hearing; (c) his case was referred to DOAH; and (d) a formal administrative hearing was conducted on February 7, 2020, at which he fully participated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Fish and Wildlife Conservation Commission issue a Final Order deeming the Sea Joy to have been a “derelict vessel” within the meaning of section 823.11(1)(b)1. and that the Commission was authorized under section 376.15(3)(a) to relocate or remove the Sea Joy. DONE AND ENTERED this 1st day of June, 2020, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 2020. COPIES FURNISHED: Brandy Elaine Elliott, Esquire Florida Fish & Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399 (eServed) Jeffrey Ray Sundwall, 829113 Jackson Correctional Institution 5563 10th Street Malone, Florida 32445 Eric Sutton, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Emily Norton, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed)
The Issue As stated by the Hearing Officer the issue in this case is whether the District should issue a surface water management permit to Russell E. and Marilyn F. Scott, and Caloosa Television Corporation for the construction and operation of a surface water management system to serve a television signal tower and control building in Southeast Lee County, Florida. There are no significant water resource impacts related to the management of surface water by the proposed project. The harm at issue in this case is the potential for wood storks and other wading to strike the tower and guy wires which are not structures related to management and storage of waters. The parties disagree as to whether the District has jurisdiction to consider the bird impacts related to collisions with the tower and guy wires, and if so, whether the tower and guy wires will have a significant adverse impact on the water resources of the state through a reduction of wood storks, an endangered species, and other wading birds which through feeding on fish remove biomass from such water, thereby maintaining water quality. In determining jurisdiction in this case, the parties disagree on the meaning of "works" and "surface water management system" as used in Chapter 373, F.S. and Rule 40E-4, F.A.C. The petitioners argue that since one set of guy wires will be placed across one end of the cypress wetland located on the subject property, the entire project including the guy wire and tower is a "works" and part of the surface water management system, which is subject to the permitting jurisdiction of the District. The District and respondent Caloosa Television Corporation contend that the tower and guy wires are not structures related to surface water management and are not "works" nor part of the surface water management system, and therefore, bird mortality, as a result of hitting the tower and guy wires, is not subject to the permitting jurisdiction of the District. FINDINGS ON EXCEPTIONS At the Governing Board meeting of October 6, 1988, the petitioners waived Findings of Fact exceptions 1 and 2 of Petitioners' Exceptions to Finding of Fact, Conclusions of Law, and Recommended Order. Therefore, Findings of Fact exceptions 1 and 2 are rejected. The petitioners' exceptions 1, 2, and 3 to Conclusions of Law of the Recommended Order are rejected as set forth in the District's Response To Exceptions Filed by Petitioners filed on September 27, 1988, and attached hereto as Exhibit B and made part of this Final Order. The Governing Board accepts the exceptions filed by the District and the respondent, Caloosa Television Corporation, as set forth herein under Conclusions of Law.
Findings Of Fact On or about September 14, 1987, Caloosa filed Application Number 09147- B, for a surface water management permit, with the District. This application was for the construction and operation of a surface water management system to serve a 1249 foot high television transmission tower and control building in southeast Lee County, Florida. The proposed location of Caloosa's project is approximately one mile north of the boundary of the Corkscrew Swamp Sanctuary, which is owned and operated by Audubon, and specifically, approximately two and one-half miles north of a wood stork colony located within the Sanctuary. This rookery is the largest rookery of wood stork, a federally endangered wading bird, in the United States. The project site is 60 acres in size, and approximately square in shape. It is improved agricultural land, with a circular cypress wetland of about 5.5 acres located near the center of the site. Extending outward from the cypress wetland are two ditches, one running due east and the other due west. The existing surface water flow varies with the seasons and intensity of storm events. During dry seasons, the rainfall runoff flows into the cypress wetland and percolates into the ground. However, during wet seasons, water builds up in the cypress wetland and flows into the two ditches. In larger storm events, the project site is entirely under water, and sheet flows occur to the southwest. The proposed project should have a negligible impact on the existing surface water system since the total impervious area will only be approximately one acre, or 1.7 percent of the total project area of 60 acres. The project consists of a radio tower and guy wires, a 3150 square foot control building, fill pad and parking area, guy wire anchor slabs, and approximately 1650 feet of lime rock road with an equalizer culvert to maintain existing flow. Three sets of six guy wires will extend from the 1249 foot high tower and connect to the ground at anchor slabs located near the edge of the project site. The entire project is located outside of the limits of the existing wetland, but one set of guy wires does cross the western edge of the cypress wetland. Caloosa proposes to use the tower as a "community tower" which will be capable of supporting more than one transmitting antennae. In addition to Caloosa's antennae, the tower will be able to support up to five commercial radio stations and up to sixty two-way communication antennae. Caloosa has had contacts from several commercial radio stations and governmental agencies which have expressed interest in co-locating their antennae on Caloosa's tower. After review of this application, District staff advised Caloosa, on November 23, 1987, that it was recommending approval of the application since it was felt that any impact from the project on wood storks would not result from the construction and operation of this project. At hearing, the District supported the issuance of this permit, but urged that the tower and guy wires are not a part of the surface water management system over which the District has any permitting jurisdiction. Audubon timely filed its request for a hearing on the District's intent to issue this permit, and at hearing opposed the issuance of this permit to Caloosa, urging that the tower and guy wires were an integral part of the surface water management system, and therefore subject to the District's permitting jurisdiction. The wood stork and other wading birds are an important link in the biological and ecological chain. They are the main mechanism for removing certain species of fish from ponds, lakes and waters of the state. If there is no predation by wading birds, then an increase in the biomass of the water system would be expected, water quality would decrease, and fish kills would result. Ponds that receive biomass reduction by wading birds have a reduction in fish biomass of approximately 75%, with no loss in species, while ponds that do not receive wading bird predation lose almost all individual aquatic animals through reduced water quality resulting from retention of up to 94% of the biomass from dead fish. The reduction in biomass is in direct proportion to the number of birds feeding in a pond, and therefore a 5% reduction in birds will result in a 5% lessening of the biomass reduction. Water quality will be reduced by a lowering of oxygen levels in such waters due to the excessive retention of nutrient laden biomass. During the nesting season, wood storks feed in various ponds and wetland areas that surround the rookery. Their primary feeding areas are within ten miles of the rookery. The proximity of these sites allow the birds to make several flights per day between the colony and the feeding site, and to do so with less energy expended than with feeding sites that are farther away. Caloosa's project site is located between the rookery and a primary feeding area to the north that is within ten miles of the rookery. The proximity of this feeding area allows the birds to fly low, at tree top level, to the site, without the use of thermal updrafts that they use to attain altitudes of up to 5000 feet when traveling greater distances. Thus, if the tower is built, it would be likely that wood storks would fly in the direction of, and at the height of, the tower to reach this primary feeding area. However, it was not established how many such birds actually feed in this nearby area, or how many fish are in these ponds and wetlands. The wood stork colony at Corkscrew Swamp Sanctuary has been experiencing a decline in productivity from approximately 6000 nesting pairs in 1960 and 1966, there has been a steady decline in the number of nesting pairs in the colony, and in 1987, there were no nesting pairs in the colony. During 1988, 750 nesting pairs have been observed. The steady decline in the wood stork colony population is the result of already existing developmental pressures and changes in drainage patterns which have adversely affected the birds' feeding habitats. For nesting to be successful, two adult birds are required per nest during the nesting season, which usually occurs from November to March. This allows one adult bird to be away from the nest obtaining food while the other adult keeps the nest warm and safe from predators. If a nest is left unattended through the loss of one adult bird, it is likely that the entire nest will be lost since the fledglings are very vulnerable throughout the nesting season to predators and changes in temperature. There are usually two or three fledglings per nest. For this reason, the loss of five adult birds per year, for example, results in a total loss to the colony of between ten to fifteen fledglings. This loss compounds each year, as birds lost one year are not available to reproduce in following years. Generally, transmission towers can pose a hazard to birds due to the potential for collisions. Illuminating such towers at night does not decrease this danger since the birds are simply attracted to lights. Strobe lighting has also been tried, but it appears that birds ignore, or are not deterred, by strobes. In this case, Caloosa has agreed to accept conditions placed upon the approval of this project by the Lee County Board of Zoning and Adjustments on March 16, 1987, which include placement of aircraft warning balls on the guy wires and the tower itself, habitat improvement including the creation of a wetland and a wildlife through way, if necessary, and commencement of a monitoring system to identify any problems with wood stork mortality as soon as possible. A very extensive study of bird kills and transmission towers was conducted over a thirty year period involving the WCTV tower in Tallahassee, Florida. The WCTV tower was found to kill 3.9 wading birds per year on average. Based in part upon this data, the U.S. Fish and Wildlife Service concluded that wood stork collisions with the tower will not result in significant mortality, and an "incidental take" of five wood storks per year should result. This is a level of mortality which is noteworthy, since any loss to an endangered species is significant, but is clearly below that which would cause jeopardy to the species. Although Audubon correctly pointed out that the conditions present in the WCTV study do not exactly match those present in this case, such as the fact that there are almost three times as many wading birds in the area of the Caloosa tower as were in the area of the WCTV tower, as well as the differences in the geographical relationship of the tower to nearby wading bird colonies and feeding areas, nevertheless, the WCTV study is relevant and should be considered by the District since it is the most exhaustive study of its kind ever conducted. Caloosa presented evidence of a study it conducted over approximately a one month period in May and June, 1988, of a comparable existing radio tower, the WHEW tower, located near the subject property to the east. Although substantial wood stork and other wading bird activity was observed around the WHEW tower, there were no collisions of wood storks with this 1010 foot high tower. While not a scientific study in the strictest sense, and although it was not conducted for as extensive a period as the WCTV study, nevertheless, the District should consider the WHEW study conducted by Caloosa since it involves a comparable tower in close proximity to the subject property, and the person who conducted the study for Caloosa and who testified at hearing, Robert E. Gatton, appeared particularly credible. The Federal Communications Commission has approved the location of Caloosa's tower. I5. The Florida Game and Fresh Water Fish Commission has recommended that the proposed location for Caloosa's tower be changed to an alternate site which would present a less serious obstacle to the Corkscrew wood stork nesting colony and other wading birds. This recommendation is based on the policy that the mortality of even one wood stork is too much and may present a danger to the population of the wood stork rookery. It was not shown, however, that a basis in fact exists for concluding that the loss of five or fewer wood storks per year would present such a danger. The Commission's recommendation is also based upon a concern that transmission towers will proliferate in the area, and thereby further interfere with the flight paths of wood storks and other wading birds to their feeding locations. However, the fact that Caloosa is seeking to construct a "community tower" to be shared with several governmental agencies, as well as broadcasting stations, will actually serve to decrease this potential proliferation. While there is a potential for wood storks or other wading birds in the area to be killed or injured by striking Caloosa's tower or the guy wires while in flight, the extent of this danger is speculative, but would not appear to exceed five wood storks per year. Under these circumstances, there would not be a significant threat to the population, or continued viability, of the Corkscrew rookery. It has not been shown, by the evidence in this record, that any loss of wood storks and other wading birds caused by this project will result in fish kills through a significant reduction of predation and the resulting failure to remove accumulated biomass in ponds and waters in the area. It was not demonstrated that a fish kill will, or is even likely, to occur. While the loss of five wood storks would result in a certain amount of biomass not being removed from the area's wetlands, nothing in the record suggests that this amount will have an adverse impact on the state's water resources or will otherwise be significant. Therefore, any relationship between the tower proposed by Caloosa and impacts associated with biomass accumulation is purely speculative and de minimis. Fish kills occur naturally as water levels in seasonal marshes and ponds lower in the dry season. The water quality impact of such kills is relatively short-lived, lasting up to two months or until the next wet season begins, at which time water quality parameters return to normal. The evidence produced at hearing does not establish that the project and its surface water management system will have any significant or measurable effect on drainage of surface water runoff from the subject property, or on adjacent properties. The drainage system proposed by Caloosa will utilize the existing ditches and the natural cypress pond on the property. It was established that the post-construction effect of the project on drainage would be insignificant. There are, therefore, no drainage impacts associated with this project.
Recommendation Based upon the foregoing, it is recommended that the District enter a Final Order approving Caloosa's application for surface water management permit number 09147-B, subject to the conditions, agreed to by Caloosa, which were imposed by the Lee County Board of Zoning and Adjustment in its approval of this proposed development. DONE AND ENTERED this 29th day of August, 1988, in Tallahassee, Leon County, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5578 Rulings on Audubon's Proposed Findings of Fact: 1. Adopted in Findings of Fact 1, 3. 2-3. Adopted in Finding of Fact 4, but otherwise Rejected as a conclusion of law rather than a finding of fact. 4-5. Adopted in Finding of Fact 5, but otherwise Rejected as unnecessary, irrelevant and as a summation of testimony. 6. Adopted in Finding of Fact 2. 7-8. Adopted in Finding of Fact 7. 9-10 Adopted in Finding of Fact 8. 11. Adopted in Finding of Fact 11. 12-15. Adopted and Rejected, in part, in Finding of Fact 12. Adopted in Findings of Fact 8, 10, but otherwise Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 9. Adopted in Findings of Fact 10, 12, but otherwise Rejected as cumulative and as argument on the evidence. Rejected in Finding of Fact 13, and otherwise as simply a summation of the testimony and argument on the evidence. 20-21. Adopted in Finding of Fact 6. 22-23. Rejected in Findings of Fact 15-17. 24. Adopted in Finding of Fact 15. Rulings on Caloosa's Proposed Findings of Fact: Adopted in Findings of Fact 1, 2. Adopted in Finding of Fact 4. Adopted in Finding of Fact 13. Adopted in Finding of Fact 1. Adopted In Finding of Fact 5. Adopted in Finding of Fact 19. Adopted in Finding of Fact 5, but otherwise Rejected as a conclusion of law and as simply a summation of testimony. Adopted in Finding of Fact 16. 9-10. Adopted in Finding of Fact 12. Adopted in Findings of Fact 12, 13. Adopted in Finding of Fact 11. Adopted in Findings of Fact 4, 15. Adopted in Finding of Fact 6. 15-16. Adopted in Finding of Fact 17. 17. Adopted in Finding of Fact 18, but otherwise Rejected as irrelevant and as cumulative. Rulings on the District's Proposed Findings of Fact: 1-2. Adopted in Finding-of Fact I. 3. Adopted in Finding of Fact 2. 4-5. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 3. Adopted in Finding of Fact 8. Adopted in Findings of Fact 12, 14, 16. Adopted in Finding of Fact 12. 11. Adopted in Finding of Fact 13. 12. Adopted in Finding of Fact 16. 13. Adopted in Finding of Fact 15. 14. Adopted in Finding of Fact 11. 15. Rejected as irrelevant. 16. Adopted in Finding of Fact 11. 17. Adopted in Finding of Fact 6. 18-19. Adopted in Finding of Fact 5. COPIES FURNISHED: Charles Lee Senior Vice President Florida Audubon Society 1101 Audubon Way Maitland, Florida 32751 Russell P. Schropp, Esquire Post Office Box 280 Fort Myers, Florida 33902 James K. Sturgis, Esquire Post Office Box 24680 West Palm Beach, Florida 33416 John R. Wodraska Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416 =================================================================
Findings Of Fact Vroom acquired an existing, incomplete condominium project of 96 units on the ocean side of U.S. Highway #1 at mile marker, 83.2, Islamorada, Florida. The project, now called Beacon Reef, is to be finished as a luxury facility with complete recreational facilities, including those for water-oriented sports. In February, 1980, Vroom filed a short-form application with DER for a permit to construct a private 425 foot x 6 foot pier for the condominium with four-finger piers on "T" sections, ranging in length from 335 feet to 240 feet, spaced 55 feet apart, and install 97 pilings, a maximum 450 feet seaward so as to provide one boat slip for each unit. The old existing dock will be removed (DER #3). A subsequent revision (DER #4) aligned the proposed pier with the one of Petitioner, who owns the property adjacent to the south. Following DER's appraisal (DER #1 and #2) and Vroom's agreement to use a small boat and motor to move the construction barge (DER #6), DER noticed its intent to issue the permit on May 19, 1980 on the finding that, pursuant to Sections 253.123 and 403.087, Florida Statutes, and Section 17-4.07, Florida Administrative Code, "the project will not adversely impact navigation, marine resources, nor water quality, providing the following stipulations are met: Construction shall not be initiated until Department of Natural Resources' approval is received. Construction barge shall be maneuvered in position with a small fifteen foot boat with a small 50 hp or less outboard motor. There shall be no fuel nor sewage pump-out facilities. No live-aboards shall be permitted. A day marker shall be placed approximately 30 feet waterward of each end of the outward "T" section to define and mitigate destruction of adjacent shallow water areas. Vroom accepted these restrictions and at the hearing, further agreed to place channel markers from the pier to the closest navigable point about 1/2 mile away so as to eliminate one of the concerns of the South Florida Regional Planning Council (DER #7). DER's two environmental specialists' testimony and appraisal concluded that the construction and use of the pier would not adversely impact on the water quality or biological resources nor interfere with navigation. The substrata is generally hard rock with scattered turtle grass and cuban shoal- weed found seaward as the water depth increases. This type of bottom is called "flats" as it is shallow with a uniform or gradually-sloping bottom; it is the typical feeding ground for one of the popular sports fish called Bonefish. Although these fish are easily frightened by the noise of a boat engine, the record does not reveal that this is harmful to the fish. The Petitioner speculated, surmised or opined that the use of the pier would damage or have an adverse impact on the water quality and marine resources, and interfere with navigation. However, beyond the allegations, no evidence was presented in support of these contentions.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Regulation grant the application of Vroom International, Inc. to build a pier in connection with its Beacon Reef Condominium, Islamorada, Florida, subject to the restrictions stated in the intent to issue, together with the requirement that markers be installed and maintained on either side of a channel connecting the pier and the closest and best navigable waters. DONE and ENTERED this 16th day of October, 1980, in Tallahassee, Florida. HAROLD E. SMITHERS Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1980. COPIES FURNISHED: Richard H.M. Swann, Esq. GASTON, SNOW, ET AL. 2809 Ponce de Leon Boulevard Suite 550 Coral Gables, FL 33134 H. Ray Allen, Esq. Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Fred Tittle, Esq. Post Office Drawer 535 Tavernier, FL 33070 Vroom International, Inc. c/o John P. Wilson Upper Keys Marine Construction Box 18AAA Key Largo, FL 33037 =================================================================
The Issue The issues in this case are whether IP is entitled to issuance of National Pollutant Discharge Elimination System (NPDES) Permit Number FL0002526-001/001-IW1S ("the proposed permit"), Consent Order No. 04-1202, Authorization for Experimental Use of Wetlands Order No. 04-1442, and Waiver Order No. 04-0730 (collectively, "the Department authorizations"), which would authorize IP to discharge treated industrial wastewater from its paper mill in Cantonment, Escambia County, Florida, into wetlands which flow to Elevenmile Creek and Perdido Bay.
Findings Of Fact Introduction A. The Parties The Department is the state agency authorized under Chapter 403, Florida Statutes (2006),2 to regulate discharges of industrial wastewater to waters of the state. Under a delegation from the United States Environmental Protection Agency (EPA), the Department administers the NPDES permitting program in Florida. IP owns and operates the integrated bleached kraft paper mill in Cantonment, Escambia County, Florida. FOPB is a non-profit Alabama corporation3 established in 1988 whose members are interested in protecting the water quality and natural resources of Perdido Bay. FOPB has approximately 450 members. About 90 percent of the members own property adjacent to Perdido Bay. James Lane is the President of FOPB. Mellita A. Lane, Zachary P. Lane, Peter A. Lane, and Sarah M. Lane are the adult children of Dr. Jacqueline Lane and James Lane. Dr. Lane and James Lane live on property adjacent to Perdido Bay with their son Peter. The Adjacent Waters The mill's wastewater effluent is discharged into Elevenmile Creek, which is a tributary of Perdido Bay. The creek flows southwest into the northeastern portion of Perdido Bay. Elevenmile Creek is a freshwater stream for most of its length but is sometimes tidally affected one to two miles from its mouth. Elevenmile Creek is designated as a Class III water. Perdido Bay is approximately 28 square miles in area and is bordered by Escambia County on the east and Baldwin County, Alabama on the west. The dividing line between the states runs north and south in the approximate middle of Perdido Bay. U.S. Highway 90 crosses the Bay, going east and west, and forms the boundary between what is often referred to as the "Upper Bay" and "Lower Bay." The Bay is relatively shallow, especially in the Upper Bay, ranging in depth between five and ten feet. Perdido Bay is designated as a Class III water. Sometime around 1900, a manmade navigation channel was cut through the narrow strip of land separating Perdido Bay from the Gulf of Mexico. The channel, called Perdido Pass, allowed the salt waters of the Gulf to move with the tides up into Perdido Bay. Depending on tides and freshwater inflows, the tidal waters can move into the most northern portions of Perdido Bay and even further, into its tributaries and wetlands. The Perdido River flows into the northwest portion of Perdido Bay. It is primarily a freshwater river but it is sometimes tidally influenced at and near its mouth. The Perdido River was designated an Outstanding Florida Water (OFW) in 1979. At the north end of Perdido Bay, between Elevenmile Creek and the Perdido River, is a large tract of land owned by IP called the Rainwater Tract. The northern part of the tract is primarily freshwater wetlands. The southern part is a tidal marsh. Tee and Wicker Lakes are small (approximately 50 acres in total surface area) tidal ponds within the tidal marsh. Depending on the tides, the lakes can be as shallow as one foot, or several feet deep. A channel through the marsh allows boaters to gain access to Tee and Wicker Lakes from Perdido Bay. The Mill 1. Production Florida Pulp and Paper Company first began operating the Cantonment paper mill in 1941. St. Regis Paper Company (St. Regis) acquired the mill in 1946. In 1984, Champion International Corporation (Champion) acquired the mill. Champion changed the product mix in 1986 from unbleached packaging paper to bleached products such as printing and writing grades of paper. In 2001, Champion merged with IP, and IP took over operation of the mill. The primary product of the mill continues to be printing and writing paper. The mill is integrated, meaning that it brings in logs and wood chips, makes pulp, and produces paper. The wood is chemically treated in cookers called digesters to separate the cellulose from the lignin in the wood because only the cellulose is used to make paper. Then the "brown stock" from the digesters goes through the oxygen delignification process, is mixed with water, and is pumped to paper machines that make the paper products. There are two paper machines located at the mill. The larger paper machine, designated P5, produces approximately 1,000 tons per day of writing and printing paper. The smaller machine, P4, produces approximately 400 to 500 tons per day of "fluff pulp." 2. The Existing Wastewater Treatment Plant The existing wastewater treatment plant (WWTP) at the mill is described in the revised NPDES permit as a "multi-pond primary and secondary treatment system, consisting of a primary treatment system (primary settling basin, polymer addition, two solids/sludge dewatering basins, and a floating dredge), and secondary treatment system (four ponds in series; two aerated stabilization basins with approximately 2,200 horsepower (HP) of aeration capacity, a nutrient feed system, two non-aerated polishing ponds and a final riffle section to re-aerate the effluent)." The WWTP is a system for reducing the biological oxygen demand (BOD) of the mill's wastewater by bacteria. IP’s wastewater is nutrient deficient when it enters the WWTP. Nutrients in the form of phosphorus and nitrogen must be added for the growth of bacteria. The WWTP begins with a primary settling basin in which suspended solids settle to the bottom. The solids form a sludge that is pumped by hydraulic dredge into two dewatering basins. The dewatering basins are used alternately so that, as one pond is filled, water is removed from the other pond. After being dewatered, the sludge is removed and allowed to dry. Then, it is transported to a landfill located about five miles west of the mill on land owned by IP. The water removed from the dewatering basins moves into to the first aeration basin. The aeration basin has floating aerator devices that add oxygen to facilitate biological conversion of the wastewater. The wastewater then flows sequentially through three more basins where there is further oxygenation and settling of the biological solids. The discharge from the fourth settling basin flows through a riffle section where the effluent is aerated using a series of waterfalls. This is the last element of the treatment process from which the mill's effluent enters waters of the state. Chemicals are added during the treatment process to control phosphorus and color. Chemicals are also added to suppress foam. Sanitary wastewater from the mill, after pretreatment in an activated sludge treatment system, is "sewered" to the mill's WWTP and further treated in the same manner as the industrial wastewater. A separate detention pond collects and treats stormwater from onsite and offsite areas and discharges at the same point as the wastewater effluent from the WWTP. Stormwater that falls on the industrial area of the mill is processed through the WWTP. The discharge point from the WWTP, and the point at which the effluent is monitored for compliance with state effluent limitations, is designated D-001, but is also called the Parshall Flume. The effluent is discharged from the Parshall Flume through a pipe to an area of natural wetlands. After passing through the wetlands, the combined flow runs through a pipe that enters Elevenmile Creek from below the surface. This area is called the "boil" because the water can be observed to boil to the surface of Elevenmile Creek. From the boil, the mill effluent flows approximately 14 miles down (apparently misnamed) Elevenmile Creek to upper Perdido Bay. Regulatory History of the Mill Before 1995, the mill had to have both state and federal permits. The former Florida Department of Environmental Regulation (DER) issued St. Regis an industrial wastewater operating permit in 1982 pursuant to Chapter 403, Florida Statutes. The EPA issued St. Regis an NPDES permit in 1983 pursuant to the Clean Water Act. When it acquired the facility in 1984, Champion continued to operate the mill under these two permits. In 1986, Champion obtained a construction permit from DER to install the oxygen delignification technology and other improvements to its WWTP in conjunction with the conversion of the production process from an unbleached to a modified bleached kraft production process. In 1987, Champion applied to DER for an operating permit for its modified WWTP and also petitioned for a variance from the Class III water quality standards in Elevenmile Creek for iron, specific conductance, zinc, and transparency. DER's subsequent proposal to issue the operating permit and variance was formally challenged.4 In 1988, while the challenges to the DER permit and variance were still pending, Champion dropped its application for a regular operating permit and requested a temporary operating permit (TOP), instead. In December 1989, DER and Champion entered into Consent Order No. 87-1398 ("the 1989 Consent Order"). The 1989 Consent Order included an allegation by DER that the mill's wastewater discharge was causing violation of state water quality standards in Elevenmile Creek for dissolved oxygen (DO), un-ionized ammonia, and biological integrity. The 1989 Consent Order authorized the continued operation of the mill, but established a process for addressing the water quality problems in Elevenmile Creek and Perdido Bay and bringing the mill into compliance in the future. Champion was required to install equipment to increase the DO in its effluent within a year. Champion was also required to submit a plan of study and, 30 months after DER's approval of the plan of study, to submit a study report on the impacts of the mill's effluent on DO in Elevenmile Creek and Perdido Bay and recommended measures for reducing or eliminating adverse impacts. The study report was also supposed to address the other water quality violations caused by Champion. A comprehensive study of the Perdido Bay system was undertaken by a team of 24 scientists lead by Dr. Robert Livingston, an aquatic ecologist and professor at Florida State University. The initial three-year study by Dr. Livingston's team of scientists was followed by a series of related scientific studies, which will be referred to collectively in this Recommended Order as "the Livingston studies." The 1989 Consent Order had no expiration date, but it was tied to the TOP, which had an expiration date of December 1, 1994. Champion was to be in compliance with all applicable water quality standards by that date. The TOP established the following specific effluent discharge limitations for the mill: Monthly Average Maximum Biological Oxygen Demand (BOD) (Mar-Oct) 4,500 lbs/day 6,885 lbs/day (Nov-Feb) 5,100 lbs/day 6,885 lbs/day Total Suspended Solids (TSS) (Mar-Oct) 8,000 lbs/day 27,000 lbs/day (Nov-Feb) 11,600 lbs/day 27,000 lbs/day Iron 3.5 mg/l Specific Conductance 2,500 micromhos/cm Zinc .075 mg/l The limits stated above for iron, specific conductance, and zinc were derived from the variance granted to Champion. Champion was also granted variances from the water quality standards for biological integrity, un-ionized ammonia, and DO. The 1989 Consent Order, TOP, and variance were the subject of the Recommended Order and Final Order issued in Perdido Bay Environmental Association, Inc. v. Champion International Corporation, 89 ER FALR 153 (DER Nov. 14, 1989). Champion's deviation from the standards for iron, zinc, and specific conductance pursuant to the variance was determined to present no significant risk of adverse effect on the water quality and biota of Elevenmile Creek and Perdido Bay. The mill effluent's effect on transparency (reduced by color in the mill effluent) was considered a potentially significant problem. However, because it was found that there was no practicable means known or available to reduce the color, and there was insufficient information at that time to determine how Champion's discharge of color was affecting the biota, Champion was allowed to continue its discharge of color into Elevenmile Creek pending the results of the Livingston studies. In the administrative hearing, the petitioners argued that it was unreasonable to put off compliance for five years, but the hearing officer determined that five years was reasonable under the circumstances. One finding in the Recommended Order and a reason for recommending approval of the TOP and Consent Order was: After the studies referred to in the consent order, the Department will not allow Champion additional time to study problems further. Significant improvements will be required within the five year period and at the end of that period, the plant will be in compliance with all water quality standards or will be denied an operating permit, with related enforcement action. The requirement of the 1989 Consent Order that Champion be in compliance with all applicable standards by December 1994, was qualified with the words "unless otherwise agreed." In considering this wording, the hearing officer opined that any change in the compliance deadline "would require a new notice of proposed agency action and point of entry for parties who might wish to contest any modification in the operational requirements, or changes in terms of compliance with water quality standards." The mill was not in compliance with all water quality standards in December 1994. No enforcement action was taken by the Department and no modification of the 1989 Consent Order or TOP was formally proposed that would have provided a point of entry to any members of the public who might have objected. Instead, the Department agreed through correspondence with Champion to allow Champion to pursue additional water quality studies and to investigate alternatives to its discharge to Elevenmile Creek. In 1994 and 1995, Champion applied to renew its state and federal wastewater permits, which were about to expire. The Department and EPA notified Champion that its existing permits were administratively extended during the review of the new permit applications. Today, the Cantonment mill is still operating under the 1989 TOP which, due to the administrative extension, did not terminate in December 1994, as stated on its face. In November 1995, following EPA's delegation of NPDES permitting authority to the Department, the Department issued an order combining the state and federal operating permits into a single permit identified as Wastewater Permit Number FL0002526-002-IWF/MT. In summary, the permit requirements currently applicable to the operation of the Cantonment paper mill are contained in the following documents: January 3, 1983, EPA NPDES Permit December 13, 1989, DER Temporary Operating Permit (TOP) December 13, 1989, DER Consent Order December 12, 1989, DER Variance November 15, 1995, DEP Order (combining the NPDES permit and the State-issued wastewater permit) April 22, 1996, DEP Letter (clarifying November 15, 1995, Order regarding 1983 NPDES Permit) During the period from 1992 to 2001, more water quality studies were conducted and Champion investigated alternatives to discharging into upper Elevenmile Creek, including land application of the effluent and relocation of the discharge to lower Elevenmile Creek or the Escambia River. In 2001, IP and Champion merged and IP applied to the Department to have the mill permit and related authorizations transferred to IP. Dr. Lane formally challenged the proposed transfer, but she was determined to lack standing. One conclusion of law in the Recommended Order issued in the 2001 administrative case was that the mill was in compliance with the consent order, TOP, and variance. That conclusion was not based on a finding that Champion was in compliance with all applicable water quality standards, but that the deadline for compliance (December 1, 1994) had been extended indefinitely by the pending permit renewal application. In 2001, Dr. Lane twice petitioned the Department for a declaratory statement regarding the Department's interpretation of certain provisions of the 1989 Consent Order. The first petition was denied by the Department because Dr. Lane failed to adequately state her interests and because she was a party in a pending case in which the Consent Order was at issue. Dr. Lane second petition was denied for similar reasons. Over 14 years after the deadline established in the 1989 TOP for the mill to be in compliance with all applicable standards in Elevenmile Creek, IP is still not meeting all applicable standards. However, the combination of (1) Consent Order terms that contemplated unspecified future permit requirements based on yet-to-be-conducted studies, (2) the wording in the TOP that tied the deadline for compliance to the expiration of the TOP, and (3) the administrative extension of the TOP, kept the issue of Champion's and IP's compliance in a regulatory limbo. It increased the Department's discretion to determine whether IP was in compliance with the laws enacted to protect the State's natural resources, and reduced the opportunity of interested persons to formally disagree with that determination. The Proposed Authorizations A. In General In September 2002, while Champion's 1994 permit renewal application was still pending at DEP, IP submitted a revised permit renewal application to upgrade the WWTP and relocate its discharge. The WWTP upgrades consist of converting to a modified activated sludge treatment process, increasing aeration, constructing storm surge ponds, and adding a process for pH adjustment. The new WWTP would have an average daily effluent discharge of 23.8 million gallons per day (mgd). IP proposes to convey the treated effluent by pipeline 10.7 miles to a 1,464-acre wetland tract owned by IP5, where the effluent would be distributed over the wetlands as it flows to lower Elevenmile Creek and upper Perdido Bay. IP revised its permit application again in October 2005, to obtain authorization to reconfigure the mill to produce unbleached brown paper for various grades of boxes. If the mill is reconfigured, only softwood (pine) would be used in the new process. On April 12, 2005, the Department issued a Notice of Intent to Issue the proposed NPDES permit, together with Consent Order No. 04-1202, Authorization for Experimental Use of Wetlands Order No. 04-4442, and Waiver Order No. 04-0730. An exemption from water quality criteria in conjunction with the experimental use of wetlands for wastewater treatment is provided for in Florida Administrative Code Rule 62-660.300(1). The proposed exemption order would exempt IP from Class III water quality criteria for pH, DO, transparency, turbidity, and specific conductance. The proposed waiver order is associated with the experimental use of wetlands exemption and relieves IP of the necessity to comply with two exemption criteria related to restricting public access to the area covered by the exemption. The Department and IP contend that restricting public access to Tee and Wicker Lakes is unnecessary. The proposed Consent Order is an enforcement document that is necessary if the mill is to be allowed to operate despite the fact that its wastewater discharge is causing violations of water quality standards. A principal purpose of the proposed Consent Order is to impose a time schedule for the completion of corrective actions and compliance with all state standards. The proposed Consent Order would supersede the 1989 Consent Order. The Proposed NPDES Permit 1. WWTP Upgrades IP's primary objective in upgrading the WWTP was to reduce the nitrogen and phosphorus in the mill's effluent discharge. The upgrades are designed to reduce un-ionized ammonia, total soluble nitrogen, and phosphorus. They are also expected to achieve a modest reduction of BOD and TSS. Upgraded pond 1 is expected to convert soluble BOD to suspended solids and to accomplish other biological conversions seven or eight times faster than the current pond 1. The modification of pond 3 to an activated sludge system is expected to more rapidly remove and recycle the solids back into pond 1. Pond 3 will have a much larger bacterial population to treat the effluent. There would also be additional pH control at the end of pond 3. IP would continue to use its Rock Crossing Landfill for disposal of wastewater sludge removed from the WWTP. Authorization for the landfill is part of the proposed NPDES permit. Groundwater monitoring beneath the landfill is required. The WWTP upgrades would include increased storm surge capacity by converting two existing aeration and settling basins (ponds 2 and 4) to storm surge basins. The surge basins would allow the mill to manage upsets and to withstand a 25-year, 24-hour storm event of 11 inches of rain. Rainfall that falls into the production areas would flow to the WWTP, and be impounded in ponds 2 and 4. After the storm event this impounded water would flow back through the WWTP where it would be treated before flowing through the compliance point and into the pipeline to the wetland tract. The Department required IP to monitor for over 129 pollutants in its stormwater runoff from the mill’s manufacturing facility, roads, parking lots, and offsite nonpoint sources. No pollutants were found in the stormwater at levels of concern. The average volume of mill discharge would be mgd. IP plans to obtain up to 5 mgd of treated municipal wastewater from a new treatment facility planned by the Emerald Coast Utility Authority (ECUA), which would be used in the paper production process and would reduce the need for groundwater withdrawals by IP for this purpose. The treated wastewater would enter the WWTP along with other process wastewater, be treated in the same manner in the WWTP, and become part of the effluent conveyed through the pipeline to the wetland tract. 2. Effluent Limitations The effluent limitations required by the proposed permit include technology-based effluent limits (TBELs) that apply to the entire pulp and paper industry. TBELs are predominantly production-based and are designed to limit the amount of pollutants that may be discharged per ton of product produced. The Cantonment mill has not had a problem in meeting TBELs. The TBELs that IP must meet are in the "Cluster Rule" promulgated by the EPA and adopted by the Department. The mill already meets the TBELS applicable to its current bleaching operation. In fact, EPA determined that the mill was performing in the top 5 percent of similar mills in the nation. The mill would have to meet the TBELs for a brown kraft operation if that conversion is made by IP. The proposed permit also imposes water quality- based effluent limits (WQBELs) that are specific to the Cantonment mill and the waters affected by its effluent discharge. The WQBELs for the mill are necessary for certain constituents of the mill's effluent because the TBELs, alone, would not be sufficient to prevent water quality criteria in the receiving waters from being violated. For example, the TBEL for BOD for similar pulp and paper mills is 15,943 pounds per day (ppd) on a monthly average, but the WQBEL for BOD for the Cantonment mill would be 4,500 ppd in summer and 5,100 ppd in winter. Dr. Livingston developed an extensive biological and chemical history of Perdido Bay and then evaluated the nutrient loadings from Elevenmile Creek over a 12-year period to correlate mill loadings with the biological health of the Bay. Because Dr. Livingston determined that the nutrient loadings from the mill that occurred in 1988 and 1989 did not adversely impact the food web of Perdido Bay, he recommended effluent limits for ammonia nitrogen, orthophosphate, and total phosphorous that were correlated with mill loadings of these nutrients in those years. The Department used Dr. Livingston’s data, and did its own analyses, to establish WQBELs for orthophosphate for drought conditions and for nitrate-nitrite. WQBELs were ultimately developed for total ammonia, orthophosphate, nitrate-nitrite, total phosphorus, BOD, color, and soluble inorganic nitrogen. The WQBELs in the proposed permit were developed to assure compliance with water quality standards under conditions of pollutant loadings at the daily limit (based on a monthly average) during low flow in the receiving waters. The proposed permit also establishes daily maximum limits (the most that can be discharged on any single day). For BOD, the daily maximum limit is 9,000 ppd. William Evans, the Department employee with primary responsibility for the technical review of the proposed Department authorizations, said that setting the daily maximum limit at twice the monthly average was a standard practice of the Department. The maximum daily limits are not derived from the Livingston studies. Dr. Glen Daigger, a civil and environmental engineer, designed a model for the WWTP and determined the modifications necessary to enable the WWTP's discharge to meet all TBELs and WQBELs. Petitioners did not dispute that the proposed WWTP is capable of achieving the TBELs and WQBELs. Their main complaint is that the WQBELs are not adequate to protect the receiving waters. 3. Discharge to the Wetland Tract IP proposes to relocate its discharge to the wetland tract as a means to end decades of failure by the mill to meet water quality standards in Elevenmile Creek. Discharging to the wetland tract, which flows to the marine waters of lower Elevenmile Creek and Perdido Bay, avoids many of the problems associated with trying to meet the more stringent water quality standards applicable in a freshwater stream. An effluent distribution system is proposed for the wetland tract to spread the effluent out over the full width of the wetlands so that their full assimilative capacity is utilized. This would be accomplished by a system of berms running perpendicular to the flow of water through the wetlands, and gates and other structures in and along the berms to gather and redistribute the flow as it moves in a southerly direction toward Perdido Bay and lower Elevenmile Creek. The design incorporates four existing tram roads that were constructed on the wetland tract to serve the past and present silviculture activities there. The tram roads, with modifications, would serve as the berms in the wetland distribution system. As the effluent is discharged from the pipeline, a point designated D-003, it would be re-aerated6 and distributed across Berm 1 through a series of adjustable, gated openings. Mixing with naturally occurring waters, the effluent would move by gravity to the next lower berm. The water will re-collect behind each of the vegetated berms and be distributed again through each berm. The distance between the berms varies from a quarter to a half mile. Approximately 70 percent of the effluent discharged at D-003 would flow by gravity a distance of approximately 2.3 miles to Perdido Bay. The remaining 30 percent of the effluent would flow a shorter distance to lower Elevenmile Creek. A computer simulation performed by Dr. Wade Nutter, an expert in hydrology, soils, and forested wetlands, indicated that the effluent discharged at D-003 will move through the wetland tract at a velocity of approximately a quarter-of-a-foot per second and the depth of flow across the wetland tract will be about one-half inch. It would take four or five days for the effluent to reach lower Elevenmile Creek and Perdido Bay. As the treated effluent flows through the wetland tract, there will be some removal of nutrients by plants and soil. Nitrogen and phosphorous are expected to be reduced approximately ten percent. BOD in the effluent is expected to be reduced approximately 90 percent. Construction activities associated with the effluent pipeline and berm modifications in the wetland tract were permitted by the Department in 2003 through issuance of a Wetland Resource Permit to IP. The United States Army Corps of Engineers has also permitted this work. No person filed a petition to challenge those permits. A wetland monitoring program is required by the proposed permit. The stated purpose of the monitoring program is to assure that there are no significant adverse impacts to the wetland tract, including Tee and Wicker Lakes, and is referred to as the No Significant Adverse Impact (NSAI) analysis. A year of "baseline data" on the wetlands and Tee and Wicker Lakes was collected and submitted to the Department for use in developing the NSAI analysis, but was not made a part of the record in this case. After the discharge to the wetland tract commences, the proposed permit requires IP to submit wetland monitoring reports annually to the Department. A monitoring program was also developed by Dr. Livingston and other IP consultants to monitor the impacts of the proposed discharge on Elevenmile Creek and Perdido Bay. It was made a part of the proposed permit. The Exemption for Experimental Use of Wetlands Florida Administrative Code Rule 62-660.300(1) provides an exemption from water quality criteria for the experimental use of wetlands. The proposed Authorization for Experimental Use of Wetlands Order would exempt IP from Class III water quality criteria for pH, DO, transparency, turbidity, and specific conductance. The proposed exemption order sets forth "interim limits" for pH, DO, color, turbidity, and specific conductance. The proposed exemption order also states that IP may petition for alternative water quality criteria pursuant to Florida Administrative Code Rule 62- 66D.300(1)(b)(c) and (d). The exemption is for 5 years beginning with the commencement of discharge into the wetland tract at D-003. The exemption it can be renewed by IP by application to the Department. The Waiver To qualify for the experimental use of wetlands exemption, Florida Administrative Code Rules 62- 660.300(1)(a)3 and 4 require, respectively, that the public be restricted from the exempted wetland area and that the waters not be used for recreation. IP proposes to prevent public access to the area of the wetland tract where the effluent distribution system is located. This is the freshwater area of the wetland tract and includes the four berms. However, IP does not want, nor believe it is necessary, to prevent public access and recreation on Tee and Wicker Lakes within the tidal marsh below berm 4. These lakes are accessible by boat from Perdido Bay and are used now by the public for boating and fishing. The Proposed Consent Order The proposed Consent Order establishes a schedule for the construction activities associated with the proposed WWTP upgrades and the effluent pipeline and for incremental relocation of the mill's discharge form Elevenmile Creek to the wetland tract. IP is given 24 months to complete construction activities and begin operation of the new facilities. At least 25 percent of the mill's effluent must be diverted to the wetland tract. At least 25 percent of the effluent is to be diverted to the wetland tract when the new facilities begin operations. The volume of effluent diverted to the wetlands is to increase another 25 percent every three months thereafter so that three years after issuance of the permit 100 percent of the effluent is being discharged into the wetland tract and there is no longer a discharge at D-001 into Elevenmile Creek.7 The proposed Consent Order establishes interim effluent limitations that would apply immediately upon the effective date of the Consent Order and continue during the 24-month construction period when the mill will continue to discharge into Elevenmile Creek. Other interim effluent limits would apply during the 12-month period following construction when the upgraded WWTP would be operating and the effluent would be incrementally diverted from Elevenmile Creek to the wetland tract. A third set of interim effluent limits would apply at D-003 when 100 percent of the discharge is into the wetland tract. They include the interim limits for specific conductance, pH, DO, color, and turbidity established through the experimental use of wetland exemption. The proposed Consent Order requires IP to submit a report within six months with the results of the 2004 transparency study. The Department must be satisfied that the study shows the transparency standard will not be violated before the wetlands can be used for the discharge. This report has already been submitted to the Department, but the Department has not yet completed its review of the report. Nevertheless, it was admitted into the record as IP Exhibit 79. The proposed Consent Order provides that, in the event IP's does not receive treated sanitary wastewater from the planned ECUA facility, IP will notify the Department and submit an alternate compliance plan to the Department for the Department's approval. The submittal and approval of an alternate compliance plan would extend the time for compliance with water quality standards by another six months. The Department amended the proposed Consent Order at the conclusion of the hearing to provide for notice to the public and an opportunity for persons to object to the Department's action on any alternate compliance plan. The Consent Order requires a "Plan of Action" to determine "whether there remains a critical period for ortho-phosphate loading to lower Elevenmile Creek and Perdido Bay." The proposed Consent Order requires IP to submit within 97 months (which would allow for five years of discharge to the wetland tract) a final report on whether there has been significant adverse impacts in the wetlands and Tee and Wicker Lakes resulting from the discharge of effluent pursuant to the interim limits for pH, DO, specific conductance, turbidity, and color. If the NSAI analysis shows no significant adverse impact has occurred, the proposed Consent Order contemplates that IP or the Department would establish alternative water quality criteria that would apply permanently in the wetland tract. IP is required by the Consent Order to submit quarterly progress reports of its progress toward compliance with the required corrective actions and deadlines. The Consent Order imposes a "stipulated penalty" of $500 per day for noncompliance with its terms. It also contains a statement that a violation of its terms may subject IP to civil penalties up to $10,000 per day. The Principal Factual Disputes A. The Evidence in General Much of the water quality and biological data presented by Petitioners were limited in terms of the numbers of samples taken, the extent of the area sampled, and the time period covered by the sampling. Much of the expert testimony presented by Petitioners was based on limited data, few field investigations, and the review of some, but not all relevant permit documents.8 On the other hand, the Livingston studies represent perhaps the most complete scientific evaluation ever made of a coastal ecosystem. Even Dr. Lane called the Livingston studies "huge" and "amazing." Therefore, with regard to the factual issues raised by Petitioners that involved scientific subjects investigated in the Livingston studies, Petitioners' data and the expert opinions based on those data were generally of much less weight than the data and conclusions of the Livingston studies. However, the Livingston studies did not address all of the factual issues in dispute. Some of the evidence presented by Petitioners regarding historical water quality conditions in Perdido Bay and Elevenmile Creek was lay testimony. The lay testimony was competent and sufficient to prove the existence of environmental conditions that are detectable to the human senses, such as an offensive smell, a dark color, or a sticky texture. Historical Changes in Perdido Bay Petitioners claim that, before the Cantonment mill began operations in the 1940s, Perdido Bay was a rich and diverse ecosystem and a beautiful place for swimming, fishing, boating, and other recreational activities. Petitioners blame the mill effluent for all the adverse changes they say have occurred in Perdido Bay. Petitioners claim that the water in Perdido Bay was much clearer before the mill was built. James Lane, who has lived on the Bay for 65 years, said he began to notice in the late 1940s that the water was becoming dark and filled with wood fibers. Mr. Lane recalls that there used to be an abundance of fish in the Perdido Bay, including croakers, pinfish, flounder, redfish, minnows, and catfish. Now Mr. Lane sees few of these fish in the Bay and he believes the remaining fish are unfit to eat because they look diseased to him. Mr. Lane said there were extensive areas of sea grasses in the Bay which supported large numbers of shrimp, crabs, and mussels, but these grasses are now gone. The Lane family used to enjoy swimming in Perdido Bay but stopped swimming years ago because the water felt sticky and often had a brown foam or scum on the surface. Mr. Lane and others members of FOPB claim to have gotten infections from swimming in the Bay. Mr. Lane and other witnesses described the odor of Elevenmile Creek near the mill as unpleasant and, at times, offensive. They consider the Creek to be too polluted for swimming. Donald Ray, who has been a Department biologist for 30 years, said he has received many complaints from citizens about the conditions in Perdido Bay. He said the foam that occurs in Perdido Bay is not natural foam, but one that persists and leaves a stain on boats. On the other hand, it is Dr. Livingston's opinion that the ecological problems of Perdido Bay are due primarily to the opening of Perdido Pass around 1900. The opening of the pass allowed Gulf waters to enter Perdido Bay and caused salinity stratification in the Bay, with marine waters on the bottom and fresh water from the Perdido River, Elevenmile Creek, and other tributaries on the top. The stratification occurs regularly in the lower Bay, but only during low flow conditions in most of the upper Bay, Perdido River, and Elevenmile Creek. It restricts DO exchange between the upper and lower water layers and results in low DO levels in the lower layer. Low DO, or "hypoxia," is the primary cause of reduced biological diversity and productivity in Perdido Bay. Dr. Livingston's initial study of the Perdido Bay system (1988-91) included an investigation of historical conditions, using documents and maps, anecdotal statements of area residents, as well as historic water quality and sediment data. Dr. Livingston found general agreement from most sources that: [P]rior to the 1940s, the various rivers and the bay in the Perdido Basin were quite different from what they are today. Eyewitness accounts from 1924 indicate a bay that was clear and "bluish" in color; the bottom could be seen at depths of five feet. According to resident' accounts, seagrasses grew from Garth Point to Witchwood; the grassbeds provided cover for many shrimp that were taken at the time. Flounder were taken with gigs and crabs were taken with hand nets. According to these accounts, the water from the various rivers and creeks in the area was relatively clear, and white sand/gravel bottoms were dominant forms of habitat in the freshwater and estuarine systems. The water was tea- colored but clear. Redfish, trout, blue crabs, shrimp, and mullet were abundant. * * * [T]hrough the early 1900s, the Elevenmile Creek was said to be crystal clear with soft white sand and good fishing. * * * According to various reports, in the early 1950s, the waters of Elevenmile Creek turned black, with concentrations of foam observed floating on the surface. By 1986, more than 28 million gallons of largely untreated effluent was flowing into the Elevenmile Creek- Perdido Bay system each day. Experiments by the Florida Game and Fresh Water Fish Commission had shown that the creek waters were lethal. The Florida Board of Health reported that Elevenmile Creek was "grossly polluted" and that Perdido Bay had been "greatly degraded within the 1.5 mile radius of where Elevenmile Creek dumped into the bay." Nevertheless, Dr. Livingston discounted much of this historical record, especially with regard to the belief that the mill's effluent had adversely affected Perdido Bay, because it was not based on what he considers reliable scientific data. He found "little evidence in the long- term sediment record of a direct response to historical activities of the pulp and paper mill, suggesting that the flushing capacity of Perdido Bay quickly diluted effluents that enter Perdido Bay from Elevenmile Creek." The evidence is persuasive that the salinity stratification in Perdido Bay is a major cause of low DO in the Bay.9 However, the stratification does not explain all of the observed changes in water quality, biological productivity, and recreational values. The stratification does not account for the markedly better conditions in the Bay that existed before the Cantonment paper mill began operations. The Livingston studies confirmed that when nutrient loadings from the mill were high, they caused toxic algae blooms and reduced biological productivity in Perdido Bay. As recently as 2005, there were major toxic blooms of heterosigma in Tee and Wicker Lakes caused by increased nutrient loading from the mill. Other competent evidence showed that the mill's effluent has created nuisance conditions in the past, such as foam and scum, which adversely affected the recreational values of these public waters. Some of the adverse effects attributable to the mill effluent were most acute in the area of the Bay near the Lanes' home on the northeastern shore of the Bay, because the flow from the Perdido River tends to push the flow from Elevenmile Creek toward the northeastern shore. Petitioners were justified in feeling frustrated in having their concerns about the adverse impacts of the mill's effluent discounted for many years, and in having to wait so long for an effective regulatory response. However, with regard to many of their factual disputes, Petitioners' evidence lacked sufficient detail regarding the dates of observations, the locations of observations, and in other respects, to distinguish the relative contribution of the mill effluent from other factors that contributed to the adverse impacts in the Bay, such as salinity stratification, natural nutrient loading from the Perdido River and other tributaries, and anthropogenic sources of pollution other than the paper mill.10 Petitioners generally referred to the mill effluent and its impacts to Perdido Bay as if they have been relatively constant for 65 years. The Livingston studies, however, showed clearly that the mill effluent and its impacts, as well as important factors affecting the impacts, such as drought, have frequently changed. Focusing on the fact that the average daily BOD loading allowed under the proposed permit would be same as under the 1989 TOP (4,500 ppd), Petitioners remarked several times at the final hearing that the proposed permit for the mill was no different than the existing permit. According to Petitioners, if the mill is allowed to operate under the proposed permit, one can predict that the future adverse impacts to Perdido Bay will be the same as the past adverse impacts. However, the 1989 TOP and the proposed permit are very different. Therefore, it cannot be assumed that the impacts would be the same. Petitioners' evidence was generally insufficient to correlate past adverse impacts to Perdido Bay with the likely impacts that would occur under the proposed permit. In contrast, that was the focus of the Livingston studies. Development of the WQBELs Whether Perdido Bay is an Alluvial System and Whether Elevenmile Creek is a Blackwater Stream Alluvial systems are generally characterized by relatively high nutrient inputs from tributaries and associated wetlands that provide for high biological productivity in the receiving bay or estuary. Petitioners disagree with Dr. Livingston's characterization of the Perdido Bay system as an alluvial system. Petitioners presented the testimony of Donald Ray, a Department biologist, who said that the Perdido River is not an alluvial river and the natural nutrient loadings to Perdido Bay are less than would occur in an alluvial system. Although it is curious that two experienced biologists cannot agree on whether Perdido Bay is part of an alluvial system, the dispute is immaterial because it was not shown by Petitioners that any of the four proposed Department authorizations is dependent on the applicability of the term "alluvial." The WQBELs developed by Dr. Livingston, for example, were not dependent on a determination that Perdido Bay meets some definition of an alluvial system, but were based on what the data indicated about actual nutrient loadings into Perdido Bay and the Bay's ecological responses to the loadings. If the dispute is not immaterial, then Dr. Livingston's opinion that Perdido Bay is part of an alluvial system is more persuasive, because he has greater experience and knowledge of the coastal bay systems on the Florida Panhandle than does Mr. Ray. Petitioners also take exception to Dr. Livingston's characterization of Elevenmile Creek as a blackwater creek. Petitioners claim Elevenmile Creek is naturally clear to "slightly tannic" stream. This dispute, however, is also immaterial because the proposed permit calls for the termination of the mill's discharge to Elevenmile Creek, including its contribution of color to the Creek. Petitioners assert that Dr. Livingston's characterizations of Perdido Bay as an alluvial system and Elevenmile Creek as a blackwater creek show he is biased and that his "overall analysis" lacks credibility. Dr. Livingston's opinions on these points do not show bias nor compromise the credibility of his overall analysis of the Perdido Bay system, which is actually the product of many scientists and based on 18 years of data.11 2. Selection of 1988 and 1989 Mill Loadings as a Benchmark for the WQBELs Generally, the Department establishes effluents limits for nutrients based on Chlorophyl A analysis. However, the Livingston studies showed that Chlorophyl A was not significantly associated with plankton blooms in Perdido Bay. Therefore, the Department accepted Dr. Livingston's recommendation to base the WQBELs for nutrients on the nutrient loading from the mill in 1988 and 1989, which the Livingston studies showed were good years for Perdido Bay with respect to its biological health. Phytoplankton are a fundamental component of the food web in Perdido Bay. The number of phytoplankton species is a sensitive indicator of the overall ecological health of the Bay. The Livingston studies showed that the loadings of ammonia and orthophosphate from the mill had a direct effect on the number of phytoplankton species. In the years when the mill discharged high loadings of ammonia and orthophosphate, there were toxic algae blooms and reduced numbers of phytoplankton species. In 1988 and 1989, when the loadings of ammonia and orthophosphate were lower, there were no toxic algae blooms, and there were relatively high numbers of phytoplankton species. Petitioners dispute that 1988 and 1989 are appropriate benchmarks years for developing the WQBELs because Petitioners claim there were high nutrient loadings and algae blooms in those years. Mr. Ray testified that the Department received citizen complaints about algae blooms in those years. Dr. Livingston's analysis was more persuasive, however, because it distinguished types of algae blooms according to their harmful effect on the food web and was based on considerably more water quality and biological data. Petitioners also presented water quality data collected from 1971 to 1994 by the Bream Fishermen Association at one sampling station in the northeastern part of Perdido Bay, which indicate that in 1988 and 1989, the concentrations of nutrients were sometimes high. The proposed nutrient WQBELs were derived from data about the actual response of the Perdido Bay ecosystem over time to various inputs. The sampling data from the Bream Fishermen Association were not correlated to ecosystem response and, therefore, are insufficient to refute Dr. Livingston's evidence that 1988 and 1989 were years of relatively high diversity and productivity in Perdido Bay. Furthermore, nutrients loadings would be reduced under the proposed permit. 3. DO and Sediment Oxygen Demand The parties agreed that sediment oxygen demand (SOD) is a major reason for the low DO in Perdido Bay in areas where there is salinity stratification. SOD is caused by the bacterial degradation of particulate organic matter that settles to the bottom. SOD decreases DO in the lower water layer, but also can cause a reduction of DO in the surface layer. Low DO has substantially reduced the biological productivity of Perdido Bay. Thomas Gallagher, an environmental engineer and water quality modeling expert, showed that even without the mill discharge, DO in the bottom waters of Perdido Bay would fall below the applicable Class III water quality standard of 5 mg/l. Low DO conditions are now a "natural" characteristic of the Bay, usually occurring during summer and early fall when freshwater flows are low and temperatures are high. At these times, surface water DO levels are usually above the state standard, but DO in the bottom waters usually range between 1.0 and 2.0 mg/l. Petitioners claim that the dominant source of the sediment in Perdido Bay is the carbon and nutrient loading in the mill's effluent that flows into the Bay from Elevenmile Creek. Mr. Ray, who sampled sediments in Perdido Bay over several years for the Department, believes that the mill effluent is the main source of the sediment and, consequently, the sediment oxygen demand. Dr. Livingston did extensive sediment analyses in Perdido Bay. He compared the data with sediment data from other bays on the Florida Panhandle. It is Dr. Livingston's opinion that the mill effluent contributes little to the sediments or SOD in Perdidio Bay. His initial three-year study concluded: [T]he hypoxic conditions of Elevenmile Creek are due, in part, to mill discharges. However, low dissolved oxygen conditions at depth in Perdido Bay are not due to the release of mill effluents from Elevenmile Creek, and can actually be attributed to a long history of human activities that include alteration of the hydrological interactions at the gulfward end of the estuary. The entry of saline water from the Gulf and the resulting stratification have been coupled with various forms of human development that release carbon, nitrogen, and phosphorus compounds into the estuary. The landward movement of high-salinity water from the Gulf of Mexico, laden with various types of oxygen-consuming compounds from various sources, together with oxygen demand from sediments to the lower water column that is isolated from reaeration due to salinity stratification, are thus responsible for a large portion of the observed hypoxic conditions at depth in Perdido Bay. [The paper mill] is responsible for a relatively small amount of these oxygen-consuming effects. In East Bay, which is a part of Escambia Bay and a relatively pristine system, there was SOD that caused DO to fall below standards in the lower water layer. Dr. Livingston also found severe oxygen deprivation at times in the lower waters of the Styx River and Perdido River, which do not receive mill effluent. Dr. Livingston believes the low DO that occasionally occurs in these rivers is due to agricultural runoff, urban discharges, and natural organic loading from adjacent wetlands. There was extensive evidence, some of which was presented by Petitioners, showing that the mill loadings of carbon and nutrients are less than the loadings from the Perdido River. Mr. Gallagher concluded that the sediment in the Bay is mostly "terrestrial carbon," and not from the mill's effluent. His water quality modeling work determined that the mill's effluent reduced bottom layer DO by about 0.1 mg/l. Dr. Lane believes that the organic solids in the mill's effluent are accumulating in Perdido Bay sediments, but Mr. Gallagher pointed out that degrading solids cannot accumulate because they are degrading. In addition, Mr. Gallagher said that logic dictates that solids that have not settled out after spending several days in the settling basins of IP's WWTP are not going to readily settle in the more turbulent environment of Perdido Bay. Some of the solids are oxidizing or being transported into the Gulf. Mr. Gallagher determined that in summer and late fall, 60 percent of the water in the bottom layer in the upper Bay is from the Gulf and almost all the rest is from the Perdido River. He believes only 0.1 to 2.0 percent of the water in the bottom layer is mill effluent. Dr. Livingston responded to the BOD and carbon issues that "these Petitioners raised over the years" by investigating them as part of the Livingston studies. He found no relationship between loading and DO. Dr. Livingston concluded that the mill was not having much effect on SOD. Dr. Livingston and Mr. Gallagher referred to a carbon isotope study of the sediment in Perdido Bay by Coffin and Cifuentes. The isotope study was a part of the initial three-year Livingston study entitled "Ecological Study of the Perdido Bay Drainage System." The study identified a unique carbon isotope in the mill's effluent and looked for traces of the isotope in the sediments of Perdido Bay. Very little of the carbon isotope was found in the sediments, suggesting that the mill's effluent was not contributing much to the sediments. The carbon isotope study was not offered into evidence. Petitioners assert that the isotope study is hearsay and cannot be used to support a finding of fact.12 However, Dr. Livingston's opinion about the sources of the sediment was not based solely on the isotope study. The isotope study was consistent with his other studies and with Mr. Gallagher's water quality modeling analysis. Therefore, the conclusions of the isotope study serve to support and explain Dr. Livingston's expert opinion that the mill effluent is not the primary source of the sediment and low DO in Perdido Bay. Dr. Livingston summarized his opinion regarding DO and SOD as follows: "all of these lines of evidence, from all the bays that I have worked in and from them scientific literature and from our own studies, every line of evidence simply eliminated the pulp mill as the primary source of the low dissolved oxygen in the bay." 4. Long-term BOD BOD is a measurement of the oxygen demand exerted by the oxidation of carbon, nitrogen, and the respiration of algae. A five-day BOD analysis is the standard test used in the regulatory process. The use of the standard five-day BOD measurement is not restricted to organic material that is expected to completely degrade in five days. Five days is simply the time period selected to standardize the measurement. For example, the five-day BOD analysis is used in the regulation of domestic wastewater even though most of the organic material in domestic wastewater takes about 60 days to degrade and would exert an oxygen demand throughout the 60 days. It was undisputed that paper mill effluent will continue to consume DO after five days. One estimate given was that it would take 100 days to completely degrade. Some of the naturally occurring organic material flowing into Perdido Bay from the Perdido River and Gulf of Mexico would also include material with long-term BOD. Petitioners claim that long-term BOD analysis is essential to determine the true impacts of the mill's effluent on Perdido Bay, but they failed to show that the Livingston studies did not consider long-term BOD.13 The evidence shows that Dr. Livingston's studies accounted for DO demand in all its forms and for any duration. Dr. Livingston's studies focused on the response of Perdido Bay's food web to nutrients and various other inputs as they changed over time. If long-term BOD was having an adverse effect on the food web, the Livingston studies were designed to detect that effect. Dr. Livingston's opinion is that long-term BOD is not a significant problem for Perdido Bay because the Bay is part of a dynamic system and the sediments are regularly flushed out or otherwise recycled in a matter of a few months, not years.14 5. Carbon Dr. Lane, who is a marine biologist, believes a major reason for low DO in Perdido Bay is "organic carbonaceous BOD." However, Dr. Lane presented no evidence other than statements of the theoretical process by which carbon from the mill would cause low DO in the Bay. She presented no scientific data from Perdido Bay to prove her theory.14 Dr. Livingston said that 16 years of studies in the Bay have found DO and carbon to be "totally uncorrelated." Other Water Quality Issues 1. Toxicity Petitioners allege that the mill effluent has had occasional problems passing toxicity tests. Un-ionized ammonia is the likely cause, and the reduction of un-ionized ammonia in the proposed permit and the distribution of the effluent over the wetland tract should prevent toxicity problems from recurring. Dr. Livingston examined tissue samples from various fish and invertebrates and found low levels of bioconcentrating chlorine compounds in Perdido Bay that he believes were "probably associated with discharges from the Pensacola mill." Although they are toxic substances, Dr. Livingston found no diseased organisms and no evidence of food web magnification of these potentially bioaccumulable compounds. Mr. Ray testified that Perdido Bay was the worst of all the bays he has studied in terms of high sediment metals. Most of his sediment sampling was done in 1977 through 1983, years before the Livingston studies got started. His knowledge about subsequent years was based on only two samples, one in 1988 and another in 2005.16 Dr. Lane did an analysis of 12 sediment samples in Perdido Bay, Perdido River, and Elevenmile Creek in 1999 and concluded that "Eleven Mile Creek appears to be the source of all elevated levels [of metals] except silver." The Livingston studies included toxics analysis of Perdido Bay sediments, including metals, dioxin, and other chlorinated organic compounds. Dr. Livingston testified that metal concentrations in the sediments of Elevenmile Creek did not differ from the metal concentrations in the Perdido River and other streams in the area. The concentrations were not significantly different from concentrations in other bays he has studied that do not have a paper mill discharge. 2. Mutagenic Compounds Petitioners claim that there are chemicals in paper mill effluent that are mutagenic and are causing changes in the sex of fish. They introduced an exhibit from the Department's exhibit list (DEP Exhibit 38) that discussed investigations of effluent from the Cantonment mill and other Florida paper mills which found abnormally high testosterone levels and related mutations in female Gambusia fish. The most recent such study16 implicates androgens produced by the microbial degradation of natural chemicals in the trees pulped at the mills, especially softwood trees (pines), as the cause. Petitioners believe IP's proposal to begin using 100 percent pine at the Cantonment mill could cause mutations in fish and other animals exposed to the mill's effluent. Although IP and the Department are aware of the sex change studies, there was no evidence presented that the subject was investigated or addressed by them in the permitting process. DEP Exhibit 38 is hearsay and no non-hearsay evidence was presented on the issue of mutagenic compounds in the mill's effluent. Therefore, no finding of fact in this Recommended Order can be based on the data and analysis in DEP Exhibit 38.18 Furthermore, Petitioners did not raise the issue of mutagenic compounds in the mill's effluent discharge in their petitions for hearing or in the pre-hearing stipulation.19 Antidegradation Policy Petitioners claimed the proposed permit violated the antidegradation policy for surface waters established in Florida Administrative Code Rule 62-302.300(1). An element of that policy is to require, for any discharge that degrades water quality, a demonstration that the degradation is necessary or desirable under circumstances which are clearly in the public interest. Florida Administrative Code Rule 62-4.242(1)(a) contains a list of factors to be considered and balanced in applying the antidegradation policy. These include consideration of whether the proposed project would be beneficial to public health, safety, or welfare and whether the discharge would adversely affect the, conservation of fish and wildlife, and recreational values. The greater weight of the evidence supports the position of IP and the Department that the proposed discharge to the wetland tract would be an improvement over the existing circumstances. However, as discussed below, there was an insufficient demonstration that the discharge would not cause significant adverse impact to the biological community within the wetland tract, and there was an insufficient demonstration that the Perdido River OFW would not be significantly degraded. Without sufficient demonstrations on these points, it is impossible to find that the degradation has been minimized. Petitioners did not prove that the proposed project was not in the public interest, but the burden was on IP to show the opposite. Because IP did not make a sufficient demonstration regarding potential adverse impacts on the biological community within the wetland tract and on the Perdido River OFW, IP failed to prove compliance with Florida's antidegradation policy. Perdido River OFW Florida Administrative Code Rule 62-302.300(2) contains the standards applicable to OFWs and prohibits a discharge that significantly degrades an OFW unless the proposed discharge is clearly in the public interest or the existing ambient water quality of the OFW would not be lowered.20 Petitioners contend that the water quality of the Perdido River would be significantly degraded by the mill's effluent under the authorizations. Mr. Gallagher's modeling analysis predicted improved water quality in the Perdido River for DO and several other criteria over the conditions that existed in 1979, the year the river was designated as an OFW. However, the modeling also predicted that the discharge would reduce the DO in the river (as it existed in 1979) by .01 mg/l under unusual conditions of effluent loading at the daily limit (based on a monthly average) during a drought. Mr. Gallagher's modeling indicated that a very small (less than 0.1 mg/l) reduction in DO in the surface water of the lower Perdido River would occur as a result of the proposed project. He considered that to be an "insignificant" effect and it was within the model's range of error. However, IP made the wrong comparisons in its modeling analysis to determine compliance with the OFW rule, Florida Administrative Code Rule 62-4.242(2). Mr. Gallagher used the model to compare the DO levels in the Perdido River that would result from the mill's discharge of BOD at the proposed permit limit of 4,500 ppd with the predicted DO levels that would have existed in 1979 if St. Regis was discharging 5,100 ppd of BOD. IP should have compared the DO levels resulting from the proposed permit with the actual DO levels in 1979, or at least the DO levels that the model would have simulated using actual BOD loadings by St. Regis in 1979. The DO levels that would have existed in 1979 if St. Regis had discharged 5,100 ppd of BOD are irrelevant. No DO data from 1979 were presented at the hearing and no explanation was given for why DO data for 1979 were not used in the analysis. No evidence was presented that St. Regis discharged 5,100 ppd of BOD as a monthly average in 1979.21 It might have discharged substantially less.22 Petitioners did not prove that the proposed permit would significantly degrade the Perdido River, but the burden was on IP to show the opposite. Because the wrong anti-degradation comparison was made, IP failed to provide reasonable assurance that the Perdido River would not be significantly degraded by the proposed discharge. The Experimental Use of Wetlands Exemption Petitioners claim that IP did not demonstrate compliance with all the criteria for the experimental use of wetlands exemption. There are seven criteria set forth in Florida Administrative Code Rule 62-660.300(1)(a) that must be met to qualify for the exemption. IP is seeking a waiver from two of the criteria and those will be discussed later in this Recommended Order. Impact on the Biological Community a. In General Florida Administrative Code Rule 62- 660.300(1)(a)1 requires a demonstration that "the wetlands ecosystem may reasonably be expected to assimilate the waste discharge without significant adverse impact on the biological community within the receiving waters." Dr. Nutter used a "STELLA" wetland model to predict the effects of discharging mill effluent to the wetland tract. The STELLA model was programmed to evaluate the "water budget" for the wetland tract, as well as simulate the fate of nitrogen, phosphorus, and total dissolved solids (TDS). Petitioners contend that the STELLA model is too limited to adequately assess potential adverse impacts on the biological community, but the model was not the sole basis upon which Dr. Nutter formed his opinions. He also relied on relevant scientific literature, his general knowledge of wetland processes, and on his 40 years of experience in land treatment of wastewater. The STELLA model predicted that there would be about a 10 percent reduction in nitrogen and phosphorus. Dr. Nutter testified that that figure was a conservative prediction and the scientific literature suggests there could be a greater reduction. Wetlands are effective in processing TSS and BOD. Dr. Nutter ran the model with the proposed permit limits and the model predicted 90 to 95 percent BOD removal before the effluent reached berm 4. Dr. Nutter expected pH levels to be in the range of background levels in the wetlands, which vary between 6.5 and 8.0.23 Dr. Nutter predicts that in high flow conditions, there will be more DO in the water flowing from the wetlands into Tee and Wicker Lakes. During low flow conditions, he predicts no change in the DO level. Background DO levels in the wetland tract now range between and 5.0 mg/l. Mr. Gallagher's water quality modeling for Perdido Bay assumed that the water flowing from the wetland tract would have a DO level of 2.0 mg/l, which Dr. Nutter believes this is a conservative estimate, meaning it could be higher. Specific Conductance A fundamental premise of the relocated discharge is that it solves the mill's decades-long failure to meet the stricter water quality standards applicable in the fresh waters of Elevenmile Creek because the new receiving waters would be marine waters. However, the majority (about 70 percent) of the wetland tract is a freshwater wetland. The tidal influence does not reach above berm 4 in the wetland tract. Before the mill's effluent reaches marine waters, it would be distributed over the entire freshwater portion of the wetland tract. Dr. Livingston explained that, but for the mill's discharge, minnows and other small "primary" freshwater fish species would be found in Elevenmile Creek. The primary fish cannot tolerate the mill's discharge because the high levels of sodium chloride and sulfide (specific conductance) cause osmoregulatory problems, disrupting their blood metabolism and ion regulation. High conductivity also eliminates sensitive microinvertebrates. Because Tee and Wicker Lakes are in the tidally influenced, southern portion of the wetland tract, the fish and other organisms in the lakes are polyhaline, which means they are adapted to rapid changes in salinity, temperature and other habitat features. That is not true of the organisms in the freshwater area of the wetland tract. A constructed wetlands pilot project was built in 1990 at the Cantonment mill. The initial operational phase of the pilot project was July 1991 through June 1993. A second phase was conducted for just three months, from September 1997 through December 1997. The pilot project generated some information about "benthic macroinvertebrate diversity," which was "low to moderate." In addition, there were "observations" made of "three amphibian species, three reptile species, approximately 31 bird species, three fish species that were introduced, and two mammal species." The information generated by the pilot project is ambiguous with respect to the effect of the effluent on fish and other organisms attributable to the specific conductance of the effluent, indicating both successes and failures in terms of survival rates. Moreover, the data presented from the pilot wetland project lacks sufficient detail, both with respect to the specific conductivity of the effluent applied to the wetlands and with respect to the response of salt-intolerant organisms to the specific conductivity of the effluent, to correlate the findings of the pilot project with the proposed discharge to the wetland tract. Freshwater wetlands do not have naturally high levels of specific conductance. The specific conductance in the wetland tract is 100 micromhos/cm or less.24 The proposed interim limit for specific conductance for the discharge into the wetland tract is "2,500 micromhos/cm or 50% above background, whichever is greater." Using total dissolved solids (TDS) as a surrogate for analyzing the effects on specific conductance, Dr. Nutter predicted that average TDS effluent concentrations would only be reduced by 1.0 percent.25 His prediction is consistent with the literature on the use of wetlands for wastewater treatment, which indicates wetlands are not effective in reducing TDS and specific conductance. The wetland tract would not assimilate TDS in mill's effluent. The potential exists, therefore, for the discharge to cause specific conductance in the freshwater area of the wetland tract to reach levels that are too high for fish and other organisms which can only live, thrive, and reproduce in waters of lower specific conductance. It was the opinion of Barry Sulkin, an environmental scientist, that the "freshwater community" would be adversely impacted by the salts in the effluent. Although the freshwater area of the wetland tract is not dominated by open water ponds, creeks, and streams,26 the evidence shows that it contains sloughs, creeks, and other surface water flow. No evidence was presented about the biological community associated with the sloughs, creeks, and other waters in the wetland tract, other than general statements about the existing plants and the trees that are being planted. Petitioners did not prove that granting the exemption would cause significant adverse impact to the biological community in the freshwater area of the wetland tract, but it was IP's burden to affirmatively demonstrate the opposite. Because IP did not adequately address the impact of increased specific conductance levels on fish and other organisms in the freshwater area of the wetland tract, IP did not provide reasonable assurance that the proposed discharge would be assimilated so as not to cause significant adverse impact on the biological community within the wetland tract. Tee and Wicker Lakes When the Department issued the proposed exemption order, it did not have sufficient data and analyses regarding Tee and Wicker Lakes to determine with reasonable confidence that these waterbodies would not be adversely impacted by the proposed discharge. A transparency study of the lakes, which IP introduced as an exhibit at the final hearing, had not previously been reviewed by Department staff. Dr. Livingston is still developing data and analyses for the lakes to use in the NSAI analysis. The proposed NSAI monitoring plan states that one of its objectives is to determine the "ecological state" of the tidal ponds, including whether the ponds "could comprise an important nursery area for estuarine populations." In addition, the monitoring is to determine "the normal distributions of salinity, temperature, color, and dissolved oxygen" in the tidal ponds. These are data that must be known before a determination is possible that the discharge would not have a significant adverse impact on the biological community associated with the lakes. Petitioners did not prove that granting the exemption would cause significant adverse impact to the biological community of Tee and Wicker Lakes, but it was IP's burden to affirmatively demonstrate the opposite. Because insufficient data exists regarding baseline conditions in Tee and Wicker Lakes, IP did not provide reasonable assurance that the proposed discharge would not cause significant adverse impact on the biological community within the wetland tract. 2. Public Interest and Public Health Florida Administrative Code Rule 62- 660.300(1)(a)2. requires the applicant to demonstrate that "granting the exemption is in the public interest and will not adversely affect public health or the cost of public health or other related programs." Public Interest Petitioners made much of a statement by Mr. Evans that the public interest consideration in this permit review was “IP’s interest”. Petitioners claimed that this statement was an admission by the Department that it gave no consideration to the public interest. However, in context, Mr. Evan's statement was not such an admission. Moreover, Florida Administrative Code Rule 62-302.300(6) expressly provides that the public interest is not confined to activities conducted solely for public benefits, but can also include private activities conducted for private purposes. The proposed exemption order does not directly address the public interest criterion, but it notes that "existing impacted wetlands will be restored." In IP's application for the exemption, it states that the exemption would "contribute to our knowledge of wetlands in general and to the refinement of performance guidelines for the application of pulp mill wastewater to wetlands." Petitioners dispute that the wetland tract is being restored. The evidence shows that some restoration would be accomplished. The natural features and hydrology of the tract have been substantially altered by agriculture, silviculture, clearing for pasture, ditching, and draining. The volume of flow in the discharge would offset the artificial drainage that occurred. A mixture of hardwood tree species would be planted, which would restore more of the diversity found in a natural forested wetland. However, an aspect of the project that could substantially detract from the goal of restoration is the transformation of the freshwater wetlands to an unnatural salty condition. Dr. Nutter said that the salt content of the mill's effluent was equivalent to Gatorade, but for many freshwater organisms, that is too salty. Another public benefit of the exemption that was discussed at the final hearing is that it would allow IP to relocate its discharge from Elevenmile Creek and thus end its adverse impacts to the Creek. That public benefit is not given much weight because IP has not shown that its adverse impacts to Elevenmile Creek cannot be eliminated or substantially reduced by decreasing its production of paper products. The evidence shows only that IP has attempted to solve its pollution problems through environmental engineering.27 A sufficient public interest showing for the purpose of obtaining the experimental use of wetlands exemption should not be a rigorous challenge if all the other exemption criteria are met, because that means the proposed wetland discharge was shown to have no harmful consequences. The public interest showing in this proceeding was insufficient, however, because the other exemption criteria were not met and there is a reasonable potential for harmful consequences. Public Health Petitioners raised the issue of the presence of Klebsiella bacteria, which can be a public health problem when they occur at high levels. The more detection of Klebsiella, however, does not constitute a public health concern. Petitioners did not show that Klebsiella bacteria exist in the mill's effluent at levels that exceed applicable water quality standards. Petitioners also did not present competent evidence about the likely fate of Klebsiella bacteria in the proposed effluent distribution system. Dr. Lane's statement that Klebsiella bacteria might be a problem is not sufficient to rebut IP's prima facie showing that the proposed permit will not cause or contribute to a violation of water quality standards applicable to pathogenic bacteria. Petitioners also point to past incidents of high total coliform concentrations in Elevenmile Creek in support of their contention that the proposed exemption poses a risk to public health. However, these past incidents in Elevenmile Creek are not sufficient to prove that fecal coliform in the effluent discharged to the wetland tract will endanger the public health. IP proposes to restrict access to the wetland distribution system. Furthermore, the fate of bacteria in the wetlands is much different than in the Creek. The more persuasive evidence is that the wetland tract would destroy the bacteria by solar radiation and other mechanisms so that bacteria concentrations in waters accessible by the public would not be at levels which pose a threat to public health. Protection of Potable Water Supplies and Human Health Florida Administrative Code Rule 62- 660.300(1)(a)5. requires the applicant for the exemption to demonstrate that "the presently specified criteria are unnecessary" to protect potable water supplies and human health, which presupposes that the applicant has applied for an exemption from water quality criteria applicable to human health. IP has not requested such an exemption and, therefore, this particular criterion appears to be inapplicable. Even if it were applicable, the evidence does not show that the effluent would cause a problem for potable water supplies or human health. 4. Contiguous Waters Florida Administrative Code Rule 62- 660.300(1)(a)6. requires a showing that "the exemption will not interfere with the designated uses of contiguous waters." Contiguous waters, for the purpose of this criterion, would be Elevenmile Creek, Perdido Bay, and the Perdido River. Petitioners argue that Tee and Wicker Lakes should be considered contiguous waters for the purpose of this criterion of the exemption rule. However, Tee and Wicker Lakes are within the exempted wetland tract so they are not contiguous waters. Petitioners contend that IP failed to account for the buildup of detritus in the wetlands and its eventual export to Perdido Bay. Their contention is based primarily on the opinion of Dr. Kevin White, a civil engineer, that treatment wetlands must be scraped or burned to remove plant buildup. However, Dr. Nutter explained that periodic removal of plant material is needed for the relatively small "constructed wetland" treatment systems that Dr. White is familiar with, but should not be needed in the 1,464-acre wetland tract. Nevertheless, because IP did not provide reasonable assurances that the proposed permit and related authorizations would not significantly degrade the Perdido River OFW, IP failed to meet this particular exemption criterion regarding interference with contiguous waters. 5. Scientifically Valid Experimental Controls Florida Administrative Code Rule 62- 660.300(1)(a)6. requires a showing that "scientifically valid environmental controls are provided . . . to monitor the long-term effects and recycling efficiency." Petitioners' argument about this particular criterion was largely misplaced. The term "environmental controls" modifies the term "monitor" and connotes only that the experiment would be monitored in a manner that will generate reliable information about long-term effects and performance. For monitoring purposes, IP's proposed NSAI protocol is an innovative and comprehensive plan that complies with this exemption criterion. Petitioners' objections to the lack of sufficient information about Tee and Wicker Lakes is more appropriately an attack on the sufficiency of IP's showing that its discharge would not cause a significant adverse impact on the biological community within the wetland tract. That issue was discussed above. 6. Duration of the Exemption Petitioners argue that the exemption can not exceed five years in duration, but the time schedules established by the proposed Consent Order and proposed permit would allow the exemption to be in effect for nine years. The Department's exemption order states that the five years does not begin to run until IP begins to discharge effluent at D-003 into the wetland tract. The possibility that IP might seek to renew the exemption after five years does not make the exemption something other than a five-year exemption. The Department's action on the request to renew the exemption would be subject to public review and challenge by persons whose substantial interests are affected. The Waiver The proposed waiver order would excuse IP from compliance with the criteria in Florida Administrative Code Rule 62-660.300(1)(a)3. and 4., which require that public access and recreation be restricted in the area covered by the exemption for experimental use of wetlands. Without the waiver, the public would have to be excluded from Tee and Wicker Lakes. Section 120.542, Florida Statutes, requires a showing by the person seeking the waiver that the purpose of the underlying statute will be achieved by other means and the application of a rule would create a substantial hardship or would violate principles of fairness. Petitioners contend that IP failed to demonstrate substantial hardship. However, Petitioners do not want public access to Tee and Wicker Lakes restricted. The sole reason for their objection to the proposed waiver is apparently to thwart the issuance of the exemption. Section 120.542, Florida Statutes, defines "substantial hardship" as a demonstrated economic, technological, legal, or other type of hardship to the person requesting the waiver. In the proposed waiver order, the Department identifies IP's hardship as the possibility that denial of the waiver could result in denial of IP's NPDES permit and closure of the mill. The proposed waiver order then describes the number of jobs and other economic benefits of the mill that would be lost if the mill were closed. As discussed in the Conclusions of Law below, the Department's interpretation of Section 120.542, Florida Statutes, to accept a demonstration of hardship that is associated with denial of the waiver is mistaken. The statute requires that the hardship arise from the application of the rule. In this case, IP must demonstrate that it would suffer substantial hardship if it were required to restrict public access and recreation on Tee and Wicker Lakes. Petitioners claimed that IP has no authority to restrict the public from gaining access to Tee and Wicker Lakes because those are public waterbodies which the public has a right to enter and use. A substantial legal hardship for IP in complying with the exemption rule, therefore, is that compliance is impossible. The Consent Order 1. Compliance Schedule Subsections 403.088(2)(d) and (e), Florida Statutes, provide that no permit shall be issued unless a reasonable schedule for constructing, installing, or placing into operation of an approved pollution abatement facility or alternative waste disposal system is in place. Petitioners claim the time schedules for compliance are not reasonable. Petitioners presented no competent evidence, however, that the WWTP upgrades, pipeline construction, and other activities required by the proposed permit can be accomplished in a shorter period of time. One recurring theme in the Petitioners' case was that the adverse impacts associated with the continued discharge to Elevenmile Creek should not be allowed to continue, even for an interim period associated with construction of the WWTP upgrades and effluent pipeline. However, Petitioners also advocated the relocation of the discharge to the Escambia River, or to a "constructed wetlands." Both of these alternatives would have required a transition period during which the discharge to Elevenmile Creek would likely have continued. Furthermore, the Consent Order imposes interim limits on the discharge to Elevenmile Creek that would apply immediately upon issuance of the proposed permit. Although altered by the mill's effluent discharge, Elevenmile Creek is now a relatively stable biological system. The proposed permit would effectuate some improvement in the creek and Perdido Bay even during the construction phase. 2. Contingency Plan The proposed Consent Order includes a contingency plan in the event that the NSAI monitoring analysis shows adverse impacts to the biological community within the wetland tract. The plan provides for alternative responses including relocating all or part of the wetland discharge to Elevenmile Creek. Petitioners object to the plan, primarily because they contend it is vague. The provisions in the contingency plan for relocating all or part of the discharge from the wetland tract to Elevenmile Creek, appear to reflect a presumption that the negatives associated with continued discharge to the wetlands would outweigh the negatives associated with returning the discharge to Elevenmile Creek. However, it is not difficult to imagine scenarios where the harm to the biological community of the wetland tract is small in relationship to the harm to the biological community that might have reestablished itself in Elevenmile Creek. Because the selection of an alternative under the contingency plan requires the consideration of data and analyses associated with future events, it is impossible to know at this time whether future action taken by the Department and IP pursuant to the contingency plan would be reasonable. If the contingency plan is intended by the Department and IP to authorize future action when circumstances described in the plan are present, then the plan is too vague. On the other hand, there is adequate detail in the plan if the purpose of the plan is merely to establish a framework for future decision-making that would be subject to permit modification, public review and challenge. Clarification is needed. 2. Penalties Petitioners complained that the stipulated of $500 per day for violations of the proposed Consent Order is too small to provide a deterrent to a company of the size of IP. Petitioners are correct, but did not present evidence to show what size penalty would be appropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Environmental Protection enter a final order: Denying proposed revised NPDES Permit Number FL0002526- 001/001-IW1S; Disapproving revised Consent Order Number 04-1202; Denying IP's petition for authorization for the experimental use of wetlands; and Denying IP's petition for waiver. DONE AND ENTERED this 11th day of May, 2007, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2007.
The Issue The issue is whether an Environmental Resource Permit (ERP) and a Letter of Consent to Use Sovereignty Submerged Lands (Letter of Consent) should be issued to Respondent, Palm Beach County (County), authorizing it to fill 7.97 acres of submerged lands for a restoration project in Lake Worth Lagoon.
Findings Of Fact Based upon all of the evidence, the following findings are determined: The Parties Trump is the owner association for a two-towered residential and commercial condominium building located at 525 South Flagler Drive in downtown West Palm Beach, upland and west of the project site in the Lagoon. Each tower rises thirty floors and together they have of two hundred twenty units. The first five floors are common areas including a lobby on the first floor, while a pool and patio are located on the fifth floor of the north tower. The property is separated from the Lagoon by Flagler Drive, a four-lane divided road with landscaping and sidewalks which runs adjacent to, and on the western side of, the Lagoon. There is no dispute that Trump has standing to initiate this action. Flagler owns, manages, and leases two multi-story office buildings located at 501 Flagler Drive on the upland real property directly west of the project location. Like the Trump property, the Flagler property is separated from the Lagoon by Flagler Drive. There is no dispute that Flagler has standing to participate in this matter. The County is a political subdivision of the State and is the applicant in this proceeding. The Department is the state agency with the authority under Part IV, Chapter 373, Florida Statutes,2 to issue to the County an ERP for the project, as well as authority as staff to the Board of Trustees of the Internal Improvement Trust Fund (Board of Trustees) to authorize activities on sovereign submerged lands pursuant to Chapter 253, Florida Statutes, and Chapter 18-21. Background On October 29, 2007, the County submitted to the Department its Joint Application for an ERP and Letter of Consent to use sovereignty submerged lands in the Lagoon owned by the Board of Trustees. The application was assigned File No. 50- 0283929-00. After an extensive review process, including three requests for additional information, on August 12, 2008, the Department issued its Notice of Intent authorizing the County to fill 7.97 acres of submerged lands in the Lagoon with approximately 172,931 cubic yards of sand and rock material to create the following: (a) approximately 1.75 acres of red mangrove habitat including 1.52 acres of mangrove islands and 0.23 acres of red mangrove planters; (b) approximately 0.22 acres of cordgrass habitat; (c) approximately 0.90 acres of oyster habitat; (d) approximately 3.44 acres of submerged aquatic vegetation habitat; and (e) a 10-foot by 556-foot (5,560 square feet) public boardwalk with two 3-foot by 16-foot (48 square feet) educational kiosk areas and a 16-foot by 16-foot (256 square feet) observation deck for a total square footage of approximately 5,912 square feet. The Notice of Intent also included a number of general and specific conditions particular to this project. Trump (by timely Petition) and Flagler (by intervention) then challenged the Notice of Intent. They contend generally that the project unreasonably infringes upon or restricts their riparian rights and fails to meet the permitting and consent to use criteria set forth in Chapters 18-21 and 40E-4, as well as Chapter 373, Florida Statutes, and Section 253.141, Florida Statutes. Conflicting evidence on these issues was presented at the hearing. The conflicts have been resolved in favor of the County and the Department, who presented the more persuasive evidence. The Project The project area is a cove in the Lagoon, a Class III water body which extends within the County from North Palm Beach to Manalapan. The western side of the water body in the project area is lined with a vertical concrete seawall approximately 6.64 feet above the mean low water line. The waters immediately adjacent to the Trump and Flagler upland property are generally two to five feet deep along the seawall. To the east lies the island of Palm Beach, to the south is the Royal Park Bridge, which connects West Palm Beach and the Town of Palm Beach, while to the north is the Flagler Memorial drawbridge. The Lagoon is approximately 2,000 feet from shore to shore. The Intracoastal Waterway (ICW) runs roughly through the middle of the Lagoon in a north-south direction. Currently, there is an artificial dredge hole in the project area around four hundred feet from the western seawall. The dredge hole, which descends to approximately twenty feet at its deepest location, is filled with muck, which can be re- suspended by wave energy into the water, blocking the sunlight necessary for the support of biotic life. The muck covers the natural hard bottom, consumes oxygen, and presents an unsuitable environment for benthic organisms. The dredge hole is too deep to support seagrasses. The project calls for filling the dredge hole to intertidal elevations, i.e., between the high and low tide elevations, for mangroves and elevations suitable for seagrass. In all, approximately 173,000 cubic yards of fill will be placed in and around the hole to build up three separate islands within the project footprint, on which the County will plant 10,000 red mangroves, which naturally grow between fifteen and twenty-five feet in height. (The County estimates that eighty to ninety percent of the mangroves will survive and grow to a height of at least fifteen feet.) The top of the islands, not including mangroves, will be just below the mean high water mark. The County also proposes locating planters along the seawall and oyster reefs along the southern end of the project. The planters are designed to extend out approximately twenty feet from the seawall and will be placed on sovereign submerged lands. The last five feet will consist of limestone rock. Mangrove, spartina, and seagrass habitats will provide a biodiverse source of food and habitat for other species, and occurs naturally within the Lagoon but has been lost over time. Oyster habitat is proposed for additional bio-diversity and to provide a natural water filtration function. From the County's perspective, the restoration project would be incomplete without all the habitats proposed. The planters will be at an intertidal elevation, planted with red mangroves and spartina, and faced with rock to reduce wave energy in the area. The oyster reefs are rock structures designed to rise one foot above mean high water line for visibility to boaters. The project also includes a boardwalk and attached educational kiosks on the south side of the project to bring the public in contact with the habitats. The County will maintain the boardwalk, empty the trash daily, and open/close the gates at sunrise/sunset. The County proposes a minimum ten-foot buffer between seagrass beds and the fill area. The project is part of the County's Lagoon Management Plan, which outlines the County's restoration goals within the Lagoon. The County has performed numerous other restoration projects within the Lagoon to re-introduce mangrove and seagrass habitat, such as Snook Island, which consisted of filling a 100- acre dredge hole, installing mangrove islands, seagrass flats, and oyster reefs. The Snook Island project restored mangrove habitat and recruited fish and bird species, including endangered and threatened species. Snook Island has remained stable, with no sediment deposition or erosion. The County intends to fill the dredge hole with native lagoon bottom sediment. A clam-shell machine will deposit the sediment below the water line to reduce turbidity. Sediment will be placed around the edges of the dredge hole, reducing the velocity of the fill as it settles to the bottom and encapsulates the muck, as required by Draft Permit Special Condition No. 19. The County will use turbidity curtains, monitor conditions hourly, and stop work if turbidity levels rise beyond acceptable standards. These precautions are included in Draft Permit Conditions 12, 13, and 14. The County will use construction barges with a four- foot draft to avoid propeller dredge or rutting and will place buoys along the project boundary to guide the construction barges, precautions integrated into the Draft Permit conditions. The County's vendor contracts require maintenance of construction equipment to prevent leakage. A similar condition is found in the Draft Permit. Both the intertidal and seagrass flats elevations at the top of the islands will be built at a 4:1 slope; elevations subject to wind and wave energy will be reinforced with a rock revetment constructed of filter cloth and rock boulders. Seagrass elevations will have no reinforcing rock because they are deep enough to avoid significant currents. Proposed drawings were signed and sealed by a professional engineer. The ERP Criteria To secure regulatory approval for an ERP, an applicant must satisfy the conditions in current Rules 40E-4.301 and 40E- 4.302. The first rule focuses primarily on water quantity, environmental impacts, and water quality. The latter rule requires that a public interest balancing test be made, and that cumulative impacts, if any, be considered. Also, the BOR, which implements the rule criteria, must be taken into account. a. Rule 40E-4.301 21. Paragraphs (1)(a), (1)(b), (1)(c), (1)(g), (1)(h), and (1)(k) and subsections (2) and (3) of the rule do not apply. Although Trump and Flagler have focused primarily on paragraphs (1)(d), (f), and (i) in their joint Proposed Recommended Order, all remaining criteria will be addressed. Paragraph (1)(d) requires that an applicant give reasonable assurance that the proposed activity "will not adversely affect the value of the functions provided to fish and wildlife and listed species by wetlands and other surface waters." Based on the project design, the filling of the dredge hole and capping of muck, the restoration of seagrass habitat, and the creation of mangrove habitat, the project will have no adverse impacts but rather will be beneficial to the value of functions for fish and wildlife. Paragraph (1)(e) requires that an applicant give reasonable assurance that the proposed activity will not adversely affect the quality of receiving waters. The County will be required to manage turbidity that may be generated from the project. In part, the turbidity will be contained by the proposed construction method for filling the dredge hole. As noted earlier, the native sand will be deposited using a clamshell-type arm to dump the sand under the water around the periphery of the edge of the downward slope of the dredge hole. This will continue around the periphery of the hole, building up a lip and letting it slide down towards the bottom of the hole, squeezing the muck into the center of the hole and beginning to encapsulate it. Once there are several feet of native sand over the muck to encapsulate it, the County will resume the filling at the target rate. Subsection 4.2.4.1 of the BOR requires that the County address stabilizing newly created slopes of surfaces. To satisfy this requirement, the County will place the fill at a 4:1 slope. The outer edge of the mangrove islands slope back to a 4:1 slope and use rock rip-rap to stabilize that slope. Also, filter cloth, bedding stones, and boulders will be used. Because water currents slow near the bottom, the 4:1 slope for the seagrass elevations on the bottom will not de-stabilize. There will be turbidity curtains around the project area. Those are floating tops and weighted bottoms that reach to the bottom and are intended to contain any turbidity that may be generated by the project. Specific Conditions 12, 13, and 14 require extensive monitoring of turbidity. The County proposes to use a barge with a draft no greater than four feet. This aspect of the project will require a pre-construction meeting and extensive monitoring throughout the project. As a part of the application review, the County performed a hydrographic analysis which was coordinated with and reviewed by the Department staff. There are no expected debris or siltation concerns as a result of the project. The more persuasive evidence supports a finding that over the long term, the project is expected to have a beneficial effect on water quality. By filling the dredge hole and providing habitat for seagrass, mangroves, and oysters, the project will provide net improvement to water quality. The requirements of the rule have been met. Paragraph (1)(f) requires that the applicant provide reasonable assurance that the activities will not "cause secondary impacts to the water resources." More detailed criteria for consideration are found in BOR Subsection 4.2.7. The County has provided reasonable assurance that through best management practices, it will control turbidity. Also, Specific Conditions in the proposed permit require that water quality monitoring be conducted throughout the process. There will be no impacts to upland habitat for aquatic or wetland dependent species. This is because a vertical seawall is located upland of the project site, and no surrounding uplands are available for nesting or denning by aquatic or wetland dependent listed species. A secondary impact evaluation also includes an evaluation of any related activities that might impact historical and archaeological resources. There are, however, no historical or archaeological resources in the area. If resources are uncovered during the project, Draft Permit conditions require notification to the Department of State. Finally, there are no anticipated future activities or future phases on the project to be considered. Rule 40E-4.301(1)(i) requires that the applicant provide reasonable assurance that the project "will be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed." Trump and Flagler contend that the project cannot be constructed and successfully operated as proposed. Trump's expert witness, Joseph Pike, testified that there were ambiguities and conflicts within the plan drawings that would require changes upon build-out; either fill will be placed outside of the fill area, or the mangrove islands will be smaller than depicted. Mr. Pike also voiced concerns that a 4:1 slope would not be stable and might cause fill to migrate to existing seagrass beds. He further stated that the Snook Island project included 18:1 slopes, and he thought providing rock revetment only at the intertidal zone was insufficient. Mr. Pike acknowledged that he had used 4:1 slopes in lake projects; however, in a tidal project involving fill placement, he opined that a 4:1 slope was likely to "relax." He did not do calculations about what slope might hold and admitted that prior experience using similar slopes with the same type of fill might change his opinion. Finally, Mr. Pike noted that a portion of the dredge hole would not be filled and concluded that the project would not fully cap the muck. Trump's biologist, James Goldasitch, speculated that the water flow changes would cause sediment deposition on existing seagrass beds, possibly causing the seagrasses to die. He admitted, however, that the County's plans called for the creation of 3.44 acres of seagrass and did not know the amount of habitat created compared to the amount of habitat he anticipated being affected. The Department's engineer, Jack Wu, approved the hydrologic aspects of the County's plan, but Mr. Goldasitch speculated that Mr. Wu was more focused on shoreline stability than on depositional forces. Mr. Goldasitch never actually spoke to Mr. Wu regarding his analysis, and Mr. Wu's memorandum refers not only to engineering and construction aspects of the proposal but also to the criteria in Rules 40E-4.301 and 40E-4.302. Mr. Goldasitch believed the County's boardwalk will impact the seagrass beds by blocking sunlight, but acknowledged that the Draft Permit required the boardwalk to be elevated and portions to be grated. Both the Florida Fish and Wildlife Conservation Commission and the Department's expert witness concluded that the permit conditions for constructing the boardwalk, which are common, eliminated impacts to seagrass. Mr. Goldasitch further opined that the 4:1 slope might slump, but then deferred to the opinion of a registered engineer on this type of engineering matter. The County presented its professional engineer, Clint Thomas, who worked on the project design. Mr. Thomas explained that permit drawings are not intended to be construction-level in detail, but are merely intended to provide sufficient detail for the regulator to understand the project within the 8 and 1/2 by 11-inch paper format required by the Department. The County will ultimately prepare permit-level, construction-level, and as-built drawings. Permit conditions also require a pre-construction meeting. No fill will be placed outside the area designated for fill, and the 4:1 slope will start at the outer boundary of the designated fill area until it reaches the specified elevation. Mr. Thomas acknowledged that the plan view drawings depict a mangrove island too close to the western project boundary, but stated that the mangrove island would simply be placed farther to the east during the construction-level plan process. Islands will become smaller islands, but will not be relocated, and in no event will the fill area expand; the fill boundary is a very strict limit. There is no evidence that the County has ever violated a fill boundary established in a permit. The 4:1 slope was based on the type of fill proposed for the project and to maximize project features. Mr. Thomas has successfully used 4:1 slopes with non-compacted fill in the Lagoon, both at Snook Island in its as-built state and at other projects. The islands at Snook Island are similar to those proposed. Other areas in the Lagoon have held slopes steeper than 4:1 with the same type of fill. Therefore, Mr. Thomas opined the 4:1 slope would hold. In rendering this opinion, he explained that the currents in the project vicinity are only around 1.2 knots. Because currents slow near the bottom, the 4:1 slope for the seagrass elevations on the bottom will not de- stabilize. Mr. Thomas addressed the contention that a change in water flow velocity would cause sediment to deposit on existing seagrass. The oyster reefs are rubble structures that allow the water to flow through. If any sediment flows through, it will deposit on the north side of the oyster bar, rather than on the seagrass beds. Given these considerations, the evidence supports a finding that the project will function as proposed. Finally, paragraph (1)(j) requires that the County provide reasonable assurance that it has the financial, legal, and administrative capability to ensure that the activity will be undertaken in accordance with the terms and conditions of the permit. The evidence supports a finding that the County has complied with this requirement. In summary, the evidence supports a finding that the County has given reasonable assurance that the project satisfies the criteria in Rule 40E-4.301. b. Rule 40E-4.302 In addition to the conditions of Rule 40E-4.301, the County must provide reasonable assurance that the construction of the proposed project will not be contrary to the public interest. See Fla. Admin. Code R. 40E-4.302(1)(a)1.-7. Rule 40E-4.302(1)(a)1. requires that the Department consider whether the activity will adversely affect the public health, safety, or welfare or the property of others. Trump first contends that the project will increase the mosquito population. The evidence shows, however, that the mangroves will be placed below the mean high water mark and therefore no increase in mosquitoes should occur. Also, the design of the project, coupled with the local mosquito control program, should ensure that there will be no increase in mosquito population or a risk to the public health. Trump also raised the issue of an increase in trash along the boardwalk area or in the newly-created mangrove islands. The County presented evidence that there will be appropriate trash receptacles in the area as well as regular garbage collection. In terms of safety, navigation markers are included as a part of the project for safe boating by the public. The County consulted with the United States Coast Guard regarding navigation issues. Further, the project will not cause flooding on the property of others or cause an environmental impact on other property. Although a number of Trump residents expressed sincere and well-intended concerns about the project impacting the value of their condominiums (mainly due to a loss of view), BOR Subsection 4.2.3.1(d) provides that the "[Department] will not consider impacts to property values or taxes." Rule 40E-4.302(1)(a)2. requires that the Department consider whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Subparagraph 4. of the same rule requires that the Department consider whether the activity will adversely affect the fishing or recreational value or marine productivity in the vicinity of the activity. The proposed activity is a restoration project for the creation of seagrass and mangrove habitats. As such, it is beneficial to the conservation of fish and wildlife and is expected to increase the biotic life in the project area. Besides providing additional habitat for fish and wildlife, the project will add to the marine productivity in the area. In terms of recreational opportunities, the project is expected to be a destination for boating, kayaking, fishing, and birdwatching. The Florida Fish and Wildlife Conservation Commission has also recommended issuance of the permit with the standard manatee condition for in-water work. This recommendation has been incorporated as Specific Conditions 23 through 25 Rule 40E-4.301(1)(a)3. requires that the Department consider whether the activity will adversely affect navigation and the flow of water, or cause harmful erosion or shoaling. The nearest navigation channel is the ICW. The project is located outside of that area. Subsection 4.2.3.3 of the BOR provides additional guidance on the evaluation of impacts of this nature. Paragraph (a) of that subsection provides that, in evaluating a proposed activity, the Department "will consider the current navigational uses of the surface waters and will not speculate on uses which may occur in the future." Trump residents indicated that in the project area persons are now picked up off the seawall and then travel to the ICW. Access to the seawall is possible from the east and south, although existing shoals currently limit the approach from the south. Large boats do not use the area because of shoals. In general, "[t]here's not a whole lot of boating activity in the project area." The parties agree that if the project is constructed as designed, boats will not be able to travel directly out from the seawall in front on Trump or Flagler to the ICW, as they now do. However, navigation in the area will still be available, although not as convenient as before. As to water flow, shoaling, and erosion, the more persuasive evidence supports a finding that the 4:1 slope will be stable and will not cause fill to migrate outside of the boundaries of the project into existing seagrass beds. The tidal flow will continue through the area after construction without sediment deposition into existing seagrass beds or destabilizing the 4:1 slope. There will be no shoaling or erosion. Finally, the project will be permanent and there are no significant historical and archaeological resources in the area. See Fla. Admin. Code R. 40E-4.302(1)(a)5. and 6. In summary, the evidence supports a finding that the County's proposal is neutral as to whether the activity will adversely affect the public health, safety, welfare, or the property of others; that the County's proposal is neutral with respect to navigation, erosion and shoaling, and water flow, as well as to historical and archaeological concerns; and that the County's proposal is positive with respect to the conservation of fish and wildlife, recreational values and marine productivity, permanency, and current values and functions. When these factors are weighed and balanced, the project is not contrary to the public interest and qualifies for an ERP. D. Proprietary Authorization Chapter 18-21 applies to requests for authorization to use sovereign submerged lands. The management policies, standards, and criteria used to determine whether to approve or deny a request are found in Rule 18-21.004. In making its review, the Department reviews the rule in its entirety; it also looks at the forms of authorization (e.g., letters of consent, leases, deeds, or easement) to determine the most appropriate form of authorization for an activity. Trump and Flagler have raised contentions regarding the proprietary authorization, including whether the application should have been treated as one of heightened public concern, whether the proper form of authorization has been used, and whether their riparian rights are unreasonably infringed upon by the project. Heightened Public Concern Rule 18-21.0051 provides for the delegation of review and decision-making authority to the Department for the use of sovereign submerged lands, with the following exception found in subsection (4) of the rule: (4) The delegations set forth in subsection (2) are not applicable to a specific application for a request to use sovereign submerged lands under Chapter 253 or 258, F.S., where one or more members of the Board, the Department, or the appropriate water management district determines that such application is reasonably expected to result in a heightened public concern, because of its potential effect on the environment, natural resources, or controversial nature or location. On March 13, 2008, the Department's West Palm Beach District Office sent a "heightened public concern [HPC]) memo" to the Department's review panel in Tallahassee,3 seeking guidance as to whether the project required review by the Board of Trustees under the above-cited rule. The Department emailed the County on March 14, 2008, stating that the project would be elevated to the Board of Trustees for review to approve the entire Lagoon Management Plan. The County asked for reconsideration, concerned over timing restraints on grant opportunities. This concern is based on the fact that the County will receive grant monies to assist in the construction of the project and must have regulatory approval by a date certain in order to secure those funds. A second HPC memorandum was sent to the review panel on April 22, 2008. Part of the interim decision to elevate the application to the Board of Trustees concerned the boardwalk connection to the City of West Palm Beach's existing seawall. The City of West Palm Beach is the upland owner of the seawall, sidewalk, and Flagler Drive. On June 9, 2008, the Mayor of West Palm Beach sent a letter to the Department stating that the City "fully supports" the proposed activity, and that the County and the City collaborated on the design of the project, held joint public meetings, and produced a project video. See Department Exhibit Trump and Flagler argue that under the City Charter, the Mayor cannot unilaterally bind the local government to allow structures to be built on City property. Assuming this is true, one of the remaining conditions for the County to initiate the project is to obtain a "letter of concurrence" from the City of West Palm Beach authorizing the County to connect the boardwalk to the seawall. Therefore, the review panel ultimately concluded that the application could be reviewed at the staff level and did not require Board of Trustees review. The evidence at hearing did not establish that the application was one of heightened public concern, given the limited size of the project, its location, and the net benefit to both environmental and natural resources. Compare Brown, et al. v. South Fla. Water Mgmt. Dist., et al., DOAH Case No. 04-0476, 2004 Fla. ENV LEXIS 112 (DOAH Aug. 2, 2004, SFWMD Sept. 8, 2004). Therefore, review by the Board of Trustees was not required. Form of Authorization Trump and Flagler contend that an easement is required by the County, rather than a consent of use. The standard for obtaining an easement is more stringent than a consent of use, and an easement offers a greater interest in sovereign lands. Rule 18-21.005(1) provides the general policy direction for determining the appropriate form of authorization and reads in relevant part as follows: It is the intent of the Board that the form of authorization shall grant the least amount of interest in the sovereignty submerged lands necessary for the activity. For activities not specifically listed, the Board will consider the extent of interest needed and the nature of the proposed activity to determine which form of authorization is appropriate. This rule requires that the Department should apply the lowest and least restrictive form of authorization. Trump and Flagler argue that the County's project constitutes a spoil disposal site under Rule 18-21.005(1)(f)8., a public water management project other than public channels under Rule 18-21.005(1)(f)10., or a management activity which includes "permanent preemption by structures or exclusion of the general public," as described in Rule 18-21.005(1)(f)11. Each of these activities requires an easement rather than a letter of consent in order to use sovereign submerged lands. The evidence shows that the County's project is not a spoil disposal site. Also, it is not primarily a public water management project as there is no evidence that the project relates in any way to flood control, water storage or supply, or conservation of water. Likewise, there is no evidence indicating that the activities will prevent access by the public by exclusion. Even though many of the features (structures) of the project will be permanent, the project is intended to generally increase public access to water resources, as well as the islands, boardwalk, and kiosks. Besides raising the issue of heightened public concern, the second HPC Memorandum dated April 22, 2008, sought guidance as to whether the project required a consent of use or an easement. The review panel concluded that the project qualified for a consent of use, rather than an easement under Rule 18- 21.005(1)(f), because the County's project most closely fits the definition in Rule 18-21.005(1)(c)15. That rule provides that if the proposed activity involves "[h]abitat restoration, enhancement, or permitted mitigation activities without permanent preemption by structures or exclusion of the general public," an applicant may use sovereign submerged lands with a consent of use. Because the County's project increases public access not only to water resources in the Lagoon but also to the permanent structures being built, it more closely falls within the type of activity described in Rule 18-21.005(1)(c)15. Notably, all of the County's restoration projects in the Lagoon have been previously authorized through a consent of use. Finally, the review panel concluded that the project did not fall under Rule 18-21.005(1)(f)16., which requires an easement for environmental management activities that include "permanent preemption by structures or exclusion of the general public" because of the rule's focus on the exclusion of the general public. Riparian Rights The parties have stipulated, for the purpose of this proceeding, that Trump and Flagler have riparian rights, including view, ingress/egress, fishing, boating, swimming, and the qualified right to apply for a dock, that should be considered. Trump and Flagler contend that their right to wharf out (build a dock) from the seawall, ingress/egress from navigable water, and view will be unreasonably infringed upon if the application is approved. See Fla. Admin. Code R. 18- 21.004(3)(a)("[n]one of the provisions of this rule shall be implemented in a manner that would unreasonably infringe upon the traditional, common law riparian rights, as defined in Section 253.141, F.S., of upland property owners adjacent to sovereignty submerged lands"). For the reasons given below, the greater weight of evidence establishes that none of these riparian rights will be unreasonably infringed upon. Currently, while access is possible from the east and the southern approaches, existing shoals limit the southern approach. The boardwalk will further limit boat traffic on the south end, and boats would not be able to cross over the islands. Boat traffic will still be able to access the cove from the north end, and the restoration project will create a boating destination. Trump witness Pike opined that the County's project would negatively affect navigation between the upland parcels and the ICW because the project would eliminate the eastern and southern approaches and leave only the northern approach, which could not be used by both parcels fully. The County's expert, Dr. Nicholas De Gennarro, testified that, during his site visits, he observed boat traffic waiting for the drawbridges using the east side of the ICW away from the project site. Dr. De Gennarro noted that several existing structures are closer to the ICW than the proposed County project, which lies 220 feet away from the ICW. Thus, Dr. De Gennarro concluded that the project would not impact navigation in the ICW. With respect to ingress/egress, Dr. De Gennarro acknowledged that access to the Trump and Flagler properties would not be available from the southern and eastern approaches, but concluded that the restriction represented nothing more than an inconvenience. He noted that the southern approach was already a less preferable approach due to existing shoals. At present, there is very little boating in the area outside of special events. While the project would limit the use of boats directly over the one and one-half acres of mangrove islands, the project will provide a boating destination. Further, both the City docks to the north of the site and the temporary docks in front of Flagler's property –- both used for special events –- will still be available under the County's proposal. There is no swimming and very little fishing in the area because of the degraded conditions caused by the dredge hole. Accordingly, while the project will fill a small portion of water currently available, but not used, for swimming, it will greatly enhance swimming by providing a destination for swimmers. The mangroves planned for the intertidal islands are likely to reach a height of fifteen feet and will be interspersed with spartina. The seawall is located six feet above the water line, making a person's view at eye level already several feet above the water. Trump and Flagler's buildings are built at even higher elevations. Therefore, the mangroves will not substantially obscure the view from either property, even at street level where the view is already partially obscured by existing landscaping. The Lagoon is approximately 2,000 feet across. From north to south around one hundred acres of water can now be viewed from the vicinity. Since the intertidal islands only comprise one and one-half acres, the overall impact to the view of the water body is very small. The mangroves in the planters extending out from the seawall will be trimmed to one foot above the seawall; the County requested the condition and committed at hearing to trimming the mangroves if the City of West Palm Beach does not. County photographs show Trump and Flagler's present view of the water body and demonstrate the comparatively small percentage of the view affected by the one and one-half acres of mangrove islands. See County Exhibits 133a-e and 134a-d. The photographs also demonstrated that sizeable palm trees are already part of the existing view. Additionally, the County photographs depicted the small impact that trimmed mangrove planters would have on the view. The area obstructed by the mangrove islands and seagrass is negligible compared to the expanse of the existing view. Trump and Flagler offered no evidence to contradict the County's analysis regarding the scope of the impact on the view. Trump residents Dale McNulty, Dean Goodman, and Charles Lemoine testified that they personally would not want to view mangrove islands regardless of tree size or the size of the islands. Understandably, after years of unfettered view and an open expanse of water, they are opposed to any type of project in this area of the Lagoon. However, Mr. Goodman acknowledged that he would still be able to see the Town of Palm Beach from his unit. The evidence supports a finding that while the project will undoubtedly alter the view of the water from both Trump and Flagler's property, the impact on view is not so significant as to constitute an unreasonable infringement of their riparian rights. Mr. Lemoine stated that he had a forty-foot trawler that he would like to dock in front of his property. He currently docks the boat at a marina twenty miles north of the Trump property. He prefers to bring his boat in stern first and enter slips oriented north to south. He indicated that he can drive his boat in five feet of water, but prefers six feet; however, he also testified that he has brought his boat directly up to the bulkhead in front of Trump, which is approximately a two- or three-foot depth. The witness has seen sailboats and other boats moored near the bulkhead over extended timeframes. Mr. Lemoine speculated that Trump might seek a dock, either alone or in conjunction with Flagler, but admitted that Trump has never applied for a dock permit. He stated that Trump has had discussions about the possibility of a dock over the last fifteen years and speculated that a dock plan might include anything from the purchase/lease of the City docks to a lease of Trump's riparian interests to a third party. By contrast, Trump resident and former Board member Dean Goodman indicated "the idea was to provide an amenity [for] a number of people that are in the building that are boaters." Mr. Goodman stated that he hoped to be able to have a boat in front of the building someday, but did not own a boat in Florida. Association president Dale McNulty explained that, while informal discussions have occurred regarding the possibility of a dock, no official action had been taken. Mr. McNulty characterized the dock plans as being "sort of in the land of wishful thinking." Mr. Pike, while acknowledging that both parcels would still be able to design a dock for their property, opined that the County's project unreasonably limited the size and configuration of the docks possible. Mr. Pike initially admitted that a safe navigation depth for a forty-foot boat, or even a sailboat, was four feet below mean low water (MLW), but stated that he would prefer to design a dock with an additional two-to- three feet of water below the four-foot draft to avoid propeller damage. However, Mr. Pike conceded that he has designed docks for boats in four feet below MLW and ultimately based his own calculations on an assumption of a four-foot draft and one-foot cushion, or five feet below MLW. Mr. Pike also opined that a north-south alignment for boat slips was a preferred slip orientation. Given the bathymetry in the area and the documented seagrasses, Mr. Pike estimated that twenty slips could be designed for the Flagler property, rather than the thirty-four slips provided for by the County Manatee Protection Plan. He thought that a design might accommodate thirty to thirty-two slips for Trump, rather than the forty-slips provided for by the County Manatee Protection Plan. Based on the limitation on number of slips and configurations, the witness opined that the County's project would unreasonably interfere with Trump and Flagler's ability to design a dock. He admitted, though, that the numbers derived from the County Manatee Protection Plan represent a maximum number, rather than a specified or guaranteed number. He further admitted that other agency limitations may further restrict Trump and Flagler's right to dockage. Without a permit application or plan from Trump or Flagler, County witness Robbins concluded that the most reasonable assumption was an owner-oriented facility designed for the building owners/tenants. The County introduced a graphic illustrating areas available for dock construction, with sufficient depth for 35- to 40-foot boats (-6 feet NGVD) and with no seagrasses present. Rule 18-21.004(4)(b)2. limits ownership-oriented facilities generally to forty square feet for each foot of riparian shoreline, giving Trump the ability to apply for a dock that preempted a maximum of 16,000 square feet, and Flagler a maximum of 14,000 square feet. Under the County Manatee Protection Plan, Trump would be limited to forty slips; Flagler would have the potential for thirty-four slips. Mr. Robbins testified that, in his experience, a minus five MLW is a common depth for docks, but that elevations as shallow as a minus four MLW could be used depending on the type of boats and the dock configuration. Mr. Robbins explained that, even with the County's project in place and factoring in the other limitations, Trump would still have 61,842 square feet of potential space within which to design a dock. Flagler would still have 41,481 square feet of potential space, even considering the need to retain a path for ingress and egress from the Trump parcel. A more detailed analysis of the seagrasses might make more square footage available for dock construction. Dr. De Gennarro also evaluated whether a dock could be designed to serve Trump and Flagler's parcels. The vessel owner statistics for the County indicate that at least ninety-five percent of the boats registered in the County are thirty-nine feet or less; consequently, Dr. De Gennarro focused on boats forty feet or less. Dr. De Gennarro considered the water depths and the existence of subaquatic vegetations and concluded that the graphic presented by Mr. Robbins was conservative, but still provided adequate space for both Trump and Flagler to construct appropriate dockage, allowing thirty-eight boats for Trump and thirty-two for Flagler of varying size. However, Dr. De Gennarro concluded that a dock design of forty slips for each would also be possible, depending on the size of the boats. Dr. De Gennarro proposed that a single, double-loaded parallel dock design would be a good layout for a potential docking facility in front of both Trump and Flagler's property that would be protected by the County's proposed islands, provide sufficient water depths, and provide an attractive facility. He specified, however, that the single, double-loaded parallel dock design was simply one of "many" that might work in the given space. Dr. De Gennarro explained that the existing dredge hole would not be a preferable location for either a mooring field or a dock because the deep muck-bottom would drive up the costs for either type of facility. Accordingly, Dr. De Gennarro concluded that the County's project would not foreclose or even substantially restrict the ability to locate a dock in front of Trump and Flagler’s property. The more persuasive evidence supports a finding that neither the right of ingress/egress nor the right to boat in the vicinity is unreasonably infringed upon by the County's project. Trump and Flagler will continue to have reasonable access to navigation. The northerly approach preserved by the County's project will allow for boat traffic to safely navigate in the area. While the southerly and easterly approaches are eliminated by the County's plan, the evidence indicates that the two approaches were less preferable than the northerly approach because of the presence of shoals. Based on the above considerations, the County's project will not unreasonably infringe upon Trump or Flagler's qualified right to a dock. The fact that the project might preclude the design and permitting of a dock that would host very large vessels does not mean that Trump and Flagler's rights regarding docking have been unreasonably infringed. The evidence shows that substantial docking facilities of multiple configurations are still possible even if the County's project is approved. In summary, the County's application for proprietary authorization should be approved. Other Contentions All other contentions raised by Trump and Flagler have been considered and are found to be without merit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order approving the County's application for a consolidated ERP and consent to use sovereignty submerged lands. DONE AND ENTERED this 24th day of September, 2009, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 2009.
Findings Of Fact The Parties. Respondent, Springs on Kings Bay (hereinafter referred to as "Springs"), is a condominium association representing 12, single-family, condominium owners located on Hunter Spring Run. Hunter Spring Run is a tributary of Crystal River. The Springs and Hunter Spring Run are located in Citrus County, Florida. Respondent, the Florida Department of Environmental Protection (hereinafter referred to as the "Department"), is an agency of the State of Florida with responsibility for, among other things, dredge and fill permits involving Florida waters. The Petitioners are the owners of real property located north of the Springs' property. The Petitioners' property is located at the waterward edge of North West Third Street, Crystal River, Citrus County, Florida. By water, the nearest point of the Petitioners' property to the proposed facility is approximately 2,600 feet. The evidence failed to prove that access to Crystal River from the Petitioners' property involves use of Hunter Spring Run, that the Petitioners are required to pass near the proposed facility or that the Petitioners ever pass near the proposed facility. The Springs' Application for Permit. On or about December 31, 1991, the Springs applied to the Department for a permit to construct a 1,423 square foot private docking facility with twelve slips, and a 564 square foot private docking facility with six slips. Both facilities were to be located on Springs' property located on Hunter Spring Run. Due to Department concerns, the proposed project was subsequently modified to delete the six-slip docking facility and reduce the twelve-slip facility to 975.6 square feet. The Springs also agreed, as a condition for obtaining the permit, to establish a conservation easement of approximately 504 feet of lineal shoreline in and adjacent to Hunter Spring Run. On or about July 22, 1993, the Department issued a notice of intent to issue the permit sought by the Springs. A copy of the proposed permit, permit number 09-207432-3, was attached to the notice of intent to issue. On or about August 5, 1993, the Petitioners filed a letter challenging the Department's decision to issue the permit. The Proposed Facility. Hunter Spring Run is a Class III water body designated as an Outstanding Florida Water. The proposed facility will consist of a 5' X 30' access walkway, 4' X 119' main pier constructed parallel to the shoreline, two 4' X 18" access piers and two 3' X 39" finger piers mounted on 12-inch diameter pilings. The piers will be constructed on pilings driven into the river bottom. The proposed facility will serve residents of the Springs. One boat slip per resident is proposed. The site of the proposed facility is in water with a depth greater than 3 feet. Submerged aquatic vegetation consists primarily of hydrilla verticillation, which is not a native species. The area where the facility is to be constructed is substantially void of other aquatic vegetation. The shoreline in the area of the proposed facility is relatively steep with a limited transitional area of wetland type species. Water depth drops off relatively quickly to approximately 4 feet. Hunter Spring Run is approximately 160.69 feet wide at the proposed facility site. The proposed facility will extend over approximately 24.3 percent of the width of Hunter Spring Run at the site. The main navigation channel of Hunter Spring Run is primarily located adjacent to the opposite shore from the proposed facility. The property in the immediate area of the Springs' property is generally developed for single-family and multifamily residences. Impact on Water Quality Standards. The weight of the evidence proved that the proposed facility will not lower the existing ambient water quality of waters of the State of Florida. The evidence presented by the Department and Springs concerning the impact on water quality standards was uncontroverted by the Petitioners. While there will be some turbidity associated with installation of pilings, it will be temporary, lasting only a few days, and steps will be taken to minimize the turbidity. A turbidity curtain will be utilized. Boat maintenance is prohibited at the facility by the conditions of the proposed permit. Impact on Public Health, Safety and Welfare or the Property of Others. The weight of the evidence proved that there will not be any adverse impact on public health, safety or welfare, or the property of others. By agreeing to an easement of approximately 504 feet of lineal shoreline, the potential impact from docks in the area will be substantially reduced. Section 403.813, Florida Statutes, exempts the construction of single- family docks of 500 square feet or less under certain circumstances. Several such docks could have been constructed along the area subject to the easement. Potentially, a dock could be built every 65 feet of shoreline. By granting the easement, the potential number of docks and slips along Hunter Spring Run has been reduced. Therefore, the proposed project will be of benefit to public health, safety and welfare, and the property of others. While the Petitioners suggested that the proposed facility will have an adverse impact on the "property of others," they failed to prove what that impact will be. In particular, the Petitioners suggested that the facility will have an adverse impact on their property apparently because the Petitioners believe that the construction of the facility will reduce the number of slips they may be allowed to construct or maintain at their property. The evidence, however, failed to prove that this "economic" impact will materialize, or is likely to, or that, if it does, such impact should prohibit the Department from issuing the permit. Affect on Conservation of Fish and Wildlife, Including Endangered or Threatened Species, or Their Habitat. The weight of the evidence proved that the impact on conservation of fish and wildlife, including endangered or threatened species will be minimal. The Petitioners offered no evidence to counter this finding. Crystal River is frequented by manatees. Manatees are an endangered species. The area where the proposed project will be located, however, has not been designated by the U.S. Army Corps of Engineers as an essential habitat (an area where manatees breed and feed) for manatees. The possibility of any impact on manatees will be minimized. Construction will be allowed at a time of year intended to avoid impact on the manatees. Construction precautions will be taken to avoid any impact on manatees. If a manatee is sighted during construction, all construction must cease until the manatee leaves the area. Boats will be required to observe a "no wake/idle speed" at all times to reduce the potential of harming manatees. Logs of sightings of manatees are to be maintained and reported to the Department. Signs with information concerning manatees will be posted during construction and after construction. The design of the proposed facility will minimize potential impacts on manatees. There is a lack of vegetation to attract feeding by manatees or fish or other wildlife near the proposed project. The Springs has a former Department of Natural Resources consent of use for the project. Affect on Navigation and the Flow of Water and Whether Harmful Erosion or Shoaling will be Caused. The evidence proved that there will not be any negative impact on navigation or the flow of water and that there will not be any harmful erosion or shoaling caused by the proposed project. These will be adequate water depth and width between the furthest point of the dock and the far shore for the passage of boats. Boats are prohibited by the permit conditions to be moored outside of designated moorings. This will reduce the possibility of prop dredging. The conservation easement will also reduce the potential for harm to navigation which could occur if single-family docks were constructed along the shore of the easement. The conservation easement also will insure that 504 linear feet of shoreline remains protected and natural. Affect on Fishing or Recreational Values or Marine Productivity. The proposed project will increase recreational use of the area. It will not adversely impact marine productivity or fishing. I. Temporary or Permanent Project. The proposed project is for a permanent structure. Affect on Significant Historical and Archaeological Resources. There will not be any impact on significant historical or archaeological resources. Affect on the Current Condition and Relative Value of Functions Being Performed by Areas Affected by the Project. The proposed project will not adversely affect current conditions or the relative value of functions being performed by areas affected by the project. Cumulative Impact. Cumulative impact from the proposed project in the area should be minimal. Because of the conservation easement, the cumulative impact of the proposed project will be in the public interest due to the decrease in the potential number of boat slips in the area. There should not be any cumulative impacts to water quality or the public interest standards of Section 403.918(2), Florida Statutes. Standing of the Petitioners. The Petitioners failed to prove that their interest in the proposed project is any greater than any member of the public. The Petitioners' property is located approximately 2,600 feet away from the proposed project. A small peninsula, on which the Springs' property is located, separates the proposed project from the Petitioners' property. The Petitioners did not offer evidence to prove that they use the area where the proposed project is located or that any use for the proposed project will directly impact their property. Ms. Toms suggested that the proposed project will reduce the number of slips the Petitioners may construct or maintain at their property. The evidence, however, failed to prove that the proposed project will have any impact on such construction or maintenance (if allowed) on their property.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order dismissing the petition in this case and issuing permit number 09-207432-3 to Springs on Kings Bay. DONE AND ENTERED this 6th day of April, 1994, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1994. APPENDIX Case Number 93-5724 Springs and the Petitioners have submitted proposed findings of fact. The Department has adopted the proposed findings of fact of the Springs by reference. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioners' Proposed Findings of Fact 1 These proposed findings are not supported by the evidence accepted during the final hearing of this case. Most of these proposed findings are also not relevant to this proceeding. The issue of who owns the Petitioners' property cannot be resolved in this case. 2-3 Not a proposed finding of fact. These paragraphs consist of arguments of law. Those arguments are not relevant to this proceeding. 4 Not supported by the weight of the evidence and not relevant. The Springs' Proposed Findings of Fact Accepted in 1, 4-6 and 9. Accepted in 1-2, 9 and hereby accepted. Accepted in 6 and 10. Accepted in 12-13, 22 and hereby accepted. 5 Accepted in 11, 18-19, 26-30 and 33. There was no proposed finding of fact 6. Hereby accepted. Accepted in 1, 17 and hereby accepted. Accepted in 14-16. Accepted in 2, 23, 47-48 and hereby accepted. Accepted in 11, 13, 18-19 and hereby accepted. Accepted in 25 and hereby accepted. Accepted in 25, 28 and hereby accepted. Accepted in 31-32 and hereby accepted. Accepted in 33-38 and hereby accepted. Accepted in 34. Accepted in 38. Accepted in 33 and 46-48. 19 See 23 and 46-48. 20 Accepted in 23 and 43-48. 31 Cumulative. COPIES FURNISHED: Harold and Charlotte Toms 11364 West Indian Woods Path Crystal River, Florida 34428 Clark A. Stillwell, Esquire BRANNEN, STILLWELL & PERRIN, P.A. Post Office Box 250 Inverness, Florida 34451-0250 Keith C. Hetrick Assistant General Counsel 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, Esquire General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issue here concerns the entitlement of the Petitioner, Hernstadt Broadcasting Corporation to be granted certain environmental permits from the Respondent, State of Florida, Department of Environmental Regulation, which would allow the Petitioner to construct a radio transmitter tower and access dock within the Biscayne Bay which is located in Dade County Florida. 1/
Findings Of Fact The Petitioner in this action, Hernstadt Broadcasting Corporation, owns and operates radio station WKAT, which is located in Miami Beach, Dade County, Florida. The Petitioner is licensed by the Federal Communications Commission to pursue this enterprise. On April 30, 1980, the State of Florida, Department of Environmental Regulation received an application from the Petitioner, which application requested permission to construct a radio transmitter tower and access dock in Biscayne Bay, Dade County, Florida. (The tower end dock are part of a proposed station complex in which the radio station building is to be constructed upland from the Bay.) The project, if allowed, would be located off the north side of the Julia Tuttle Causeway which connects the City of Miami and the City of Miami Beach via the Biscayne Bay. The tower and access dock, if constructed, would be located in submerged lands owned by the State of Florida. In view of the location of this apparatus in Biscayne Bay, it would be subject to the provisions of the Biscayne Bay Aquatic Preserve Act found in Chapter 258, Florida Statutes, together with other provisions of statute and rule. To place the access dock in the Bay, the Petitioner proposes to drive pilings into the Bay bottom to support the access dock which is 200 feet long and four (4) feet wide. The support mechanism for the radio tower would also be constructed by the driving of pilings into the Bay bottom and the radio transmitting tower, once built, would be 400 feet tall and would have attached stabilizing guy wires connected to anchors driven into the Bay bottom. As the pilings are driven into the floor of the Bay, the displaced soils will be compressed into lower elevations or redistributed against the pilings. Respondent's Exhibit No. 15, admitted into evidence, is a copy of the original application for permit, which was modified by site plans and sketches depicted in Respondent's Exhibit No. 16, admitted into evidence, shortening certain dimensions related to the access dock. (These modifications came about subsequent to the Department of Environmental Regulation's permit application appraisal found as Petitioner's Exhibit No. 10, which is dated June 23, 1980.) After review of the project, in the face of the aforementioned modifications, the Department of Environmental Regulation issued a letter of intent to deny the permit request. This letter of intent was dated September 9, 1980, a copy of which may be found as petitioner's Exhibit No. 11, admitted into evidence. The authority stated for such denial are these provisions of Subsection 258.165(3)(b), Florida Statutes (Supp. 1980), and Rule 17-4.242(1), Florida Administrative Code. Subsequent to the issuance of the letter of intent to deny, a further modification was made on the project increasing the length of the proposed access dock to the presently requested 200 feet. This modification is depicted in petitioner's Exhibit No. 12, admitted into evidence, which shows site plans and other pertinent information related to the project. Another modification to the project which the Petitioner claims is not subject to permit review by the Department of Environmental Regulation, and for which the Department of Environmental Regulation takes a contrary point of view, concerns the use of a grid of nickel-plated copper straps, approximately 40 feet by 40 feet, constituted of a mesh of approximately 1/4 inch in diameter by 1 inch sections to be placed underneath the tower and on the Bay bottom for purposes of grounding the tower. This item was not made known to the Respondent until September 30, 1980, at a time subsequent to the letter of intent to deny. The Petitioner in this action pursues the project on the basis of a joint use agreement entered into with the State of Florida, Department of Transportation, in which the Department of Transportation, in return for the ability to use the radio tower for communications in connection with a surveillance and traffic control system for Interstate Highway-95 and for the ability of the City of Miami, Florida, to use the facility for a tactical communication repeater installation, would grant to the Petitioner the Department of Transportation's rights and opportunities as easement holder in the area where the subject project would be constructed. See Petitioners' Exhibit No. 3, admitted into evidence. The Department of Transportation's rights stem from an easement grant from the Trustees of the Internal Improvement Trust Fund. See Petitioner's Exhibit No. 13, admitted into evidence. The rights of the Petitioner, by assignment from the Department of Transportation, do not relieve Petitioner of the obligation to gain the necessary approval of the Trustees of the Internal Improvement Trust Fund in the person of the State of Florida, Department of Natural Resources for permission to use those submerged lands over which the access walkway and tower would be constructed, notwithstanding any rights and privileges assigned to the Petitioner by the Department of Transportation as easement from the Trustees of the Internal Improvement Trust Fund. This is true because the perpetual easement granted from the Trustees to the Department of Transportation for right-of-way and dredging purposes related to the roadway which is constituted of the Julia Tuttle Causeway and to the adjacent Bay bottoms related to construction and maintenance of that roadway, does not envision assignment of the submerged lands to an entity in the position of the Petitioner, which entity does not have as its purpose the construction or maintenance of the roadway; hence, the necessity to gain permission from the Department of Natural Resources if the access dock and tower are to be constructed on the submerged land of the State. The easement held by the Department of Transportation is specific in nature and does not contemplate the construction of a radio station. (It is not necessary to comment on the question of whether a joint use agreement between the Department of Transportation and Hernstadt as that Department's assignee for rights and privileges bestowed upon the Department from the Trustees based on the easement rights granted on October 2, 1941, would allow the construction of the building of the radio station building which would be at the upland terminus of the access dock which also adjoins the radio tower, the Department of Environmental Regulation having offered no claim for permitting jurisdiction over the radio station building.) The Petitioner proposes to move its radio station from the existing location in Miami Beach because buildings in the general area of the radio station interfere with the radio signal and, in addition, there is interference caused by radio transmissions from Cuba. The terms of the license held by Petitioner on issuance from the Federal Communications Commission limit the movement of the station's transmitter tower to a location no more than four (4) miles from the current location. At the time of the hearing, the Petitioner had not located an alternative tower site, other than the proposed site. As stated before, if the tower were constructed, the State of Florida, Department of Transportation would utilize the tower in its communications network and the City of Miami Fire and Police Departments would likewise desire to use the tower. The Florida Marine Patrol and the Florida Highway Patrol would also be interested in using the proposed tower for communications purposes. The City of Miami Planning and Advisory Board and the City Commission of that municipality would be in favor of the construction of the proposed radio tower. Dade County, Florida, has adopted a Comprehensive Master Plan, copies of which may be found as Respondent's Exhibit No. 19, admitted into evidence. Within that document is a discussion of environmental concerns within the county to include Biscayne Bay and, in particular, concern for protection of environmentally sensitive areas such as Biscayne Bay and an interest by the County to provide a wide range of public water oriented opportunities for the populace. Subsequent to the time of the submission of the permit application, and specifically, in October, 1980, Dade County, through its Metropolitan Planning Department and in conjunction with the Metropolitan Dade County Environmental Resources Management Department prepared a proposed Biscayne Bay Management Plan, a copy of which may be found as Respondent's Exhibit No. 17, admitted into evidence. This plan was approved by the Board of County Commissioners of Dade County, Florida, by an Ordinance, a copy of which may be found as the Respondent's Exhibit No. 18, admitted into evidence. The Biscayne Bay Management Plan encourages the enhancement of public access to the Bay for uses such as fishing, boating, shoreline wading and view in and the preservation and enhancement of the environmental, chemical and aesthetic qualities of the Bay. Furthermore, if the necessary permission could be obtained, Dade County, has future plans to use the subject Julia Tuttle Causeway as a public access to the Bay. The location of the radio tower and associated facilities would interfere with the proposed use by Dade County. The Department of Environmental Regulation, in keeping with Section 403.0615, Florida Statutes, 2/ through a program in conjunction with Dade County is attempting the restoration of the biological and chemical characteristics of the Biscayne Bay. Some of the items included in this program would be enhancement of aquatic vegetation, including seagrasses and mangroves and the promotion of aesthetics and public access to Biscayne Bay, to include the area of the Julia Tuttle Causeway. Radio station WKAT presents public service programs; is a part of the Emergency Broadcasting System and broadcasts emergency information in times of natural disaster. On the question of environmental implications of this project, the placement of the pilings would cause the destruction of certain seagrasses in that area, while at the same time promoting the introduction of marine life along the surfaces of the tower and dock supports. Seagrasses in the area where the grounding system would be placed may be destroyed and although the copper to be used would be nickel plated, thereby inhibiting the release of the toxic properties of the coated copper, eventually the nickel plating would break down and the marine life communities adjacent to the mesh would be harmed by the copper. The loss of seagrasses under the grid could cause a reduction in fish population. The installation of the radio tower and access dock in the Biscayne Bay is an impediment to navigation; however, the Petitioner intends to place channel markers to divert boat traffic away from the tower and its environs. There is no expected difficulty with run-off, discharges or other forms of pollution related to the construction or operation of the tower facility, although there will be some turbidity caused in the construction phases of the project. The project would be located in a State Aquatic Preserve within the meaning of Chapter 258, Florida Statutes; would be located in waters of the State within the meaning of Chapters 253 and 403, Florida Statutes; would be in navigable water within the meaning of Chapter 253, Florida Statutes, end would be in an Outstanding Florida Water within the meaning of Rule 17-4.242(1), Florida Administrative Code.
