Findings Of Fact Upon consideration of the stipulations of fact and the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The applicant is a duly authorized and registered Florida corporation engaged in the business of producing electrical power for sale. It proposes to construct and operate a 486 megawatt (gross) coal fired electrical generating facility immediately adjacent to its existing three coal fired units known a Big Bend Units 1, 2 and 3. The proposed site is located on the eastern shore of Tampa Bay near the mouth of the Hillsborough Bay (designated as a Class III waterbody), and is five miles north of Ruskin, ten miles south of Tampa and fourteen miles from St. Petersburg across Tampa Bay. As noted, the proposed unit will be the fourth unit at the applicant's existing Big Bend site and will share many of the service facilities with the existing units. The shared facilities include the coal dock, loading facilities, the coal storage area, the switchyard, and the existing wastewater treatment pond and spray irrigation field. The existing transmission line towers will be used by Unit No. 4, but approximately 3,000 feet of conductors will be installed to connect the new unit to the existing switchyard located just east of the existing station. Other associated facilities include storage and handling facilities for limestone necessary to operate the flue gas desulfurization system, storage and disposal areas for the by-product produced by that system and storage and disposal for ash. A spur from the Seaboard Coast Line Railroad to the site was constructed for previous projects and will be used in connection with construction of proposed Unit No. 4. An additional spur will be constructed entirely within the site boundaries and no offsite rail construction will be necessary. As a primary energy source, proposed Unit No. 4 will burn high sulfur bituminous coal. The unit will be equipped with an electrostatic precipitator for the purpose of controlling the emission of particulates, and will also be equipped with a flue gas desulfurization system for the purpose of controlling emissions of sulfur dioxide. These pollution control devices have been determined by the Department of Environmental Regulation to constitute the "best available control technology." In order to prevent significant deterioration of air quality from the operation of Unit No. 4, various alternative strategies have been studied by TECO and its consultants. These studies demonstrated that the most economical strategy which will comply with state and federal regulations calls for the use of a 99.74% efficient electrostatic precipitator for the removal of particulate emissions, boiler and burner design for oxides of nitrogen and carbon monoxide and a system for the removal of sulfur dioxide which includes a flue gas desulfurization system, coal washing and retention of certain of the sulfur dioxide in the ash during combustion. The entire sulfur dioxide control system will provide a removal efficiency of 90 percent. Tampa Electric Company and its consultants have modeled and analyzed the projected effects of air pollution from proposed Unit No. 4. The evidence developed from such studies shows that the operation of Unit No. 4 as proposed pursuant to the attached conditions of certification will comply with State and federal standards for ambient air quality and the prevention of significant deterioration of air quality. Big Bend Unit No. 4 will generate three basic byproduct materials. These are fly ash, bottom ash and flue gas desulfurization byproduct. The fly ash generated by Unit No. 4 will be collected in the electrostatic precipitator prior to the boiler gas being discharged to the atmosphere. This material will be marketed as a raw material for the production of cement. However, in the event no market is available, provisions have been made to store fly ash at the site of Unit No. 4. The unsold fly ash will be sluiced to a settling pond and then ultimately transported to the final storage area. Bottom ash is the material resulting from combustion of coal which is collected at the bottom of the boiler. Bottom ash will be sluiced to a bottom ash area which will consist of a pond for settling the material and a final disposal area. The flue gas desulfurization system byproduct, a commercial grade gypsum, will be stored as necessary on site. It is anticipated that this will be a marketable product. Fresh water necessary to operate the facility, other than for cooling purposes, will be obtained from Hillsborough County. This fresh water will be used to supply make-up water to the boiler and in the flue gas desulfurization system. In addition, fresh water will be used to sluice ash and to service the sanitary facilities for the plant, for fire protection and for other limited miscellaneous uses. All such water will be obtained off premises and no production wells will be owned or operated by Tampa Electric Company in connection with Unit No. 4. For some purposes, the applicant will use the lowest quality of water available from the County before drawing from the public potable water supply. Proposed Unit No. 4 will utilize a once through condenser cooling system and fine mesh screens on the intake structures will be installed for existing Unit No. 3 and the proposed Unit No. 4. Saltwater for the cooling system will be withdrawn from the existing intake canal and will be returned to the existing discharge canal. The plant cooling water flow will be pumped from the intake structure screen wells through the plant and discharged to the discharge canal where the flow from Unit No. 4 will combine with the existing flow from Units 1, 2 and 3. There is sufficient water available in Tampa Bay to supply the volume requirements of the Unit No. 4 once through cooling system. The fine mesh screens installed on the intake structures for existing Unit No. 3 and proposed Unit No. 4 will minimize the impact of entrainment and impingement on organisms in the area. A system will be provided to return organisms impinged on the fine mesh screen structures to a location suitable to the Department of Environmental Regulation and the United States Environmental Protection Agency. The cooling water passing through the plant will increase in temperature to an expected level of 17 degrees Fahrenheit above the temperature of the ambient intake cooling water prior to ultimate discharge. This 17 degree temperature rise is the design maximum for the unit at maximum load conditions. The heated water will be discharged to the existing station discharge canal and will then flow in a westerly direction into the Bay where it will mix with ambient water and continue to reduce in temperature. Tampa Electric Company performed a 316 Demonstration in accordance with Section 316 of the Clean Water Act of 1977, to assess the impacts of the thermal discharge from the plant on organisms in the Bay. In addition, the effects of the cooling water intake structure on impingement and entrainment of organisms in the intake water were assessed. These reports were submitted to the Department of Environmental Regulation and the Environmental Protection Agency for evaluation. The Department of Environmental Regulation has approved the use of a once through cooling system with fine mesh screens on the intake structures on Unit No. 3 and Unit No. 4. DER recommends establishment of a thermal mixing zone in accordance with Section 17-3.05, Florida Administrative Code, encompassing an area not to exceed 4980 acres. The conditions of certification proposed by DER require further validation of the size of the mixing zone after Unit No. 4 begins operations. The Environmental Protection Agency has tentatively determined that the use of fine mesh screen technology on existing Unit No. 3 and proposed Unit No. 4 constitutes the best technology available for minimizing adverse environmental impacts for the purposes of Section 316(b) of the Clean Water Act of 1977, and has also tentatively determined that the impact of the thermal discharge from proposed Unit No. 4 is within acceptable limits under Section 316(a) of the Clean Water Act of 1977. The unit will utilize chlorine in the circulating water system to control the growth of marine organisms in the condenser and intake tunnel. The control of this growth, or biofouling, is necessary to ensure that the flow of the cooling water and transfer of heat is not excessively impeded. The chlorine which is inserted into the circulating system is ultimately discharged to the discharge canal and then to the Bay. To ensure compliance with Florida Class III water quality standards applicable to discharges of chlorine, the Department of Environmental Regulation recommends in its conditions of certification that an effluent limitation of 0.2 milligrams per liter be imposed and a mixing zone encompassing 6.1 acres be established. Process waste streams associated with Unit No. 4 will include the boiler blowdown, the bottom ash system blowdown and the flue gas desulfurization system blowdown. These three waste streams will be discharged to the circulating water system and ultimately to the discharge canal currently in existence. Waste streams which are not discharged to surface waters include the various plant drains and waste waters from various plant washing operations that will take place. These waste streams will be collected and transported to the existing waste water pond and, from there, the waste water will be recycled to the extent possible. Final disposal of this waste water will be through the existing stray irrigation system. The existing waste water pond and spray irrigation field are designed to accommodate the additional use. Runoff from the coal pile facility will be contained on the site and transported to the existing waste water pond. A drainage system is provided for the plant for the runoff from the materials storage areas, the byproduct storage areas, and the construction activity associated with the main structure at Big Bend Unit No. 4. Materials and by-product storage area runoff will be intercepted and contained on site. Runoff from the Big Bend Unit No. 4 main construction area will be contained and pumped to the waste water pond. Other areas subject to construction will employ mitigative measures defined by the conditions of certification attached hereto. A potential concern exists that groundwater flow from the waste water treatment facilities and byproduct storage areas may result in leaching of pollutants into the groundwaters of the State. The groundwater at the existing site has been designated as Class I-B waters. The conditions of certification include a groundwater monitoring program designed to assess the ambient water quality and identify the potential impacts of leachate contamination with respect to the State groundwater quality standards. The impact to the existing water quality as a result of the discharge of the boiler blowdown, bottom ash blowdown and flue gas desulfurization system blowdown streams through the circulating water system to the discharge canal and ultimately to the Bay will be undetectable across the plant, from the point where the circulating water is taken into the plant, combined with the three streams and released at the point of discharge. There will be no measurable change in water quality as a result of these discharges. The flue gas desulfurization blowdown stream and the bottom ash blowdown stream will be subject to treatment to meet State and federal effluent limitations. The flue gas desulfurization system will be treated for pH adjustment, suspended solids removal and oil and grease removal prior to discharge. The bottom ash system will include an adequately sized pond to remove suspended solids so that the effluent limitations will be met. Boiler blowdown will not require treatment to meet applicable effluent limitations. In addition to the treatment methods proposed above, Tampa Electric Company evaluated other options relating to the treatment of these streams to meet water quality standards for these discharges. Alternatives investigated included a zero discharge option, further recycling of the waste streams and various treatment methods to remove heavy metals prior to discharge. The cost of these alternatives ranges from $1.2 million to $1.8 million. Even with the treatment systems in place, there will be no detectable change in water quality from the point of intake to the point of discharge, after addition of the discharges from the three identified waste streams. Tampa Electric Company concluded that based upon these factors, and primarily upon the fact that even with additional treatment there will be no detectable change in water quality from the point of intake to the point of discharge, the expenditures are not justified in this circumstance. Tampa Electric Company requested variances from certain regulations of the Department of Environmental Regulation relating to ground and surface water quality standards. The request for variances from water quality standards for groundwater discharges contained in Rules 17-3.071 and 17- 3.101(1),(3),(4),(8),(9) and (13), Florida Administrative Code, can be resolved by defining a zone of discharge and implementation of the groundwater monitoring program as outlined in the attached conditions of certification. This variance request was therefore withdrawn by Tampa Electric Company at the hearing. The variance request from surface water quality standards contained in Rules 17- 3.061(2)(a) (arsenic), 17-3.121(9) (cadmium), 17-3.061(2)(d) (chromium), 17- 3.121(11) (copper), 17-3.121(16) (iron), 17-3.121(18) (mercury), 17-3.121(19) (nickel), and 17-3.121(26) (selenium), Florida Administrative Code, for the discharges of boiler blowdown, bottom ash blowdown and flue gas desulfurization system blowdown are recommended by the Department of Environmental Regulation to be granted for a period of two years after the start of commercial operation during which time TECO shall institute a study program, including monitoring, in accordance with the attached conditions of certification. The request for variances from surface water quality standards contained in Rules 17-3.061(2)(h) and 17-3.121(7) (lead), 17-3.051 (minimum criteria) and 17-3.061(2) (general prohibition), Florida Administrative Code, were withdrawn by TECO at the hearing. Tampa Electric Company also requesting variances from the Hillsborough County Environmental Protection Commission rules relating to noise level standards and surface water quality standards. No representative of the Hillsborough County Environmental Protection Commission appeared at the hearing. A variance from the noise level standards contained in the Hillsborough County Environmental Protection Commissions's Rule 1-10.04A is requested for the steam blowing operation that is necessary prior to commercial operation of proposed Unit No. 4. This procedure is recommended by the equipment manufacturer to minimize damage to the steam turbine resulting from debris which may accumulate during construction of the unit. The noise levels produced from this steam venting operation vary from unit to unit and it is impossible to accurately predict what the noise levels will be. Violation of the provisions of the Commission's Rule 1-10.04A for short durations during the operation is possible. Tampa Electric Company will institute a notification procedure designed to inform residents in the area that the operation will occur over a short period of time. No adverse impact to residents and the environment in the affected area is anticipated and only minor inconvenience to the residents is expected to occur. The entire operation occurs only intermittently prior to initial start up of the unit and should encompass a period not to exceed thirty (30) days from the start of the steam blowing operation. The surface water quality rules from which TECO seeks a variance from the Hillsborough County Environmental Protection Commission relate to the standards for chromium, lead, iron and arsenic for the discharges of boiler blowdown, bottom ash blowdown and flue gas desulfurization system blowdown from Unit No. 4. This variance request is made for the life of the certification for Unit No. 4. The evidence demonstrates that the three waste streams identified above are discharged to the circulating water system and then to the discharge canal existing at the facility. The request for a variance from these pollutant parameters is based upon data compiled by the applicant and submitted to the Department of Environmental Regulation which shows that ambient water quality existing in Hillsborough Bay contains concentrations of the identified parameters (chromium, iron, and arsenic) in amounts which are already above applicable Hillsborough County Environmental Protection Commission surface water quality standards for Hillsborough Bay. The data concerning lead concentrations is inconclusive. The evidence demonstrates that with the exception of lead, the maximum values contained in the applicant's sampling data for chromium, iron, and arsenic are all above the applicable water quality standards. Access roads on the site which have been constructed for previous projects at the Big Bend Station are capable of assimilating additional traffic caused by the Unit No. 4 construction activities. There is very little opportunity for public access to the site during construction and operation. The vehicular traffic will be intercepted and controlled by a guard system at the entrance to the site on a 24-hour basis. In addition, all other fenced areas will be equipped with locked gates and patrolled by roving guards. Except for intermittent traffic congestion, plant construction is not expected to have an impact on the nearest residential communities of Apollo Beach and Adamsville. There are no historic, scenic, cultural, or natural areas or state parks and recreation areas which will be disturbed by the construction of Big Bend Unit No. 4. The construction of Unit No. 4 and its related facilities will involve the loss of approximately 272 acres of vegetation and habitat on the eastern shore of Hillsborough Bay, some of which has been previously disturbed by construction activities associated with existing Units 1, 2 and 3. Sound levels predicted as a result of construction activities are below the maximum permissible sound levels in accordance with the Hillsborough County noise code limit of 60 dBA during the daytime in a residential area. The majority of construction will take place during daylight hours and no significant noise impact is expected at the surrounding residences from onsite construction activities. Most bird and animal species located near the site are expected to have adjusted to the existing sound levels resulting from Units 1, 2 and 3 operation. Although birds and animals nearest the plant may experience periodic "startle reaction" and move away from the noise source, no measurable effects of construction noise levels on organisms occurring near or beyond the immediate site location are anticipated. The area wide effect of construction and operation on wildlife and vegetation is not expected to be significant. Appropriate steps have been proposed to minimize the environmental impact of construction and operation of Unit No. 4. The Florida Public Service Commission has determined that there is a need in the State of Florida for the electric power to be produced by proposed Big Bend Unit No. 4. The Tampa Bay Regional Planning Council has generally concluded that there are no over-riding objections to the proposal for Unit No. 4 so long as adequate steps are taken to mitigate problems associated with air and water pollution. The Hillsborough County City-County Planning Commission has commented on the project and offered no objections to it. The Division of Archives, History and Records Management concluded that the proposed coal fired power plant is unlikely to affect any archeological or historical sites. The National Marine Fisheries Service has made several recommendations regarding once through cooling concerns including the use of fine mesh screens, but does not object to the overall project. The United States Fish and Wildlife Service expressed concerns similar to those of the National Marine Fisheries Service and also does not object to the overall project. The Department of Veteran and Community Affairs has concluded that the application is generally compatible with the State Comprehensive Plan. The Department of Environmental Regulation has made no recommendation concerning the grant of denial of the variance requests from Hillsborough County Environmental Protection Commission Rules. The Department of Environmental Regulation, the Department of Veteran and Community Affairs and the Southwest Florida Water Management District have all recommended certification of the proposed Big Bend Unit No. 4 subject to the stipulated conditions of certification which are attached to this Recommended Order. At the conclusion of the site certification hearing, members of the general public were given the opportunity to comment upon the application for site certification. No public testimony was offered.
Recommendation Based upon the entire record of this proceeding and the above findings of fact and conclusions of law, IT IS RECOMMENDED THAT: Tampa Electric Company be granted certification pursuant to Chapter 403, Part II, Florida Statutes, for the location, construction and operation of Big Bend Unit No. 4, the associated facilities and the directly associated transmission line, as proposed in the amended application and evidence in the record; The certification be subject to the conditions of certification attached to this Recommended Order as Appendix I; The variance request from the Department of Environmental Regulation's surface water quality standards be granted in accordance with the conditions of certification which are attached hereto; The variance request from Hillsborough County Environmental Protection Commission Rule 1-10.04A governing noise requirements be granted for a period not to exceed thirty (30) days from the commencement of steam blowing operations, conditioned upon Tampa Electric Company's agreement to notify the affected members of the public prior to the steam blowing operation; The variance request from Hillsborough County Environmental Protection Commission surface water quality standards contained in Rules 1-5.04,2. (general), 1-5.04,2.n (chromium), 1-5.04,2.q (iron), and 1-5.04,2r (arsenic) be granted for the life of the certification for Big Bend Unit No. 4; and The variance request from Hillsborough County Environmental Protection Commission surface water quality standards pertaining to lead, Rule 1-5.04,2.p., be denied. Respectfully submitted and entered this 21st day of July, 1981, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1981. COPIES FURNISHED: Lawrence N. Curtin and Robert P. Murray Holland and Knight Post Office Drawer NW Lakeland, Florida 33802 Louis F. Hubener Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Thomas E. Cone, Jr. Blain and Cone, P.A. 202 Madison Street Post Office Box 399 Tampa, Florida 33601 C., Laurence Keesey Department of Veteran and Community Affairs Room 204, Carlton Building Tallahassee, Florida 32301 Arthur C. Canaday General Counsel Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301 Prentice C. Pruitt Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301 Hamilton S. Oven, Jr. Administrator, Power Plant Siting Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE GOVERNOR AND CABINET OF THE STATE OF FLORIDA In the Matter Of: TAMPA ELECTRIC COMPANY POWER PLANT SITING APPLICATION, BIG BEND STATION CASE NO. 80-1723EPP UNIT NUMBER 4 P.A. 79-12. /
Findings Of Fact The Application for power plant site certification was filed by Pinellas County on October 25, 1978. The Applicant proposes to construct a resource recovery facility at which municipal solid wastes will be burned to produce steam-generated electrical energy. The residue from the burning of these wastes will be processed for recovery of metals and other valuable materials. The proposed facility includes a large landfill which will be used for disposal of those portions of the residue not amenable to recovery. In addition, the application includes a directly associated transmission line connecting the proposed facility to Florida Power Corporation's Gandy Substation. The resource recovery plant buildings will be located on approximately 20 acres within Pinellas County's existing Bridgeway Acres Phase I landfill tract. The Phase I landfill site is situated in Northernmost 80 acres of a total of approximately 225 acres just South of 114th Avenue North and West of 28th Street North. Areas of the plant site not previously disturbed by landfilling activities are occupied largely either by pine flatwoods or wet weather ponds. The proposed resource recovery facility will consist of a 50 megawatt steam-electric generating turbine, two 1050 tons-per-day solid waste fired boilers; truck weighing scales; a refuse collection and sewage pit, refuse stoking equipment; magnetic and serrofluid separators; conveyors; a four cell mechanical draft cooling tower utilizing treated sewage effluent; effluent intake and outfall piping and connections; a 161 foot flue gas stack; electro- static precipitators; stormwater retention and treatment ponds; stormwater spray irrigation fields; and sanitary landfill and controlled ditching. A 230 kilovolt transmission line and associated structures will run East, South, and then East of the site for approximately 1 and 1/4 miles. The primary purpose for the proposed facility is to dispose of the county's refuse and trash. There is a clear need for recovery facilities such as that proposed by the Applicant. Moreover, electric system reliability will be increased by the addition of a small generating facility and the cost to the consumer per unit of electricity may be less than that for a similarly sized fossil fuel unit. The Tampa Bay Regional Planning Council stated that the proposed Pinellas County Power Plant and recovery facility was an innovative solution to the complex problem of solid waste management and resource recovery. The Florida Public Service Commission has found that this facility will enhance the electrical reliability of the peninsular grid system and that some savings would be recognized through the use of wastes as fuel rather than coal or oil. The Department of Environmental Regulation has found that construction of the resource recovery facility will permit the closing of current landfills and will reduce the need for future landfill and will in fact serve a recognized need. Primary impacts from site modification will include removal of vegetation and certain animal habitat, replacement of existing surface soils, and additional noise and dust levels. The areas affected, however, have largely been disturbed by human activities previously. It is anticipated that the elimination of putresible waste landfills will reduce the local seagull population. No rare or endangered species have been observed on the site. The reduction of landfill areas is environmentally desirable and area residents, concerned about the presence of landfills near their home, should find the proposed site modification and visual barriers more attractive than the existing landfills. Extensive measures have been incorporated into the proposal and the conditions of certification so as to minimize the environmental impacts from construction and operation. Due to the isolated nature of the proposed site there is very little opportunity for public access during construction and operation. In addition, traffic into the site will be limited and controlled by fencing. The applicant has proposed adequate measures to comply with both State and Federal health and safety requirements. The resource recovery facility is expected to produce the following volumes of water during normal daily operations: Cooling tower blowdown 316 gpm. Boiler blowdown 23 gpm. Cooling tower evaporation and drift 744 gpm. Boiler demineralization background blackflush water 6 gpm. The plant effluents will be discharged to Pinellas Park's South Cross Bayou Sewage Treatment Plant. Any surface water impacts would largely arise from stormwater runoff. Perimeter ditches, a central holding pond, and associated treatment facilities will be used to collect, contain, and treat runoff originating on the site. This collection and treatment system has been planned to be of sufficient size to prevent any stormwater discharge from the site except during periods of extremely heavy rainfall. Groundwater in the vicinity is Class I-B as defined by Section 17- 3.101, Florida Administrative Code. Movement of the shallow aquifer groundwater in the area is generally Northeasterly at a rate of 1 to 10 feet per year. The area of the site is underlain by a clay/marl zone which would tend to slow the vertical migration of leachates. There has previously been an impact on the shallow aquifer groundwater quality in the vicinity of the site due to adjacent landfilling operations and saltwater intrusions. Leaching of the decomposition materials from putrescible wastes has already altered the natural state and quality of the shallow aquifer. Since landfill materials from the resource recovery facility should primarily be boiler residue and non-putrescible wastes it is likely that any groundwater impacts from these new landfill materials will be much less than from previously landfilled putrescible materials. Leachates and drainage will be minimized by allowing water to run off the fill rather than being allowed to percolate through the filled material. Leachate which does form by percolation through an active fill will be accumulated at the low point of the active cell. This accumulation will be pumped directly to the aeration pond and will be contained on site. At no time will raw refuse be deposited in standing water. Wastewater will leave the aeration lagoon and enter two water hyacinth treatment ponds which have been designed to remove nutrients and heavy metals from the runoff waters. Upon leaving the hyacinth ponds, wastewater would be chlorinated for bacteria and virus control and pumped to the land on the Southern portion of the site. Construction activities are expected to produce air pollutants and particulate matter in levels which approximate those generated by the current landfilling activities. During operation, expected stack emissions will include particulate, sulfur dioxide, chlorides, carbon monoxide, and oxides of nitrogen. Odor is not expected to be a problem and control measures have been included in the proposal. An electro-static precipitator has been included for the control of particulate matter. Hydrocarbon emission from the plant will constitute approximately .2 percent of the county's total hydrocarbon emission levels. Due to low temperatures, insignificant quantities of oxides of nitrogen will be emitted. There are no sulfur dioxide emission limitations for incinerators; however, if a sufficient volume of refuse is incinerated, prevention of significant deterioration criteria may be applicable. The Department has conducted a Best Available Control Technology analysis for the resource recovery facility and has proposed a sulfur dioxide emission rate for the facility. During operation, refuse will be sorted for large items or non- combustibles, the remaining refuse will be incinerated. Following combustion, the residue will pass through a resource recovery system designed to extract ferrous and non-ferrous metals. The residue, approximately 2.1 percent by weight of the original raw waste, will be landfilled on site. It is estimated that approximately 1 acre per year will be required for this residue disposal. In the event of a facility shutdown, storage facilities at the processing plant will be sufficient for storage of three to four days of incoming waste. If the plant should remain out of operation beyond three to four days, incoming raw wastes would be landfilled at the site. The facility does not intend to accept hazardous wastes. During and at the conclusion of the site certification hearing, the public was given the opportunity to comment upon the application for site certification. One individual, Arnold Kindt, spoke on behalf on Mainlands Unit #4, a community of homes in the area just Southwest of the proposed facility. Mr. Kindt did not object to construction of the plant, but suggested a committee to anticipate and resolve environmental problems which might arise. The Florida Department of Environmental Regulation, the Public Service Commission, the Division of State Planning and Southwest Florida Water Management District, have all recommended certification of the proposed resource recovery facility subject to conditions. The stipulated conditions are attached hereto as Exhibit 1.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is hereto RECOMMENDED: That a Final order be entered by the Board determining that the proposed site now conforms with existing land use plans and zoning ordinances, and directing the responsible zoning or planning authority to refrain from hereafter changing such land use plans or zoning ordinances so as to affect the proposed site. RECOMMENDED this 12th day of June, 1979, at Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Gaines and South Adams Street Tallahassee, Florida 32301 COPIES FURNISHED: Robert G. Varner, Jr., Esquire Assistant Pinellas County Attorney 315 Haven Street Clearwater, Florida 33516 Sheri W. Smallwood, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Twin Towers Office Building Tallahassee, Florida 32301 C. Laurence Keesey, Esquire Division of State Planning 530 Carlton Building, Room 335 Tallahassee, Florida 32301 Tom Cone, Esquire and L. M. Blain, Esquire 202 Madison Post Office Box 399 Tampa, Florida 33601 Mr. George Wallace 2165 Country Club Ct. N. St. Petersburg, Florida 33710 Mr. Fred Stiles 4020 80th Avenue N. Pinellas Park, Florida 33565 Hamilton S. Oven, Jr., P.E. Administrator Power Plant Siting, DER 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. D. F. Acenbrack, Director Solid Waster Management Board of Pinellas County Commissioners 315 Haven Street Clearwater, Florida 33516 Barrett G. Johnson, Esquire Public Service Commission 101 E. Gaines Street Tallahassee, Florida 32301
The Issue Good Fella’s raises four issues on appeal. Two of those issues involve the administrative hearing process that resulted in the Order: (1) whether the county administrator should have recused himself from acting as the hearing officer in the case below; and (2) whether the Board improperly denied Good Fella’s a hearing on its asserted request to transport solid waste outside of the county. For the reasons explained below, Good Fella’s contentions as to these issues lack merit. Two of the issues raised by Good Fella’s are substantive; (3) whether, by virtue of its contract with the Citrus County School Board (School Board), Good Fella’s is not subject to the restrictions of section 82-78 when disposing of the solid waste generated by the School Board; and (4) whether the findings of fact in the Order were based on competent substantial evidence. Because issue (3) is dispositive of the merits of the case, there is no need to reach issue (4).
The Issue The issue is whether, to the exclusion of fair debate, specific provisions of the Charlotte County comprehensive plan are not in compliance with certain requirements of Chapter 163, Part II, Florida Statutes, and Chapter 9J-5, Florida Administrative Code.
Findings Of Fact Background Introduction Charlotte County Charlotte County is located in Southwest Florida. It is bordered on the south by Lee County, north by Sarasota and DeSoto counties, west by the Gulf of Mexico, and east by Glades County. Charlotte County comprises 693.7 square miles of land and 129 square miles of water--mostly Charlotte Harbor and its tributaries. Although only 18 miles in length from north to south, Charlotte County contains 120 miles of coastline. Charlotte Harbor and its two main tributaries physiographically divide the Charlotte County into eastern, central, and western portions. The eastern portion of the County is bounded on the west by the Peace River and Charlotte Harbor. The eastern portion of the County contains Punta Gorda, which is the sole municipality in Charlotte County. Punta Gorda abuts the southern bank of the mouth of the Peace River and the bank along the northeast corner of Charlotte Harbor. The central portion of the County is bounded on the east by the Peace River, the south by Charlotte Harbor and the Peace River, and the west by the Myakka River. The central portion of the County contains Port Charlotte, which is the major, unincorporated town center in Charlotte County. Port Charlotte encompasses the area from the mouth of the Peace River to the area of the intersection of State Route 776 and U.S. Route 41, although the specific area of this intersection is sometimes referred to as Murdock. The community at the northern bank of the Peace River at U.S. Route 41 is known as Charlotte Harbor. Between the community known as Charlotte Harbor and Interstate 75 is the community known as Harbor View. Farther upstream the Peace River, but still on its north and west bank, and east of Interstate 75, is the community known as Harbor Heights. The central portion of the County also contains large areas of urbanized development-- west of Interstate 75, south of State Route 776, and on both sides of U.S. Route 41--that are served by septic tanks or package plants. The western portion of the County is bounded on the east by the Myakka River and Charlotte Harbor, the south by Charlotte Harbor and Gasparilla Sound, and the west by Gasparilla Sound, Placida Sound, and Lemon Bay, which separate the mainland from the County's coastal barriers. Most of the western portion of the County is also known as the Cape Haze Peninsula. The western portion of the County also contains the coastal barriers dividing Lemon Bay, Placida Sound, and Gasparilla Sound from the Gulf of Mexico to the west. The western portion of the County contains large areas of urbanized development that are served by septic tanks or package plants. These areas are mostly north and west of the Rotonda, which occupies the center of the Cape Haze Peninsula, and south of Englewood, which is a community immediately north of the county line. Charlotte Harbor (including Gasparilla Sound) is an aquatic preserve totaling about 270 square miles (a small part of which is in Lee County). Charlotte Harbor is the second largest estuary in Florida. The water quality of Charlotte Harbor is "fair to good" with "somewhat lower water quality" along the eastern shoreline of the harbor and at the mouths of the Myakka and Peace rivers. Natural Resources and Coastal Planning Element (Natural Resources Element), p. 3-15. Human impacts to these waters have depressed water clarity and elevated concentrations of bacteria, nutrients, and suspended sediments. Phytoplankton productivity is typically limited by the amounts of available nitrogen, as relatively high levels of phosphorus are available from the Peace River watershed, but the limiting factor in certain regions of the tidal rivers, which also have relatively high levels of nitrogen, is light availability. The "most severe threats to water quality and natural systems in Charlotte Harbor" are "population growth and urbanization," which are focused along the coastline of the harbor, and mining, chemical processing, and agricultural activities, which apply to all surface waters in the watershed. Natural Resources Element, p. 3-19. Gasparilla Sound separates Charlotte Harbor from Lemon Bay, which is an aquatic preserve and an Outstanding Florida Water. Lemon Bay is a narrow, 12 square-mile body of water running about 13 miles between the coasts of Charlotte and Sarasota counties and the coastal barriers, which range from 1/8th of a mile to 1.2 miles off the mainland. The average depth of Lemon Bay is six feet at mean high water. The water quality of Lemon Bay is "generally good," but only fair to poor for dissolved oxygen and fecal coliform bacteria in the bay waters and mouths of the tributary creeks. The urbanized creeks of the Englewood area also have high nutrient levels. Natural Resources Element, p. 3-23. Charlotte County is relatively low-lying with elevations from 0 feet at the Gulf coastline to 75 feet in the northeast section. However, the highest areas of the County are in the extreme eastern end of the County, which is very lightly populated and bears relatively low densities on the Future Land Use Map (FLUM). Nearly the entire population of Charlotte County resides at elevations of less than 15 feet. Natural Resources Element, Map 3.13. County soils are poorly drained, so that 97 percent have "severe limitations" for septic tank drainfields. Future Land Use Element (FLUE), pp. 1-5 and 1-49. The only soil rated as "moderate" for septic tank drainfields is Orsino fine sand, which covers less than one percent of the County--mostly along the Prairie Creek and Alligator Creek east of U.S. Route Infrastructure Element, p. 4-138. Most of the County is susceptible to flooding; the 100-year floodplain encompasses most of the urbanized area of the County. On June 23, 1995, for instance, a cluster of thunderstorms not associated with a tropical storm or hurricane produced 15 inches of rain over nine hours. The resulting flood damaged $2.5 million of public property (mostly roads, but including a 12-inch water main that was first exposed and then ruptured by rushing water) and $1 million of private property. As reflected on Natural Resources Element Map 3.16, nearly the entire coastline, including that along Charlotte Harbor, is within the hurricane vulnerability zone for a Category 1 hurricane; in fact, most of the coastline is within the hurricane vulnerability zone for merely a tropical storm. The County has designated areas within the hurricane vulnerability zone for Category 1 and tropical storms as its Coastal High Hazard Area (CHHA). FLUE, p. 1-64. Except for parts of the northern end of the central part of the County and the southern end of the eastern part of the County, the entire County west of Interstate 75 is in the hurricane vulnerability zone for all storms up to a Category 3 hurricane. According to FLUE Map 1.17, the CHHA is extensive in Charlotte County. For the western part of the County, the CHHA encompasses all of the barriers and nearly the southern half of the Cape Haze Peninsula. For the central part of the County, the CHHA encompasses nearly one-quarter of the coastal area between State Route 776 and U.S. Route 41, a thin band to the east (along the northern end of Charlotte Harbor and the north bank of the Peace River), and a thicker band to the west along the north bank of the Myakka River. For the eastern part of the County, the CHHA encompasses a thin band along the east bank of the Peace River and along the northern end of Charlotte Harbor around Punta Gorda and a thicker band along the remainder of the east bank of Charlotte Harbor south of Punta Gorda. Running parallel to the coast, parts of two coastal barriers--one a peninsula and the other an island--and a bridgeless barrier island chain separate the Cape Haze Peninsula from the Gulf of Mexico. The northernmost coastal barrier is Manasota Key, which is a peninsula connected to the mainland in Venice. The southern 4 miles of Manasota Key are in Charlotte County. The southernmost barrier is Gasparilla Island, which is an island. The northern 1.8 miles of Gasparilla Island are in Charlotte County. Manasota Key and Gasparilla Island are connected by roads to the Cape Haze Peninsula. Located between Manasota Key and Gasparilla Island is a chain of bridgeless barrier islands known, from north to south, as Thornton Key, Knight Island, Bocilla Island, Don Pedro Island, and Little Gasparilla Island (Don Pedro island chain). (Sometimes Palm Island is added to this list, although it may signify an alternative name rather than another historic island.) At present, the Don Pedro island chain is connected by land, but these islands can be separated by water in very high tides and were more continually separated by water in the recent past. Stump Pass divides the Don Pedro island chain from Manasota Key, and Gasparilla Pass divides the Don Pedro island chain from Gasparilla Island. About 90 percent of the Don Pedro island chain is within the hurricane vulnerability zone for a tropical storm. The Don Pedro island chain is part of a highly dynamic system. For example, Stump Pass has migrated south 1.3 miles over a 100-year period ending in 1984. With respect to the area within Charlotte County, Manasota Key contains 59 acres of active dunes, the Don Pedro island chain contains 228 acres of active dunes, and Gasparilla Island contains 24.3 acres of active dunes. Natural Resources Element, p. 3-148. The widths of all three coastal barriers vary from 80 to 2000 feet. The northern two miles of Manasota Key have withdrawn up to 100 feet during the last century. The southernmost mile has recently been even more dynamic, eroding 40 to 170 feet from 1953 to 1975. The area in between built up 20 to 40 feet during the last century. Similarly, areas of erosion and accretion characterize different parts of Gasparilla Island in Charlotte County. The Don Pedro island chain has been cut by at least five different inlets in the 100-year period ending in 1981. Inlets or passes now closed are former Bocilla Pass on Knight Island, Blind Pass between Knight and Don Pedro islands, and Little Gasparilla Pass between Don Pedro and Little Gasparilla islands. With respect to the Don Pedro island chain, the County states: "Generally, the beach areas one-half to 1 mile north and south of inlets are the most dynamic of all on barrier islands and must be considered high-hazard zones for any structures. Low elevations make the island vulnerable to flooding." Natural Resources Element, p. 3-148. The Don Pedro island chain provides about 12.5 miles of Gulf shoreline and is separated from the mainland by as little as 200 feet of water. A bridge ran to the islands until removed by the Army Corps of Engineers in the 1960s during construction of the Intracoastal Waterway. Beach renourishment projects have enjoyed different levels of success in meeting the expectations of their engineers. In the most recent such project, Palm Island Resort conducted a relatively small project at the north end of its island in 1995, but the additional sand naturally transported offsite within one year. Natural Resources Element, pp. 3-153 and 3-159. 2. County's Planning Challenges Although generally in good condition, the surface waters of Charlotte County present a planning challenge to Charlotte County, which attempts to "continue to provide water for all the various human needs--residential, agricultural, and industrial--without damaging the natural systems which supply the water and make Florida a desirable place in which to live." Natural Resources Element, p. 3-40. The County recognizes that the "primary threats to [its] surface waters include non-point source pollution generated by urban and agricultural runoff, leachate from septic tanks and package wastewater treatment plants, erosion from improper land clearing activities, upstream sources of contamination (particularly phosphate mining in the Peace River Basin), and historic construction of dead-end finger canals." Id. The planning challenges faced by Charlotte County are complicated by its self-described status, with such other communities as Cape Coral and Lehigh Acres, as a "platted lands" community. During the 1950s, 1960s, and 1970s, large- scale developers platted vast amounts of land into individual lots and sold them to large numbers of persons. Among the most notable developers of Charlotte County land were the Mackle Brothers and General Development Corporation (GDC), which has been succeeded by Atlantic Gulf Communities Corporation. GDC subdivided the 185 square-mile Port Charlotte subdivision--nearly one-sixth the area of Rhode Island--in the central and western parts of the County, as well as in adjacent Sarasota County. The portion of this massive subdivision in Charlotte County contains 118,254 lots and parcels, of which 88,543, or about 75 percent, remain vacant. Another notable developer was the Cavanaugh Leasing Corporation of Miami, which developed Rotonda West. Marketed as a "self-contained circular community of 50,000," the Rotonda West development, with its surrounding subdivisions, totals 26,260 lots, of which 24,226 remain vacant. Seven subdivisions, including the two already noted, account for 186,001 total lots, of which 145,639 remain vacant. As acknowledged in the FLUE data and analysis in the comprehensive plan: The overplatting of land has made achieving growth management objectives very difficult. For the most part, development has followed the extension of potable water lines in Charlotte County. Therefore, the provision of infrastructure appears to be the most effective tool for directing where, when, and at what intensity development will proceed. The growth management strategy within this comprehensive plan utilizes the provision of infrastructure as the primary tool for managing growth and development in Charlotte County. It is referred to as the Urban Service Area strategy. FLUE, p. 1-13. Of the total of 443,968 acres of existing land uses in Charlotte County, the five largest categories are agricultural--229,695 acres; park, recreation, or refuge-- 91,269 acres; vacant-60,317 acres; other (such as roads, canals, and lakes)--33,224 acres; and residential--18,844 acres. Commercial land uses total only 1337 acres--less than the 2814 acres in mining and 1501 acres in industrial. FLUE, Table 1.9. Over 80 percent of the County's assessed valuation is derived from residential properties, which is the highest proportion in Florida, for which the average is only 66 percent. FLUE, p. 1-68. The magnitude of the planning challenges confronted by Charlotte County is largely driven by residential development. The County's population grew in the 1980s from 58,460 to 110,975, doubling as it has in every decade since the 1950s. FLUE, Chart 1.1. During the 1980s, Charlotte County led the nation in population growth with nine percent annual increases. FLUE, p. 1-67. The population of Charlotte County is largely elderly; in 1990, one-third of the residents were at least 65 years old. FLUE, Chart 1.4. No other county in Florida has a greater percentage of residents at least 65 years old, and only one county in the United States has a higher percentage of residents at least 65 years old. Almost half of the County's population is over the age of 54 years; its median age of 53.7 years is the highest in Florida. The large population growths experienced by Charlotte County are due to a net in-migration because the County had 2904 more deaths than births between 1990 and 1994. County personal incomes are bunched in the middle. Only 7.5 percent of County households live below the poverty line, which is second lowest in Florida. But only 5.8 percent of County households have incomes over $75,000; the average in Florida is 10 percent. Charlotte County has a low labor force participation rate (42 percent versus the Florida average of 60 percent), and County employment is concentrated in the low- paying areas of retail, services, and construction (85 percent versus the Florida average of 60 percent). FLUE, p. 1-67. Combining these factors with the 62nd lowest millage rate in Florida and few industrial and commercial properties on the tax rolls leaves Charlotte County with a fairly narrow tax base. FLUE, p. 1-68. All of these conditions contribute to the difficulty of meeting the planning challenges presented by extremely large numbers of prematurely platted lots. As the County has addressed this problem: There are no absolute solutions for the problems associated with the premature platting and sales of land. When the original developers go bankrupt, as many inevitably do, local governments, taxpayers, and ratepayers are left with the bill. Must they honor the obligations made by the original developer? Can a local government simply turn its back upon those customers? There are no easy answers to these questions which have legal, political, and economic implications. FLUE, p. 1-100. 3. County's Planning Strategies After reviewing several possible planning strategies, the County chose the Urban Service Area (USA) strategy as the key component of its overall strategy to deal with the problem of large numbers of prematurely platted lots, FLUE, p. 1-104, and its "primary growth management tool." FLUE, p. 1-132. The County has refined its urban-containment strategy since adopting its first comprehensive plan under the 1985 Local Government Comprehensive Land Development Regulation Act, Chapter 163, Part II, Florida Statutes (Chapter 163), in 1988. In the 1988 plan, Charlotte County adopted an "urban growth boundary" that encompassed all of the platted lands within a 215 square mile area. FLUE, p. 1-132. In 1989, Respondent Department of Community Affairs (DCA) challenged the 1988 plan largely on the ground that it did not discourage urban sprawl. Following a lengthy hearing, Charlotte County and DCA entered into a Joint Agreement on Remedial Actions and Sanctions. On March 15, 1990, the Administration Commission entered a final order determining that portions of the 1988 plan were not in compliance with Chapter 163 and incorporating the remedial agreement into the order. Implementation of the agreement was difficult, and the Administration Commission did find the plan to be in compliance until May 1994. The main theme of the remedial actions was to encourage development where public facilities are available and physical conditions are most suitable and discourage development of other areas within the County. Accordingly, Charlotte County decreased densities in outlying areas, including the Don Pedro island chain. Establishing the USA as the major part of its urban- containment strategy, the County reduced the former urban growth area by 28 square miles. Even so, the still-vast 187 square-mile USA encompasses nearly the entire County west of Interstate 75 and about 25 square miles east of Interstate 75. FLUE, p. 1-133 and FLUM Series No. 2. The USA is divided into 97 square miles of Infill Areas (13 of which are in Punta Gorda) and 90 square miles of Suburban Areas. The designation of 84 square miles of Infill Areas within the unincorporated County better corresponds to the 79 square miles projected to be needed for residential growth through 2010. However, this growth management strategy likely will not result, in the planning timeframe, in compact urban development featuring viable mixed uses in functional proximity to each other due to three factors: the large numbers of already-sold platted lots, the lack of resources to confront this problem more directly, and the urbanization-- almost inevitably in an inefficiently sporadic pattern due to the excessive designated densities as compared to the projected population growth--of an additional 90 square miles of Suburban Area within the USA. The County's ability to discourage urban sprawl is compounded by two limitations upon its ability to control the provision of infrastructure: the prevalence of private utilities providing central sewer and water services and the prevalence of Municipal Services Taxing Units (MSTUs) and Municipal Services Benefits Units (MSBUs) funding road and drainage projects. Although the use of MSTUs and MSBUs to provide the infrastructure crucial to guiding the location and timing of urbanization is obviously not unique to Charlotte County, the extensiveness of these alternative means of providing such infrastructure may be. The County's ability to control the timing of the extension of central water and sewer expanded with the 1991 acquisition of General Development Utilities. However, 12 of the 14 utilities supplying potable water in Charlotte County are privately owned. Infrastructure Element, p. 4-106. According to Infrastructure Element Map 4.23, the certificated territory of Charlotte County Utilities covers about 70 percent of the central portion of the County and about 20 percent of the western portion of the County. The City of Punta Gorda has the certificated territory for the relatively small area of the eastern portion of the County that is served by central water. Infrastructure Element Table 4.18 indicates that, in 1995, Countywide average daily demand was 14,605,950 gallons of potable water, including Charlotte County Utilities with an average daily demand of 6,070,990 gallons and the City of Punta with an average daily demand of 3,168,000 gallons. Thus, private utilities supply a little more than one-third of the potable water in the entire County. The situation is worse with respect to central sewer. Two public utilities and seven private utilities supply central sewer. Infrastructure Element Map 4.26 indicates that the certificated territories for central sewer are much smaller than are those for central water. Relatively little of the western portion of the County has central sewer, and the territory of Charlotte County Utilities is significantly smaller than the territory served by Rotonda West Utilities Corp. For the central portion of the County, the territory of Charlotte County Utilities is significantly larger than that of the other major utility, Florida Water Services Corp.--Deep Creek. The City of Punta Gorda has most of the territory for central sewer in the eastern part of the County. Average daily demand in 1995 totaled 6,283,960 gallons including Charlotte County Utilities receiving 1,950,470 average gallons daily and the City of Punta Gorda receiving 2,038,580 average gallons daily. Thus, private utilities treat a little more than two-thirds of the wastewater, although, considering the 514,300 average gallons daily treated by package treatment plants (Infrastructure Element, Table 4.25), the share of the private utilities is a little less. A precursor to community development districts, for which developers form entities for the construction and operation of certain public facilities, such as roads and drainage, MSTUs and MSBUs are also means by which residents receiving certain services pay for those services, primarily roads and drainage. An MSTU differs from an MSBU because the former imposes an ad valorem tax and the latter imposes a tax based on other factors. Capital Improvements Element, p. 8-9. As the County notes, "[t]he extent of the County's use of MSTUs and MSBUs is unique in Florida and perhaps in the country." Capital Improvements Element, p. 8-8. Both sources of revenue funded about $7.2 million in local roads and drainage in 1995-96. Capital Improvements Element, p. 8-8. This is a significant source of funding for roads and drainage. For the five fiscal years ending in 2002, the total County expenditures for "street/drainage/waterways/other projects" are $10.7 million and for "road improvements/M&O" (presumably maintenance and operation) are $59.4 million/ during the same five-year period, MSBUs and MSTUs provide $10.6 million of total revenues of $174.7 million. Capital Improvements Element, Capital Improvement Program, p. C-2. Thus, unless a portion of the $5.6 million in "natural resources" expenditures during this five-year period are allocated to drainage, MSTUs and MSBUs provide all of the funds for County-funded drainage projects and an undeterminable percentage (due to the grouping of streets, drainage, waterways, and other projects under one item)-- substantially less than 15 percent--of the funds for County- funded road projects. Id. As the County observes, "[t]he use of the rural MSBUs makes living in rural Charlotte County competitive with living in the [USA] and detracts from the ability to contain growth within the [USA]." Capital Improvements Element, p. 8-9. Public Participation The planning process that culminated in the new plan began with the County's preparation of its Evaluation and Appraisal Report (EAR). In this process, the County evaluated the success of its plan, identified any new planning challenges that it faces, and developed new planning strategies to meet these challenges. Charlotte County began the EAR process in 1993. Completing the EAR in 1995, the County transmitted it to the Southwest Regional Planning Council, which determined in January 1996 that the EAR was legally sufficient. In developing a new plan based on the EAR, the County conducted 115 public meetings from 1995-97. All interested persons could speak at these meetings. Additionally, County residents had an unusual opportunity for input into the plan because of the County's reliance on the Charlotte Assembly, whose membership represented a broad range of County residents who wanted to participate directly in the preparation of a new plan. The Charlotte Assembly worked on the plan from October 1996 through the summer of 1997. On March 18, 1997, the County Commissioners transmitted the proposed plan to DCA. Following receipt of the report of DCA's objections, recommendations, and comments, the County Commissioners adopted the plan on October 7, 1997. There is no evidence in the record of any shortcomings in the contents of the public-participation procedures adopted by Charlotte County, nor in its implementation of these procedures in the planning process that produced the plan. Standing of Petitioners Plummer Eugene Plummer (Plummer) is the president of The Historical Knights Bldg., Inc. He owns a majority of the shares of the corporation, which owns the real property located at 2600 Bayshore Boulevard (the Site). The Site is in the Charlotte Harbor Redevelopment Area. At the time of the hearing, a two-story building constructed in 1923 was located at the Site, as well as the Knight Dock, from which Confederate forces had shipped cattle during the War Between the States. However, several months prior to the hearing, in February 1998, the County had razed an older building located at the Site known as the Mott Willis Building. The Mott Willis Building was originally constructed as the first general store in Charlotte County. At different times, Mr. Willis and members of the Knight family lived upstairs. In the 1920s, the original building was enlarged by its envelopment within a larger general store, which had fallen into disrepair for the 20 years preceding its demolition. At the time of its demolition, the Mott Willis Building was unsafe, although Plummer had identified several possible sources of funding a rehabilitation effort to convert the building to a children's theater, after which he and his corporation intended to donate the building to the County. There is no doubt of the historic significance of the Mott Willis Building. On December 16, 1993, the County passed an ordinance designating the Mott Willis Building as historically significant. In 1996, the building was listed in the Florida Master Site Plan. And, on May 30, 1997, the Mott Willis Building became the first building in Port Charlotte to be listed in the National Register of Historic Places. Plummer testified that the petitioners in DOAH Case No. 98-1634 are he and The Historical Knights Bldg., Inc. (Tr. p. 179.) Plummer testified that he attended code enforcement hearings in connection with the demolition of the Mott Willis Building. He estimated that the hearings ended in 1996. (Tr. p. 180.) He testified that he never appeared before the County Commission, but sent them a letter. In response to a question asking when he sent the letter to the County Commission, Mr. Plummer answered, "It was back earlier"--in apparent reference to the hearings of the Code Enforcement Board. (Tr. p. 180.) In response to the next question--"How far back in relation to the code enforcement board hearings?"--Mr. Plummer replied, "It was after." He testified that he had a copy of the letter and offered to bring it to the hearing on a subsequent day, but did not do so. The County received no document from Plummer or The Historical Knights Bldg, Inc., containing objections, recommendations, or comments concerning the plan during the review and adoption period, which was from March 18 to October 7, 1997. Plummer never personally addressed the County Commission during this period, nor any other earlier period, concerning the preservation of the Mott Willis Building. However, the preponderance of the evidence supports the finding that, in the months immediately preceding the demolition of the Mott Willis Building, including the period between March 18 and October 7, 1997, Plummer presented to the Code Enforcement Board objections, recommendations, and comments concerning the imminent demolition of this building. The preponderance of the evidence, including reasonable inferences, establishes that Plummer's objections, recommendations, and comments included a claim that the Board, using the power of the County, was proposing the demolition of the building in violation of provisions of the former comprehensive plan, including a provision of the Conservation and Aquifer Recharge Element that was contained in the former plan. On the other hand, the evidence, including reasonable inferences, establishes that Plummer was unaware of the plan-adoption process that was underway while he was trying to preserve the Mott Willis Building from demolition. Otherwise, Plummer would likely have updated his reference in his petition, although, to some extent, he appears to have long labored under the misimpression that this forum presents him an opportunity for redress of the County's failure, as Plummer perceives it, to comply with the provisions of its own comprehensive plan. Also, Plummer proved diligent in the defense of the Mott Willis Building, and he likely would have been an active proponent of stronger historical provisions in the present plan, had he known that the planning process was underway. On these facts, including inferences, it is impossible to find by a preponderance of the evidence that Plummer or The Historical Knights Bldg., Inc., ever submitted directly to the County Commissioners any recommendations, objections, or comments to the plan during the period between transmittal and adoption. However, two factual questions remain concerning the standing of Plummer or The Historical Knights Bldg., Inc. The first factual question is whether the objections, recommendations, or comments that Plummer submitted to the Code Enforcement Board were effectively submitted to the local government. If so, a second factual question is whether the contents of these objections, recommendations, and comments sufficiently pertained to the pending plan as to confer standing on Plummer or The Historical Knights Bldg., Inc. First, regardless of the awareness among members of the Code Enforcement Board of the comprehensive plan, the Board is part of the local government of Charlotte County and is an important resource available to the County Commission in the preparation of the plan, as the Board's business routinely involves matters pertinent to comprehensive planning. Thus, for the purpose of determining standing in a plan-challenge case, the objections, recommendations, and comments that Plummer submitted to the Code Enforcement Board were submitted to the Board as an agent or subdivision of the County and, thus, to the County itself. The more difficult factual question is whether Plummer's objections, recommendations, and comments sufficiently pertained to the plan as to confer standing to challenge the plan. Unaware of the plan-adoption process then underway, Plummer clearly did not offer any comments directly on the proposed plan. However, his objections, recommendations, and comments in defense of the Mott Willis Building were clearly germane to the comprehensive planning process, especially as it applied to the County's treatment of its historic resources. Plummer's objections, recommendations, and comments focused narrowly on the single issue of one important historic resource, at least one pertinent provision of the former plan protecting historic resources, and the adequacy of the County's commitment to the preservation of one of its most distinctive historic resources. The ensuing destruction of this historic resource, although possibly justified under the facts (which were not litigated at the final hearing in these cases), nonetheless reinforces the urgency of Plummer's repeated requests that the County address squarely the issue of the preservation of its historic resources and the adequacy of its present policies and its implementation of those policies. Based on these facts, Plummer and The Historical Knights Bldg., Inc., are affected persons with standing in DOAH Case No. 98-1634GM. Data and Analysis Historic Resources The Historic Preservation Element notes that the Florida Master Site File contains 462 historic and archaeological sites in the County. Of the 340 of these sites that are historic structures, only 81 are in the unincorporated County. Of the five of these 340 historic structures that are also listed on the National Register of Historic Places, only two of them are in the unincorporated County. Historic Preservation Element, p. 9-5. The Historic Preservation Element traces the history of Charlotte County from 12,000 B.C. when it marked the northern end of the territory occupied by the Calusa Indians. Many of the archaeological sites pertain to the Calusa period, which ended when these native people disappeared early in the 18th century--victims of European-borne disease, slave raids, and warfare. The Spanish arrived in Charlotte County in 1513. Spanish Cubans established fish "ranches" in Charlotte Harbor for the purpose of supplying fish to Cuba. In 1763, the English assumed control of Florida, which was acquired by the United States in 1821 and became a State in 1845. During the War Between the States, Union forces encamped on an island to enforce a blockade of Charlotte Harbor, from which Confederate troops shipped cattle, timber, and salt. By 1863, more than 2000 head of cattle were shipped each week to the Confederacy. During the last week of 1863, two union ships made their way up the Myakka River and engaged in a skirmish with Confederate troops. By the end of the war, cattle ranching had established itself in the area, although fishing remained an important commercial activity. Among the cattle docks occupying the shores of Charlotte Harbor was Knight's Pier, around which Charlotte Harbor grew. In the late 1880s, Punta Gorda was founded, and phosphate was discovered in the upper Peace River. The railroad reached Punta Gorda in 1886 and, with it, the area's first tourists. Historic Preservation Element, pp. 9-12. The plan notes that the County established an Historic District by ordinance. Among the "major historical and archaeological sites" identified by the Charlotte County Historic Preservation Board are the Knight Dock (modern replacement); Willis Store, "a two-story frame house that was constructed circa 1923 to replace the original Knight general store which was built a year after the dock in 1863"; and the Willis home, "a two-story frame house that was constructed between 1910 and 1920 on property west of Bayshore Drive and south of Edgewater Drive." Historic Preservation Element, p. 9-17. The Historic Preservation Element contains Maps 9.1 and 9.2, which depict the general location of historic structures and archaeological sites, using seven-unit alphanumeric codes for each structure or site. Historic Preservation Element Table 9.1 supplies the "primary name" and "category of property": i.e., "structure" or "building." However, the "primary name" is, in nearly every case, merely the address of each property. Absent knowledge of the street address of a property or, even less likely, its Florida Master Site File code number, it is impossible to determine if the table, and thus the maps, include a specific property, such as the Mott Willis Building, or the Site. FLUE Table 1.12 lists "historical structures," but omits the Mott Willis Building. Sanitary Sewer The relevant history of wastewater management is that outhouses and cesspools yielded to septic tank systems, and, largely in the 1970s and 1980s, septic tank systems in some areas yielded to large centralized wastewater treatment systems, whose construction was often aided by federal funding under the Clean Water Act, as it is now known. However, septic tanks and even cesspools remained the means of wastewater management for 25 million U.S. households in 1990. Columbia Exhibit 10, p. 3. Residents of Charlotte County remain largely dependent on septic tank systems. County-owned Charlotte County Utilities, which is the largest sewer provider, serves 11,278 central sewer customers, as compared to 40,000 septic tank systems in operation in the County. In fact, the number of County septic tank systems exceeded by 3000 persons the number of customers served by all central sewer providers, including the 10,956 customers served by the City of Punta Gorda. Infrastructure Element, Table 4.23. Although typically associated with single family residential use, about 20 percent of the septic tank systems in Charlotte County serve commercial and institutional uses, such as strip malls, schools, and churches. A conventional septic tank and drainfield, such as the typical system in use in Charlotte County, represent an anaerobic, onsite wastewater disposal system. A conventional septic tank system uses a tank to separate settleable and floatable solids from wastewater. The wastewater then passes into the drainfield through an outlet, which is placed above the settled solids and below the floating grease and other scum. The remaining solids and semi-solids, collectively known as septage, must be periodically pumped out of the tank, treated with disinfectant (normally lime), and landspread at approved sites. In March 1993, the Department of Health and Rehabilitative Services published a consultant's evaluation of onsite wastewater disposal systems in Florida (HRS Report). County Exhibit 64. The HRS Report evaluates septic tank systems, as they operate in a variety of installations illustrative of the design, installation, and operation of such systems in Florida. One of the major purposes of the HRS Report is to examine the impacts of septic tanks systems on groundwater, which provides 87 percent of Florida's public potable water and 94 percent of its private supplies. County Exhibit 64, p. 1-1. As already noted, some treatment of wastewater occurs in the septic tank, but most of the treatment takes place after the wastewater enters the drainfield's unsaturated zone. Here, various biological, chemical, and physical processes effect the primary treatment prior to the entry of the leachate into the groundwater. As the report notes, "the 'soil is the system.'" County Exhibit 64, pp. 4-1 and 4-5. The composition of residential, as opposed to commercial, wastewater entering the septic tank varies, but within typical ranges. Wastewater contains nitrogen and phosphorous, including nitrate nitrogen, which may reduce the oxygen-carrying capacity of the blood of infants; toxic organics in the form of household cleaners, many of which persist in the aqueous environment and are known carcinogens; heavy metals, such as lead, copper, cadmium, and arsenic, which are toxic to humans; and pathogenic bacteria and viruses, which can cause illness in humans. The infiltration process that takes place between the release of the wastewater from the septic tank and its entry into the groundwater transforms organic and ammonium nitrogen to nitrate by microorganisms operating in aerobic conditions. The typical septic tank system removes about 20 percent of the nitrogen from the effluent. However, nitrate moves freely through the groundwater, and the reduction of nitrates in groundwater occurs primarily through dilation. County Exhibit 64, p. 4-34. The septic tank system removes only 4-8 percent of the phosphorus from raw wastewater. Moreover, soil has a finite ability to retain phosphorus, which, with continued loading, will move deeper into the soil. County Exhibit 64, p. 4-34. Septic tank systems more effectively eliminate bacteria that enter the soil. The elimination of bacteria is accomplished partially by low temperatures and low levels of nutrients and energy sources. Although survival rates for pathogenic bacteria are extremely variable--sometimes in excess of six months in unsaturated, unnutrified soil--"most, if not all," pathogenic bacterial indicators die within three feet of the infiltrative surface. However, improper siting of the drainfield can result in the introduction of pathogenic bacteria into the groundwater, in which pathogenic bacteria may survive sufficient periods of time--from seven hours to 63 days--to travel as much as 100 feet. County Exhibit 64, pp. 4-36 through 4-37. Viruses occur in less than two percent of human stool excreted in the United States, but, when they occur, they occur in large numbers. If retained in the soil, viruses typically become inactivated at a daily rate of 30 to 40 percent. However, viruses can penetrate more than three meters of unsaturated soil. County Exhibit 64, pp. 4-37 through 4-40. Human viruses associated with the leachate from septic tanks live for 30-60 days in Charlotte soils. Toxic organic compounds found in septic tank leachate include toluene, acetone, and xylenes, which may be found in solvents, cleaners, and perfumes. No study has examined the efficiency of septic tank system treatment of toxic organics. A model drainfield removed less than 10 percent of the toluene. County Exhibit 64, pp. 4-40 through 4-42. Little information exists concerning the efficacy of septic tank system treatment of surfactants and heavy metals. County Exhibit 64, pp. 4-43 and 4-44. For all contaminants, though, the efficacy of the septic tank system treatment is "dependent on the properties of the soil underlying the infiltrative surface." County Exhibit 64, p. 4-46. Soil characteristics that interfere with the treatment process include moisture content, organic content, pH, structure, particle size, and pore size distribution and continuity. Satisfactory performance occurs "where an aerobic, unsaturated zone of medium to fine texture soils, 2 to 5 ft. in thickness, is maintained below the infiltrative surface during operation." County Exhibit 64, p. 4-47. However, even under these optimal conditions, phosphorus and metal retention are finite processes, and the transport of pathogenic viruses is largely unknown. On balance, the HRS Report finds that "[p]ublic health and environmental risks from properly sited, designed, constructed, and operated septic tank systems appear to be low. However, use of conventional septic tank system technology in high density developments or environmentally sensitive areas could increase these risks to unacceptable levels." County Exhibit 64, p. 4-47. Surveying Florida soils, the HRS Report notes that about three-quarters of state soils have "severe or very severe limitations" for conventional septic tank system design--the most common limitation being seasonal wetness or shallow groundwater. County Exhibit 64, p. 4-51. The consultants and the Department of Health and Rehabilitative Services conducted several field studies of the effects of septic tank systems upon groundwater. Among the conclusions of this research are that conventional septic tank systems "will be prohibited" in areas with sandy soils and relatively high water tables; high density installations of septic tank systems present the "potential for nitrate contamination" of the groundwater after 20-30 years of continued use of the system (the lengthy period of time due to the slow groundwater velocities); nitrogen is particularly difficult to retain, even in 2-4 feet of unsaturated, suitable soil and after careful distribution of the effluent to the drainfield; removal of fecal coliform bacteria is "nearly complete" in two feet of unsaturated, suitable soil; and viruses are likely to pass through the sandy soils and enter the groundwater, although their rate of transport may be relatively slow, as compared to the rate of transport of other contaminants. County Exhibit 64, pp. 4-91 through 4-92 and 9- 3 through 9-4. As already noted, Charlotte County has only one soil that is not "severely limited" for septic tank use, and this sand is found in only 0.8 percent of the County. Reflective of the unsuitability of Charlotte County for septic tank use, the water table in the County is close to the surface and "highly susceptible to groundwater contamination." Infrastructure Element, p. 4-93. Containing the "highest quality groundwater in the county," as compared to deeper aquifers, the water table, or surficial, aquifer contains over 1 billion gallons of good quality potable water. However, the water table aquifer is the most susceptible to contamination from such point sources as landfills, percolation ponds for sewage effluent disposal, land application of sewage effluent and sludge, industrial sites, and underground storage sites, and from such nonpoint sources as septic tank systems, agricultural and residential use of fertilizers and pesticides, and saltwater intrusion. Infrastructure Element, pp. 4-83 and 4-93. Older septic tank systems present even greater risks to human health and the environment for two reasons. First, the useful life of conventional septic tank systems, such as those installed in Charlotte County, is no more than 20 years, assuming regular maintenance. Septic tanks should be pumped out no less frequently than every five to eight years. Infrastructure Element, p. 4-158. However, septic tank owners typically forego regular maintenance or periodic inspections until catastrophic failure, so inefficient filtration may begin much sooner than 20 years and continue unnoticed for some time. Also, as noted in the HRS Report, the capacity of the soil to retain phosphorus is finite, and the potential for nitrate contamination becomes much greater after 20 years. Second, older septic tank systems were installed under a much more lax regulatory scheme that fails to assure reasonably proper functioning of the drainfield. Of the 24,000 septic tank systems installed prior to 1983, County employees have estimated, based on periodic inspections, that 70 percent (16,800) of septic tank systems have insufficient separation between the water table and drainfield. Up to 1983, regulations required only six inches separation between the bottom of the drainfield and the top of the wet season water table. In 1983, regulations increased this separation to 24 inches. The 16,800 septic tank systems with insufficient separation routinely supply the water table with a variety of contaminants harmful to the health of County residents and visitors and the water resources of the County. Regulations also now require greater separation between the drainfield and surface waters, including canals and swales that hold water for more than 72 hours after a storm event ends. Regulations required a 25-foot setback in 1965, a 50-foot setback in 1972, and a 75-foot setback in 1983 (although 50 feet remained acceptable for lots platted in 1972 or before). Presently, 10,000 septic tank systems are within 150 feet of surface waters. Inadequate setbacks, especially when coupled with six-inch separations between the drainfield and the water table, do not adequately protect the County's surface waters from contamination from septic tanks. The age of the septic tanks in Charlotte County, coupled with the age of the plats, also impacts the permitted density of septic tanks. Prior to 1975, state law imposed no requirements for minimum lot size for septic tank systems. In 1983, when the separation between the drainfield and water table was increased to 24 inches, state law mandated that the minimum lot size for septic tank systems was 1/4 acre or about 10,000 square feet. However, most studies conclude that the minimum lot size, to prevent the pollution of groundwater and surface waters, is 1/2 to 1 acre. Despite this fact, Charlotte County continues to allow owners of 10,000 square- foot lots to use conventional septic tank systems, if they also have central potable water. Infrastructure Element, p. 4-141. These densities, together with the inadequate separation of drainfields and water tables and inadequate setbacks of drainfields from surface waters, multiply the risk presented by septic tank systems to human health and environmental resources. Based on this data and analysis, Charlotte County divided septic tank systems into two groups: those installed prior to 1983 and those installed in 1983 and later. This distinction is amply supported by the data and analysis. However, the data and analysis do not justify unconditional reliance upon conventional septic tank systems installed in 1983 and later. Even when properly sited in a two-foot layer of suitable, unsaturated soils, conventional septic tank systems are not as effective as central wastewater systems in treating wastewater. This differential is heightened given the factors surrounding septic tank systems in Charlotte County: high density, unsuitable soils, low- lying land, a high water table, and the proximity of surface waters. Centralized wastewater treatment plants remove over 90 percent of the contaminants, killing most bacteria and viruses, and oxidize the effluent. Centralized systems facilitate careful monitoring and ongoing maintenance to ensure the attainment of prescribed water quality levels. By contrast, onsite systems present difficult monitoring and maintenance issues and typically lack advanced devices, common in centralized systems, such as flow-equalization systems-- leaving even a well-designed onsite system overloaded by two wash loads in rapid succession, so that its tank contents flush out into the drainfield. Newer onsite wastewater systems have begun to offer an alternative to the conventional septic tank system. Innovative alternative systems may include anaerobic filters to minimize the release of nitrates into groundwater or surface water, ultraviolet disinfection to damage the genetic material of the cell walls of the viruses and bacteria present in the leachate so as to prevent their replication, fixed growth systems to allow aerobic microorganisms in a slime layer to attach and grow on the wastewater so as to extract a soluble organic matter that is a source of carbon and energy, intermittent sand filters to receive numerous doses of small amounts of leachate and reduce biochemical oxygen demand (BOD) and total suspended solids to 10 mg/L or less, and recirculating sand filters to reduce levels of BOD, total suspended solids, fecal coliform bacteria, and nitrogen. Columbia Exhibit 10, Appendix A. However, even these alternative systems provide less treatment than centralized wastewater plants, such as the County's largest plant, East Port, which treats 5 million gallons per day. Moreover, the feasibility of alternative onsite wastewater systems depends on a number of factors including the density and intensity of development, availability of inspection and maintenance programs, and the physiographic characteristics of the installation site, including its size, soils (especially where one of the alternative systems would be used in conjunction with a conventional drainfield), and proximity to groundwater and surface water. Alternative onsite wastewater systems are not in wide use in Charlotte County. At present, only four aerobic treatment units exist in the County. The County also is participating in a pilot project involving 200 homes whose tanks have monitoring ports to facilitate inspections of water quality. Nothing in the record establishes that the U.S. Environmental Protection Agency (EPA) prefers alternative onsite wastewater systems to centralized wastewater systems. The premise of the EPA Report to Congress on the use of decentralized wastewater treatment systems, which is Columbia Exhibit 10 (EPA Report), is that the newer alternative onsite systems are suitable for use in less densely populated areas. The EPA Report does not offer a detailed comparison of the efficiency of onsite wastewater systems with centralized wastewater systems, as operating in the conditions prevalent in Charlotte County--e.g., a high water table, unsuitable soils, low-lying land, nearby surface waters, and high densities. Nor does the EPA Report offer a detailed analysis of the relative costs of the two methods of wastewater treatment, as they might be implemented in Charlotte County. Even if there were evidence that some combination of alternative components could achieve treatment levels comparable to centralized wastewater treatment under the conditions in existence in Charlotte County (and there is not), the EPA Report does not identify the components necessary to achieve such comparable treatment. Thus, the EPA Report does not compare the costs of a decentralized system, including maintenance and monitoring, to the costs of the centralized system. Petitioners Columbia assert that septic tanks have not contributed significantly to water quality degradation in Charlotte County. To the contrary, the opposite of this contention is true. As the County notes: Septic systems are recognized as both polluters of groundwater and the major alternative to centralized sewage treatment plants. Under non-ideal conditions, septic systems can contaminate the surficial aquifer with nitrate, total dissolved solids, bacteria, and viruses. Since most of the naturally occurring soils occurring in Charlotte County are classified by the U.S. Soils Conservation Service as severe for septic tank use [citation omitted], the use of septic tanks to treat domestic sewage in some of the more densely populated areas of Charlotte County must be questioned. Natural Resources Element, p. 3-65. As reflected in Infrastructure Element Charts 4.2 and 4.3, onsite wastewater systems account for only 2.9 and 0.5 percent of the total nitrogen and total phosphorus loadings in Charlotte Harbor. Given the prevalence, as noted above, of phosphorus in the water, the nitrogen loading is of greater significance to the features of water quality adversely affected by overnutrification. The three percent of nitrogen loading attributable to septic tank systems is meaningful in light of the fact that the two largest sources of nitrogen--nonpoint source (67.3 percent) and atmospheric deposition (20.1 percent)--are relatively resistant to reduction by County action. Also, as already noted, localized areas of Charlotte Harbor, such as at the mouths of tributaries, are more impacted by nutrients, and nutrients are only some of the contaminants derived from septic tank leachate. Fecal coliform bacteria, in part likely from septic tank leachate, have occasionally reached dangerously elevated levels numerous times since the County began monitoring for this bacteria in September 1994. Several times, County officials have had to close swimming beaches, such as at Port Charlotte Beach and Harbor Heights. Although fecal coliform bacteria is not specific to human wastes, County officials have conducted limited human virus testing to confirm the presence of human viruses at the points at which several canals enter Charlotte Harbor, so as to indicate the possibility that at least some of the fecal coliform bacteria is indicative of the presence of human intestinal wastes. After weighing all of these factors, as well as the requirements of the remedial agreement into which it had entered with DCA, Charlotte County decided to undertake a large-scale expansion of its central sewer system. Shortly after acquiring General Development Utilities in 1991, Charlotte County adopted a 25-year central water and sewer plan. However, estimated costs for this master plan are $678 million--$610 million for Charlotte County Utilities and $68 million for private utilities. Infrastructure Element, p. 4-168. The County then adopted shorter-range plans for the expansion of central sewer into limited areas over periods of five and ten years. Twelve areas would receive central sewer by 2002 and additional areas would receive central sewer by 2010. The five- and ten-year plans remain in place, but the sources of funding have changed. Initially, the County sought approximately $50 million in new funds through a referendum to extend the one cent local sales tax to pay for this two-stage expansion of central sewer collection and transmission lines and treatment capacity. However, in November 1996, the voters defeated the referendum by 400 votes, or less than .005 of the total votes. After the rejection of the one cent sales tax, Charlotte County decided to fund the necessary expansion of central sewer collection and transmission lines and treatment capacity with connection fees, which would be due upon the availability of central service at built-out lots. The funding for the first phase of expansion is $2.82 million. In identifying the areas first to receive centralized sewer service, the County considered several factors for each area: density, number of pre-1983 septic tank systems, proximity to surface waters, proximity to lift stations with unused capacity, proximity to existing transmission lines with unused capacity, and proximity to existing central wastewater treatment plants with unused capacity. By considering the proximity of each area to components of the existing central sewer system with remaining capacity, the County lowered the cost of connections. Proximity to lift stations, for example, lowered the cost from $8000 per connection to $4000 per connection and thereby reinforced the financial feasibility of the sewer expansion plan. By incorporating septic tanks, where possible, as holding tanks in low-pressure systems, the County further reduced the cost of connections without unreasonably jeopardizing the integrity of the system. In selecting the areas for service, the County even considered household incomes to ensure further that landowners would be able to pay the connection costs and the program would be financially feasible. Charlotte County has borrowed money from the State Revolving Fund to pay for the central sewer expansion. The County must repay this money in 18 years. The loan documents require that the County mandate connections to the expanded system as it becomes available. Additionally, the bonds issued by the County in the acquisition of the water and sewer system also require mandatory connections to County-owned central water and sewer service. Charlotte County will collect the estimated connection fee of $3982 by allowing landowners to amortize the principal, together with eight percent annual interest, over seven years; the County estimates the monthly payment to be $62-70. The County offers programs to assist persons who cannot afford to pay the connection fee. County sewer fees are already high due to the cost of servicing the acquisition debt resulting from the County's acquisition of these facilities, including a $92 million bond issued in connection with the purchase of General Development Utilities; acquisition debt service is the largest portion expense borne by Charlotte County Utilities. Infrastructure Element, p. 4- 168. The analysis of the County's financial ability is contained in the Capital Improvements Element and Infrastructure Element, pp. 8-35 et seq. The analysis demonstrates that all identified sources of revenue are financially feasible and that the entire sewer expansion program is financially feasible. Eventually, the County identified 12 areas to include in the first phase of the sewer expansion program, which is to be completed by 2002. The second phase is to be completed by 2010. These 12 areas contain 3680 lots, of which 2275 are already developed. All of the areas are in the central portion of the County, mostly along U.S. Route 41 between the Peace River and State Route 776. Nearly all of the 12 areas are adjacent to, or in close proximity to, areas served by existing gravity sewers. The 12 areas are entirely within Infill Areas in the USA. The two areas that have drawn the most attention in these cases are A1 and A2. A1 is a triangular parcel bounded on the northeast by U.S. Route 41 and the south by Charlotte Harbor. A2 is an extremely small area about four blocks northwest of A1 and just off of U.S. Route 41. Petitioner Jordan lives in A1. By the time of the hearing, the County had already completed the expansion program in these areas and had successfully used the existing lift station. A1 is largely tourist commercial with a density of about 3.5 units per acre. A2 is mixed use with a density of about 15 units per acre. Eighty to ninety percent of the septic tank systems in A1 and A2 are pre-1983 systems. A1 abuts Charlotte Harbor, and A2 is only about three blocks from the harbor. Petitioner Jordan challenged the County's reasoning for the exclusion of the area between A1 and A2. This area is in the second phase of the expansion project. There is no evidence whatsoever that the County omitted this area, even if economically depressed relative to A1 and A2, in a manner that is arbitrary or intended to discriminate against lower-income residents. Moreover, this entire area, which is known as Charlotte Harbor, appears to be in the middle, among other locations in the County, in terms of median household income. In no way has the County's identification of the first- or second-phase areas to receive central sewer had an impact on affordable housing. Charlotte Harbor contains the County's only Community Redevelopment Agency area. Although this area is largely built-out, the County has reduced densities from 15 and 30 units per acre to 3.5 units per acre, so as to direct population away from this the Charlotte Harbor Community Redevelopment Agency Area, which is almost entirely within the CHHA and is 90-95 percent built-out. Potable Water Bocilla Utilities was incorporated by the developers of Colony Don Pedro, or their affiliates, in the early 1980s during the development of Colony Don Pedro, which is a resort development on Don Pedro Island. Bocilla Utilities has a proven record of technical competence and professional integrity in producing and supplying potable water to those island residents who are its customers. A no-name storm destroyed the wells of Bocilla Utilities in June 1982. In 1984, Bocilla Utilities received a permit to operate a reverse osmosis plant. Built in 1985, the plant was designed to produce 30,000 gallons of potable water daily. The plant has not been extensively damaged since its construction. Bocilla Utilities operates two wells to remove brackish water from about 165 feet deep and is in the process of adding an already-permitted third well at the site. Just seaward of the plant are two 50,000 gallon underground storage tanks for holding finished water prior to its distribution to customers. Bocilla Utilities deep-well injects the waste byproduct of the production process. The plant and wells of Bocilla Utilities are located on the part of the Don Pedro island chain that is divided into three narrow spits of land immediately south of where Bocilla Pass formerly divided the chain. The Gulffront lots along a small road are platted to be 100 feet wide and 300 feet deep. On the other side of the road, the lots, which front Bocilla Lagoon, are platted to be 80 feet wide and about 150 feet deep. Bocilla Lagoon is about as wide as the spit of land on its Gulf side. Behind Bocilla Lagoon is another spit of land a little narrower than the first and with waterfront lots on either side of a narrow road. Kettle Harbor, which is a little wider than Bocilla Lagoon, is behind the second spit of land, and behind Kettle Harbor is a third spit of land, about the same width as the second, with waterfront houses on either side of a narrow road. The plant and wells of Bocilla Utilities are about 2900 feet south of where the island closed over the portion of Bocilla Pass leading into the Gulf of Mexico. Most of the pass still remains; it is blocked from the Gulf by six 300- foot Gulffront lots that are platted to be about 300 feet deep and about 80 feet wide. The plant is located above 75 feet from Bocilla Lagoon, and the wells are within 50 feet of the lagoon. Water lines are covered by 2 1/2 to 3 feet of sand. In general, "the shoreline is the most extensive of all high hazard areas." Natural Resources Element, p, 3-206. As disclosed by Natural Resources Element Map 3.13, which depicts topographical contours, the Don Pedro island chain is low-lying, with its highest point not much more than five feet in elevation. There is no central sewer on the Don Pedro island chain. Most of the septic tank systems are within 100 feet of surface waters. Because nearly all of the lots on the Don Pedro Island chain were platted prior to 1972, septic tanks may be installed within 50 feet of surface waters. In 1991, Bocilla Utilities became a public utility regulated by the Florida Public Services Commission (PSC). The PSC has granted Bocilla Utilities a certificated territory on the Don Pedro island chain that Bocilla Utilities must serve at a PSC-approved rate. The territory is bounded on the south by the Don Pedro Island State Park and the north by the Palm Island Resort. Within these limits, the territory runs from the Gulf of Mexico to the Intracoastal Waterway. Bocilla is now permitted for 120,000 gallons per day and, at the time of the hearing, was completing the first phase of its expansion, to 60,000 gallons per day. Bocilla Utilities will construct the second phase of its expansion when customer demand dictates. At the time of the hearing, Bocilla Utilities was serving 186 connections. Its service lines reached 58 homes whose owners chose not to connect to central water. Its service lines also reached 291 empty lots. Additionally, Bocilla Utilities had not yet extended lines to 36 homes and 159 empty lots within its certificated territory. These 730 lots constitute Bocilla Utilities' entire certificated territory, except for one unplatted 12-acre parcel. Ignoring this unplatted parcel, approximately two-thirds of the portion of the Don Pedro island chain within the certificated territory of Bocilla Utilities is unbuilt. Over 1800 of the 1842 platted lots on the Don Pedro island chain are available for residential development. Thus, the 730 lots within the certificated territory of Bocilla Utilities constitute almost 40 percent of the available platted lots on the entire Don Pedro island chain. About 80 homes on the Don Pedro island chain use wells and/or cisterns for potable water. Although the record is not entirely clear, little of the Don Pedro island chain remains unplatted. This fact has an important bearing on the effect of the Bridgeless Barrier Island Overlay District, which, on its face, limits density to one unit per acre. This density is more theoretical than real. For already-platted land, which applies to nearly the entire island chain, the designated density under the overlay district is one unit per platted lot. Thus, as a practical matter, the Bridgeless Barrier Island Overlay District will do very little to limit population growth on the Don Pedro island chain. As was the case prior to the adoption of the first plan, the permitted densities for the Don Pedro island chain remain governed by the more generous land development regulations in effect at the time of platting the island chain. For the same reasons, the policy requiring mandatory connections to central water, as applied to the Don Pedro island chain, will not have any impact on the designated density permitted on the island chain by the plan. Given the practical ineffectiveness of the Bridgeless Barrier Island Overlay District in limiting population on the Don Pedro island chain, Petitioners Starr argue that the practical effect of the plan provisions requiring mandatory connection to central water, as applied to the island chain, will accelerate population growth. Although, for the reasons just noted, this growth will not express itself in higher densities at build-out. Instead this growth will express itself in two ways: accelerated development of the undeveloped, though platted, land and intensification of the use of already-developed land. Any analysis of the impact on island population growth of a policy of mandatory connections to central water must begin with the fact that population growth, at present, has not been remarkable fast on the island chain. In its answers to interrogatories, Charlotte County argues that island growth is driven by two invariables (at least for the present): the lack of a bridge and the presence of vested platted lots. Undoubtedly, the lack of bridge access to the Don Pedro island chain discourages population growth. Starr Exhibit 9, pp. 1-3. Of course, the presence of vested platted lots favors population growth. However, conventional density analysis, which addresses dwelling units per acre, inadequately describes the intensity of use of the Don Pedro island chain, which is a popular tourist destination for visitors and County residents. A better measure of residential intensity measures the intermittent residential use of the dwelling units present on the island chain. A fixed number of dwelling units, many of which are occupied intermittently by their owners or renters, generate residential intensity based on the periods of time that they are occupied. Thus, factors contributing to longer periods of occupancy of a fixed number of dwelling units drive any analysis of the anthropogenic impacts upon the highly sensitive natural resources of this barrier island system and its adjacent estuarine and open waters. From the perspective of the intensity of residential uses, the policy of mandatory connections to central water, as applied to the island chain, intensifies residential uses by increasing the periods of occupancy of the dwelling units present on the island chain. Absent evidence of the promotion of the Don Pedro island chain as a pristine adventure experience more typical of eco-tourism than conventional tourism, it is evident that tourist destinations with reliable sources of potable water enjoy greater appeal than tourist destinations lacking reliable sources of water. As the principal of Bocilla Utilities testified, central potable water adds value to an island residence, and this value may express itself in fair market value or in rental value, both of which are indicators of more appealing tourist destinations and, thus, greater periods of occupancy of each residence. The dry months in Southwest Florida are approximately coextensive with the winter, during which time a large number of visitors seek relief from unpleasant weather elsewhere. Thus, the availability of potable water is an important issue during a period of time associated with tourism. The possibility of potable water shortages among persons occupying residences not connected to central water is more than theoretical. In the past, drought conditions have produced water shortages among island residents dependent on cisterns and wells for potable water. Some residents have used garden hoses running from spigots in residences served by Bocilla Utilities to fill their cisterns during dry months, although the frequency of this occurrence, given the vigilance of Bocilla Utilities, is probably quite low. Water shortages experienced by persons occupying residences not served by central water produce lower levels of consumption of potable water in three ways. Persons subject to such shortages will use water more prudently to avoid shortages and, of course, will use no water at all when the supply is exhausted. Also, the unreliability of potable water supplies at such residences will discourage their occupancy, so as to lower further levels of potable water consumption. Reports of actual usage reflect the lower levels of potable water consumption at residences that rely exclusively on cisterns for potable water. The three members of Petitioners Starr average nearly 2300 gallons per month or about 76 gallons per day at their respective households, which are supplied by cisterns. Assuming only two persons per household, rather than the County average of 2.23 persons, this would represent 38 gallons of potable water per day per person. This consumption rate is less than half of the County's level of service standard for potable water, which is 85 gallons per day per person. Infrastructure Element, p. 4- 106. Betty Brenneman, who is a member of Petitioners Starr, testified that, during her 12 years on the island, she has detailed knowledge of the island residences, largely due to her work as a real estate agent and manager for 24 rental properties. She noted that, prior to the availability of central water, there were only one or two single family pools on the island chain, but now there are at least 24 pools. From the perspective of conventional density analysis, the presumed inevitability of the development of the platted lots does not justify the acceleration of this process through the adoption of a mandatory water connection policy on the island chain. But, even if the island chain were built- out, the intensification of residential uses resulting from a requirement of mandatory connections to central water, as applied to the Don Pedro island chain, raises serious planning issues in the context of the unique resources of the Don Pedro island chain, the risks posed to residents of this island chain that is highly vulnerable to catastrophic storm surge and winds, the planning challenges generally confronting the County in addressing the urban sprawl resulting from a large number of platted lots, and the strategies adopted by the County to address these challenges. The Don Pedro island chain is the sole location outside of the USA for which the County requires mandatory connections to water or sewer. Except for the environmental issues unique to a barrier island and its adjacent estuarine waters and the unique natural hazards posed to residents of this barrier island, the situation on the Don Pedro island chain is a microcosm of the formidable planning challenges facing Charlotte County due to the vast numbers of prematurely, and poorly, platted lots and the importance of the County taking advantage of the few strategies that it has been able to adopt to address these challenges. If every one of the 226,000 buildable lots within the County's three urbanized areas were developed, the County would realize a density in these urbanized areas, which consist of 215 square miles (or 137,600 acres), of 1.64 units per acre. FLUE, p. 1-99. The development of such vast amounts of land at such low densities underscores the costly impacts of urban sprawl and inefficient land-development practices, as the County will attempt to find ways to provide extensive public facilities and services, such as extra roads, longer water and sewer lines, more drainage systems, and more public safety substations, that are necessary to serve such far-flung development. As the County admits, "[u]rban sprawl, which is the opposite of concentrated growth, is a far more expensive and inefficient way for land to be developed." FLUE, p. 1-131. In responding to utilities' claims that they must serve their certificated territories economically by adopting a policy of mandatory connections (anywhere outside of the USA, but especially on a bridgeless barrier island chain), the County ignores its analysis of the relationship of platted lands and central utility service and, for the reasons already discussed, the unusual limitations already imposed upon the County in discouraging urban sprawl through County control of the timing and location of the provision of infrastructure: As with the overplatting of the county, the granting of vast certificated areas has made the task of managing growth extremely difficult; when dealing with numerous private utility providers, the issuance of certificated areas is a primary growth management tool, and one which is not altogether available in Charlotte County. FLUE, p, 1-147. Repeatedly, the County recognizes in the plan that the availability of central water facilitates growth within the served area. At one point, the County's analysis points out: "Besides roads, central potable water lines have had the greatest infrastructure influence on the development pattern of Charlotte County." Infrastructure Element, p. 4-153. Reflecting the insights borne of many years of dealing with the logistical and fiscal challenges of finding ways to extend vital public facilities to vast areas of prematurely platted land, the County's analysis adds: "Growth and development can be channeled toward certain locations in Charlotte County through the provision of potable water service; the intensity of use can be determined through the provision of central sanitary sewer service." Infrastructure Element, p. 4-143. It thus follows that: "Rural Service Areas are those locations in which central potable water and sanitary sewer should not be extended during the planning time period. This action, along with very low residential densities, reduces the likelihood of major population growth occurring in rural areas of Charlotte County. The Rural Service Area includes the bridgeless barrier islands . . .." Infrastructure Element, p. 4-149. In general, the County has attempted to adopt growth management strategies that "govern development without sacrificing the positive aspects of urban sprawl." FLUE, p. 1-132. The County's ambivalence toward sprawl, which may partly explain its extension of the mandatory water connection policy to the Don Pedro island chain, is disclosed in the following analysis: Urban sprawl, which is the opposite of concentrate growth, is a far more expensive and inefficient way for land to be developed. . . . The growth management strategy incorporated within this comprehensive plan is developed and implemented with the urban sprawl rule in mind. Characteristics of urban sprawl identified by this rule include: lands which have been prematurely converted from rural lands; lands in which development is not functionally related to adjacent areas; and lands which fail to maximize the use of existing public facilities. Patterns of urban sprawl include leapfrog or scattered development, strip commercial development, and large expanses of single-use development. Due to past practices, Charlotte County can be considered an urban sprawl community. The County is characterized by strip commercial development lining the major urban corridors, large expanses of single- family homesites which have been platted and deemed vested for development, and scattered development which has resulted from various development pressures. Most academic sources, however, point only to the downside of urban sprawl without identifying its positive aspects. In Charlotte County, these past practices have at least kept the cost of home and business ownership low. FLUE, p. 1-131. It remains open to question whether urban sprawl in Charlotte County has actually kept the cost of home ownership low or, stated in the alternative, depressed residential real estate values. Limiting home ownership costs to mortgage principal, mortgage interest, ad valorem taxes, and homeowner's insurance, Housing Element Table 6.17 shows that, among the six counties of Southwest Florida, Charlotte County is fourth in the percentage of its households spending at least 30 percent of their income on housing. Twenty percent of Charlotte County households spend at least 30 percent of their income on housing, which is slightly less than the 21.8 percent of Collier County households spending at least 30 percent of their income on housing. Of course, these figures ignore differences in income and housing values, but the mean cost of a new house in Charlotte County in 1990 was $77,200, which is $5100 over the state mean, 16th among Florida's 67 counties, and 13th among Florida's 33 coastal counties. Housing Element, p. 6-viii. In any event, the extension of central water through the Don Pedro island chain, together with mandatory connections, will raise real estate costs, as already noted. Notwithstanding any ambivalence toward sprawl, the County's extension of the mandatory water connection policy to the Don Pedro island chain ignores the many limitations already imposed upon the County in trying to control the admittedly adverse effects of urban sprawl through land use restrictions. The demographic factors present in the County coupled with the large extent to which important infrastructure is not provided by the County are accentuated by the more typical concerns of local governments in Florida arising out of the 1995 Bert J. Harris, Jr., Property Rights Protection Act (Harris Act). In addition to the Fifth Amendment constitutional prohibition against uncompensated takings, the Harris Act arguably imposes additional statutory restrictions upon the County and State in regulating land uses without compensating landowners. The County notes that the Harris Act "may severely limit local, regional, and state government actions regarding land uses of private property owners or may require compensation for such actions," FLUE, p. 1-3, and "seriously hampers . . . the County's ability to reduce the density of . . . existing plats." Natural Resources Element, p. 3-202. In the face of all of these limitations upon the County's ability to limit urban sprawl on the sensitive Don Pedro island chain, the County's extension of the mandatory water connection requirement to the island chain is counterproductive. in the extreme. Nothing in the Harris Act compels the County to require island landowners to connect to central water, or else owe damages to these landowners. To the contrary, allowing island landowners not to connect to central water is one of the few cost- and risk-free strategies left to the County for discouraging sprawl on the island chain. Although the benefits of not requiring mandatory water connections may not completely offset the disadvantages of the platted density, the importance of not requiring mandatory water connections on the island chain assumes greater importance because it is one of the few available options left to the County to deal with the planning challenges presented by the densely platted island chain. Under the circumstances, the County's decision not to exercise this option but, instead, to require mandatory water connections on the island chain, is inexplicable and repugnant to the data and analysis, which militate in favor of reduced densities and residential intensities on the island chain. In addition to yielding benefits to the natural resources of and surrounding the island chain, a policy contributing to reduced densities and residential intensities also addresses the unique natural perils confronting the island's residents or visitors and their property. In the past 110 years, Charlotte Harbor has absorbed the energy of at least seven named tropical storms or hurricanes, as well as many no-name storms such as the thunderstorm cluster of June 1995. The area between Charlotte Harbor and Hillsborough Bay is at the intersection of numerous hurricanes forming in the Gulf of Mexico and the Atlantic Ocean and has experienced a very high number of tropical storms and hurricanes. Even ignoring the no-name storms, tropical storms or hurricanes have hit the Don Pedro island chain an average of once every 16 years. The Don Pedro island chain is generally low. As already noted, nearly all of the island chain will be inundated by the storm surge associated with the landfall of merely a tropical storm; the small remaining portion of the island chain is inundated by a Category 1 storm. FLUE, Map 1.17. The Storm Tide Atlas for Charlotte County, which was prepared by the Southwest Florida Regional Planning Council, reveals that a tropical storm hitting land at a point about midway between the Bocilla Utilities water plant and wells and Bocilla Pass is about four feet above National Geodetic Vertical Datum; this location on the island chain will be under about one half foot of water. The same location is under about two feet of water in a Category 1 hurricane, five feet of water in a Category 2 hurricane, a little over eight feet of water in a Category 3 hurricane, and nearly 14 feet of water in a Category 4 or 5 hurricane. County Exhibit 53, Plate 2 and back page. A Category 3 storm would cause significant damage to island properties, including the wells and transmission lines of Bocilla Utilities, that are located close to the water and within one-half mile of an historic pass. Although the plant itself is designed to resist the storm surge and winds associated with a storm producing winds of 140 miles per hour, a Category 5 storm would, in the words of the director of the County Emergency Management Department, "wipe the island clean" of everything, including the plant, the wells, the transmission lines, and any residents or visitors failing or unable to heed orders to evacuate. (Transcript, p. 1908.) The parties raise several other issues concerning the requirement of mandatory connections to central water, as applied to the Don Pedro island chain. The County justifiably contends that the quality of Bocilla Utility water is more reliable than the quality of the water from cisterns or wells. The Bocilla Utilities water will be more reliable due to the ongoing monitoring and treatment performed by Bocilla Utilities and the infrequent monitoring and less-extensive to nonexistent treatment performed by owners of wells and cisterns. In 1996, the director of the County Health Department tested four bad samples from the Don Pedro island chain: three from wells and one from a cistern. E. coli bacteria contaminated one well sample, and coliform bacteria contaminated one well sample and two cistern samples, one of which came from a kitchen faucet. In all, there was one incident of reported diarrhea and vomiting likely associated with bad water. However, these four bad samples came from Little Gasparilla Island, which is not in the certificated territory of Bocilla Utilities and which is characterized by older, more dense residential development than that within the certificated territory of Bocilla Utilities. And, prior to 1996, the director could not recall a single problem with potable water quality on the island chain. Although the cisterns collect rainwater, which is relatively pure, the conditions in the cistern and onsite delivery line may be less than ideal. Also, the wells and many of the cisterns are installed in the ground, where they are vulnerable to contamination from stormwater runoff. Most wells are only 8-10 feet deep so as to tap a shallow freshwater lens under the island chain. Typically, the wells are jetted in with a hose, rather than bored, and lack a concrete apron, so they too are vulnerable to contamination from stormwater runoff. However, the record establishes that the wells and cisterns in use on the Don Pedro island chain do not represent a measurable threat to human health. For instance, Robert Starr (Starr), who has lived on the island for 11 years, uses a cistern, which, like many on the island chain, was installed by Bocilla Utilities, and reports no problems. Starr changes filters once a month. The same is true with the two other members of Petitioners Starr, who have lived on the island for six and 12 years, respectively. Greater consumption of potable water means greater production of septic tank leachate and irrigation runoff. About 75 percent of the amount of potable water consumed will become wastewater. These inputs will have a deleterious effect on Lemon Bay. Each side mounts fire-safety arguments that largely cancel each other out. The County asserts that the lack of hydrants allowed a home to burn to the ground "several years ago." Petitioners Starr assert that Bocilla Utilities lacks the commitment to providing serviceable hydrants in their certificated territory with sufficient water pressure to extinguish a house fire. Whatever the truth of these assertions, firefighters have four floating pumps to draw saltwater from nearby surface waters to fight house fires in the certificated territory of Bocilla Utilities, as well as in the much larger area of the Don Pedro island chain that is not within the certificated territory of Bocilla Utilities or otherwise served by central water. Additionally, unless island residents have a particular aversion to death by fire and asphyxiation, as opposed to death by water and drowning, they would more likely, when addressing perils to their lives and property, focus upon the greater risk posed to them by storm surge and wind, as presented by a storm, or even by the more persistent wind and tidal action. Plan Provisions Governing Historic Resources Historic Preservation Element Objective 1.1 is that the County, "[b]y June 1, 1999, will develop a program which will protect the County's historical and archaeological resources." The policies under Historic Preservation Element Objective 1.1 provide an array of programs and mechanisms by which to achieve this objective. These programs and mechanisms include providing matching funds (if financially feasible) for federal and state programs to obtain grants to contribute to the knowledge of the County's historic and archaeological heritage, offering transferable development rights or other incentives for the preservation of historic and archaeological resources, and adopting an historic preservation ordinance to provide specific criteria to protect historic and archaeological resources. Historic Preservation Element Objective 1.2 is for the County, by June 1, 1999, to develop and maintain a site inventory on the County geographical information system of all significant historic buildings, historic architecture, historic districts, and archaeological objects and places. Historic Preservation Element Policy 1.2.4 is to "strive" to "locate, identify, preserve, protect, and recognize its archaeological sites and historic structures " Historic Preservation Element Objective 1.3 is for the County to encourage the nomination of historic buildings, sites, districts, or objects to the National Register of Historic Places or the Local Register of Historic, Archaeological, or Scenic Places. Historic Preservation Element Objective 1.4 is for the County to "participate" in public education campaigns to promote public awareness of the importance of preserving its historic, archaeological, architectural, and scenic resources. Although Housing Preservation Element Goal 2 is, among other things, to identify "historically significant housing," none of the objectives or policies under that goal mentions such housing by name, although Housing Element Policy 2.1.1 is to assist public and private housing providers by providing information and assisting in obtaining state and federal grants to increase the supply of, among other things, "special needs groups," which may incorporate those persons "needing" historically significant housing. According to the FLUE Table of Contents, the "Free- standing Future Land Use Map series" includes a map entitled, "Historical Sites Overlay District, 1997-2010" (Historical FLUM). The Historical FLUM identifies itself as, "Future Land Use Map Series No. 6, Adopted October 7, 1997." Although FLUE Objective 2.1 does not identify the maps that are part of the adopted Future Land Use Map (FLUM) series, it is evident which maps are part of the FLUM map series, and the Historic FLUM is clearly part of the FLUM that the County adopted as part of the plan. The Historic FLUM is a map of the County measuring about 17 inches by 11 inches. Eight major roads are indicated on the map. Locations of interest on the map are depicted by a small pentagon on the map and a line leading from the pentagon to a code, such as "CH00445." The Historical FLUM is the same map as Historical Element Maps 9.1 and 9.2. However, Historic Preservation Element Table 9.1, which is required to obtain the street addresses of the historical sites that are depicted on the Historical FLUM, does not accompany the Historical FLUM, nor does the Historical FLUM incorporate or even mention the table. Provisions Governing Potable Water and Sanitary Sewer Infrastructure Element Objective 1.7 is to "manage development within the . . . 100-year floodplain." Infrastructure Element Policy 1.7.1 provides that, for properties within the 100-year floodplain, the County shall grant transferable development rights to landowners electing, in perpetuity, not to disturb or alter their land within the 100-year floodplain. Infrastructure Element Policy 8.1.5 protects areas of prime aquifer recharge by limiting densities to one unit per 10 acres. Infrastructure Element Objective 8.2 is to "maintain. . . or improve. . ." the County's groundwater resources, which "shall not be degraded, either directly or indirectly, by human influences, below Federal or State standards." Infrastructure Element Policy 8.2.5 is to "maintain . . . current policy requiring mandatory connection to sewer and water service when such service is provided, thus reducing the number of septic tanks and wells in use." Infrastructure Element Goal 9 is for the County to encourage public and private utilities to provide economically efficient water and sewer systems that "maximize. . . the use of existing facilities to meet the needs of a growing population, while protecting the environment." Infrastructure Element Objective 9.1 is for County and utilities to provide water and sewer services to new and existing development "in conjunction with" previously certificated territories and the USA strategy. Infrastructure Element Policy 9.1.1 encourages utilities to extend sewer and water services to Infill Areas in accordance with the USA strategy. Infrastructure Element Policy 9.1.4 states that certificated territories will be extended or expanded for water or sewer outside of Infill Area boundaries, subject to certain exceptions. Infrastructure Element Policy 9.1.7 provides that landowners of new development within the Infill Areas or previously certificated territory where central water or sewer is not available, shall connect to central water or sewer when it becomes available and within 365 days of written notice from the utility. Infrastructure Element Policy 9.2.2 requires mandatory connection to central sewer for landowners whose property is served by a package plant, which is allowed in the USA as a "temporary measure." Infrastructure Element Policy 9.2.3 provides that the availability of water and sewer will not necessarily justify development approval. Infrastructure Element Objective 9.3 is for the County to "protect its existing and future potable water supplies, such as the Peace River, and wellhead locations." Infrastructure Element Objective 9.4 is, in part, to identify and conserve water supplies. Infrastructure Element Policy 9.4.7 is for the County to encourage water utilities to adopt a conservation rate for users. Infrastructure Element Goal 10 is for utilities to maintain adequate levels of service for water and sewer. Infrastructure Element Objective 10.1 is for utilities to provide the capital improvements needed to maintain existing facilities, replace obsolete or worn facilities, and eliminate existing deficiencies. Infrastructure Element Policy 10.1.1 adopts level of service standards of 190 gallons per day per dwelling unit for water and 161.5 gallons per day per dwelling unit for sewer. Per person rates are calculated by dividing these rates by 2.23. Infrastructure Element Policy 10.1.2 is for all facility improvements to meet the adopted levels of service standards. Infrastructure Element Policy 10.1.5 states that concurrency determinations are on the basis of the relevant facility, not on the basis of the entire County or system. Infrastructure Element Goal 11 is for the County to "attempt to reduce negative impacts to the natural environment and the public health, safety, and welfare resulting from the use of sanitary wastewater treatment systems (septic systems, package treatment plants, and central sewer systems)." Infrastructure Element Objective 11.1 is for the County to "develop and begin implementing a septic system management program" by October 1, 2000. Infrastructure Element Policy 11.1.2 is for the County to "develop and maintain a schedule of septic system maintenance" and to "begin implementation" by October 1, 2000. Infrastructure Element Policy 11.1.3 bases the schedule on the geographic area, system size, drainfield and water table separation, system age, performance history, soil type, surface water setback, and other information. Infrastructure Element Policy 11.1.5 allows the continued use in the USA of "properly constructed and functioning septic systems which are maintained in accordance with the septic system management program," unless a utility requires connection to a central sewer system. Infrastructure Element Policy 11.1.6 imposes upon the owners the cost of the septic system management program. Infrastructure Element Policies 11.1.1 and 11.1.4 are for the County to complete a pilot septic tank system management program by October 1, 1999, and to use private companies to inspect and maintain septic tanks as part of the septic tank system management program. Infrastructure Element Objective 11.2 is for the County to "develop and begin implementation" of an ambient water quality monitoring program, by December 31, 2000, "to determine the impacts of pollution resulting from the use of sanitary wastewater treatment systems (septic system, package treatment plants, and central sewer systems)." Infrastructure Element Policy 11.2.3 requires the repair or replacement of systems violating water quality standards and endangering the public health. Infrastructure Element Policies 11.2.1 and 11.2.4 are for the County to collect and analyze soils samples for pollutant loadings by December 31, 2000, and to enforce the minimum requirements of Rule 10D-6 for new or replacement septic tank systems. Infrastructure Element Objective 11.3 states: "Developed properties will be connected to central potable water or sewer service when it is available and within 365 days upon written notification by the utility provider." Infrastructure Element Policy 11.3.1 defines availability as a utility line within a public easement or right-of-way abutting the property and within 200 feet of the property line of a developed establishment. Infrastructure Element Policy 11.3.2 requires connection to central water, and Infrastructure Element Policy 11.3.3 requires connection to central sewer. Infrastructure Element Policy 11.3.4 is for the County to "encourage" interconnection of package treatment plants and the replacement of such plants with larger, more economical treatment systems or alternative onsite treatment systems with advanced treatment standards. Infrastructure Element Objective 11.5 is for the County to "attempt to reduce the percentage of septic systems serving new development." Infrastructure Element Objective 11.6 is for the County to "require the installation of advanced onsite treatment and disposal systems based on lot size or proximity to surface water for new development by July 1, 1998 " Infrastructure Element Policy 11.6.1 provides that proximity to surface water means 150 feet, and Infrastructure Element Policy 11.6.2 provides that lot size means up to and including 10,000 square feet-unless, in either case, the area is scheduled to receive central sewer, according to the five-year schedule of capital improvements. However, Infrastructure Element Policy 11.6.3 requires mandatory connection to central sewer, even if an alternative wastewater treatment system is installed. Infrastructure Element Goal 12 is for the County to operate its water and sewer utilities efficiently and for the benefit of the public. Infrastructure Element Objective 12.1 is for the County to provide adequate capital improvements to attain the minimum level of service standards in the operation of its water and sewer systems. Infrastructure Element Policy 12.1.1 is to include major capital expenditures for water and sewer on the five-year schedule of capital improvements. Infrastructure Element Policy 12.1.6 is for the County to seek federal and state assistance to fund central water and sewer infrastructure for Charlotte County Utilities. Infrastructure Element Policy 12.1.7 requires the County to implement a short-range central sewer installation program from 1997-2002 within the areas shown in Infrastructure Element Map 4.A. Infrastructure Element Policy 12.1.8 requires the County to implement a long-range central sewer installation program starting in 2002 within the areas shown in Infrastructure Element Map 4.B. Infrastructure Element Map 4.A contains the 12 areas previously described within the central portion of the County, mostly along U.S. Route 41 and State Route 776. Infrastructure Element Map 4.B contains primarily two massive areas: one encompassing A1 and A2 from Infrastructure Element Map 4.A together with a much larger area along U.S. Route 41 abutting the mouth of the Peace River and another even larger area along U.S. Route 41 about midway between State Route 776 and the Peace River. Capital Improvements Element Policy 1.3.20 is for the County to apply numerous criteria in implementing capital improvements projects. These criteria include the elimination of public health or safety hazards, elimination of capacity deficiencies, ability to service future growth, financial feasibility, and consistency with the USA strategy. FLUE Goal 1 is for the County to "manage growth and development in a manner which safeguards the public investment, balances the benefits of economic growth with the need for environmental protection, and prevents urban sprawl." FLUE Objective 1.1 is for the USA strategy to direct the "timing, location, density, and intensity of development and infrastructure . . . so that at least 90% of the urbanized development is located within the [USA's] Infill Areas." FLUE Policy 1.1.1 divides the USA into the Infill Areas and Suburban Areas and divides the County into the USA and Rural Service Area. FLUE Policy 1.1.2 identifies levels of service standards for each public facility and sets the frequency of various services, such as garbage pickup and fire response times; Infill Areas have the most intensive and frequent services and the Rural Service Area has the least intensive and frequent services. FLUE Policy 1.1.6 states: "Within the bridgeless barrier island Rural Service Area location, Charlotte County will prohibit higher densities of new residential development by allowing only for residential uses at very low densities not to exceed one dwelling per acre or one dwelling unit per platted lot consistent with Policy 2.5.3." FLUE Objective 1.3 is to "use the location and timing of infrastructure and services to direct growth in an orderly and efficient manner." Regarding the provision of infrastructure and services, FLUE Policy 1.3.1 places the highest priority on the Infill Areas and lowest priority on the Rural Service Area, although FLUE Policy 1.3.2 warns that the County may provide higher levels of infrastructure and services to any area to protect the public health, safety, and welfare or "at the request and capital outlay of the citizens of the area." FLUE Objective 1.4 is the platted lands strategy, which is to reduce the number of platted vacant lots by one percent annually by January 1, 2005. FLUE Policy 2.4.1 incorporates into the plan the Charlotte Harbor Management plan, Charlotte Harbor Surface Water Improvement and Management Plan, and Lemon Bay Aquatic Preserve Management Plan. FLUE Policy 2.5.3 establishes the Bridgeless Barrier Island Overlay District, which comprises the Don Pedro Island chain. This policy states, in part: "In order to reduce the potential for devastation resulting from involuntary natural disasters, this overlay district restricts the intensity of residential development." FLUE Goal 3 recognizes the supremacy of the U.S. and Florida constitutions. FLUE Objective 3.1 is for the County to respect private property rights. FLUE Policy 3.1.3 is for the County to deprive no person of life, liberty, or property without due process of law. FLUE Goal 5 is for the County to regulate the use of land "to safeguard the public investment and to protect the population." FLUE Objective 5.1 is for the County to limit densities in the CHHA to 3.5 units per gross acre, although FLUE Policy 5.1.1 recognizes the lower density of one unit per gross acre on the bridgeless barrier islands, subject to one unit per grandfathered lot. FLUE Objective 5.2 is for the County to "locate public facilities in locales which are less susceptible to severe weather damage and are not within the [CHHA] unless such location is the only one which serves a particular structure's intended public purpose." Housing Element Policy 1.3.2.e is for the County to promote affordable housing by implementing the community redevelopment plan for Charlotte Harbor. Housing Element Policy 2.1.6 is for the County to consider, when reviewing its land development regulations, the potential damage of catastrophic hurricanes. Natural Resources Element Goal 1 is: "To conserve, protect, enhance, and where necessary restore Charlotte County's environmental and natural resources to ensure their long-term quality for the future; increase public access to the shoreline and coastal waters; protect human life in areas subject to natural disaster; and limit public expenditures in areas subject to natural disaster." Natural Resources Element Objective 1.2 is to protect the quality of surface waters. Natural Resources Element Policy 1.2.2.a is to locate onsite sewage disposal systems as far landward as feasible on waterfront properties to reduce nutrient and pathogen loading into surface waters. Natural Resources Element Policy 1.2.2.b is to prohibit the discharge of runoff, wastewater, or other sources of contamination into surface waters below applicable water quality standards, including those higher water quality standards applicable to Outstanding Florida Waters. Natural Resources Element Objective 1.3 is for the County to "protect its marine and estuarine habitats and finfish and shellfish resources to ensure long-term viability and productivity for scientific, commercial, sport, and recreational purposes." Natural Resources Element Objective 1.4 is not to degrade groundwater quality. Natural Resources Element Policy 1.4.1 is to prohibit the storage of hazardous materials in areas recharging the intermediate aquifer. Natural Resources Element Policy 1.4.6 is to continue to require connections to central water and sewer. Natural Resources Element Objective 1.8 is for the County to "protect existing natural reserves, preserves, and resource conservation areas . . .." Natural Resources Element Policy 1.8.1 is for the County to apply unspecified "development review criteria" to the aquatic preserves, Don Pedro State Park, and Port Charlotte Beach State Park partly or wholly within the Bridgeless Barrier Island Overlay District, although it is unclear exactly what development the County would be permitting in these preservation areas. Natural Resources Element Objective 1.13 is for the County to "protect its beach and dune systems, including native dune vegetation, from human induced erosion." Natural Resources Element Policy 1.13.3 prohibits all construction activity seaward of the Coastal Construction Control Line except as permitted by the Department of Environmental Protection under Chapter 161, Florida Statutes. Natural Resources Element Objective 1.16 is for the County to "reduce the threat of loss of life and property to catastrophic hurricanes and locate new public facilities outside of the [CHHA] except as necessary to ensure public health and safety." Natural Resources Element Policy 1.16 identifies the CHHA as "all areas designated by the Southwest Florida Regional Planning Council as requiring evacuation in the event of a landfalling Category I hurricane." Natural Resources Element Policy 1.16.2 provides: Within the [CHHA], Charlotte County will prohibit new publicly funded buildings, except for restrooms and other structures including, but not limited to: boat ramps boat docks, picnic shelters, bridge tender's building, landscape or facility maintenance sheds, boat lock, and food or rental concession stand, along with the necessary water, sewer and road infrastructure which are appropriate and necessary for public use and recreation and cannot be located elsewhere. Public buildings and structures along with the necessary water, sewer and road infrastructure associated with essential life safety services, such as police/sheriff district stations, fire stations, or emergency medical service stations may be developed or redeveloped in [CHHA] as needed to protect the public health, safety, and welfare. . . . Natural Resources Element Policy 1.16.6 is for the County to "actively facilitate" the removal of density from the CHHA by plat vacation and other means. Natural Resources Element Policy 1.16.7 provides that owners of land in the Category 1 hurricane vulnerability zone may transfer their development rights elsewhere in the County. Natural Resources Element Objective 1.17 is to start reducing hurricane evacuation times by 2000. Natural Resources Element Objective 1.19 is for the County to "limit additional public investment in the [CHHAs] except as necessary to ensure public health or safety." Natural Resources Element Policy 1.19.1 is for the County to "prohibit the construction or reconstruction of County funded facilities or infrastructure in the [CHHA] except for recreation facilities and those necessary to ensure public health and safety." Natural Resources Element Policy 1.19.2 is for the County to use its eminent domain power and regulatory authority to relocate threatened or damaged public structures and infrastructure landward of the CHHA when appropriate. Natural Resources Element Objective 1.20 is for the County to "direct concentrations of population away from [CHHAs]." Ultimate Findings of Fact Public Participation and Standing of Petitioners Plummer Petitioners Columbia and Petitioner Jordan failed to prove to the exclusion of fair debate that the contents or implementation of the public-participation procedures failed to assure broad and effective participation by all interested residents in the preparation of the Plan. The County complied in all respects with all applicable requirements of public participation. Petitioners Plummer proved that each of them is an affected person. Each of them owns or operates a business in Charlotte County. Individually and on behalf of The Historical Knights Bldg., Inc., Plummer submitted objections, recommendations, and comments during the period between the transmittal and adoption of the plan. Plummer submitted these objections, recommendations, and comments to an agent or subdivision of the County, and they pertained to matters directly involved with the plan that was then under preparation. Historic Resources Petitioners Plummer proved to the exclusion of fair debate that the plan is inconsistent with the requirement of identifying any historic districts on the FLUM. Charlotte County had created an historic district prior to the adoption of the FLUM in October 1997. The FLUM--i.e., Future Land Use Map Series No. 6-- contains historically significant properties. Although the properties are not well identified on the FLUM, Petitioners Plummer failed to prove to the exclusion of fair debate that the plan, as a whole, fails to satisfy this requirement, considered within the context of all applicable requirements. For the same reasons, Petitioners Plummer failed to prove to the exclusion of fair debate that the existing land use maps fail to designate historic resources. Historic Preservation Element Maps 9.1 and 9.2 sufficiently designate historic resources to satisfy this criterion. Petitioners Plummer proved to the exclusion of fair debate that the plan lacks any operative provision to preserve or sensitively adapt historic resources. An objective promising, by June 1, 1999, to "develop a program . . . [to] protect the County's historical and archaeological resources" is not an objective, but only a promise to adopt such an objective in the future. In the meantime, the missing objective is unavailable as a standard against which to evaluate development orders or to evaluate the internal consistency of other plan provisions. Similarly, a policy to "strive to . . . preserve [and] protect" archaeological sites and historic structures is not a policy to protect these resources. The objective and policy described in the preceding paragraph are the most demanding provisions contained in the plan for the protection of historic resources or historically significant property. These two instances of the operative provisions of the plan failing to satisfy important requirements are material, especially given the relatively weak plan provisions concerning historic resources, the ambiguities in the FLUM and existing land use map identifying historically significant properties, and the failure of the FLUM to designate the historic district. Petitioners Plummer failed to prove to the exclusion of fair debate that the plan is inconsistent with any requirements concerning the identification of historically significant and other housing for conservation, rehabilitation, or replacement. The plan sufficiently identifies such housing, and the range of potential action allowed by the requirement--conservation through replacement-- does not support a strict application of the textual part of this requirement. Absent evidence of significant historic housing stock, the County's identification of these properties on the FLUM and existing land use map was sufficient for consistency with this requirement. Sanitary Sewer and Potable Water Petitioners Starr, Petitioners Columbia, and Petitioner Jordan failed to prove to the exclusion of fair debate that the plan's requirements of mandatory connections to central water or sewer are inconsistent with any provisions protecting private property rights. Petitioners Columbia and Petitioner Jordan failed to prove to the exclusion of fair debate that the plan's requirement of mandatory connections to central sewer is unsupported by data and analysis. The record amply supports the County's decision to expand its central sewer system and require owners of improved land to connect when service becomes available. Petitioners Columbia and Jordan failed to prove to the exclusion of fair debate that the County failed to provide analysis of the fiscal impacts of existing public facility deficiencies, facility capacity by service areas, and replacement strategies. Such analysis is amply presented in the plan and, additionally, the record in these cases. With respect to Petitioner Jordan's allegations of unsupporting data and analysis, expanding central sewer into the first 12 areas reveals no discriminatory intent against lower-income or group housing, nor any lack of financial feasibility due to the income levels prevailing in the first 12 areas to be served. The evidence suggests that the areas to be served are low-lying, and the infrastructure is vulnerable to damage from coastal storms, including stormwater intrusion into the central sewer system. These facts do not deprive the plan provisions extending central sewer into these areas from support from the data and analysis in light of the greater risks to human and environmental health posed by ongoing reliance upon septic tanks in these low-lying, densely populated areas. Petitioners Columbia and Jordan failed to prove to the exclusion of fair debate that the plan provisions requiring mandatory connections to central sewer are internally inconsistent with any other provisions in the plan. With respect to Petitioner Jordan's allegations of internal inconsistency, providing central sewer in the CHHA is necessary to ensure public health and safety. Extending central sewer into the CHHA does not violate the plan provision to direct population concentrations away from the CHHA; the areas in question are largely built-out, and the risks posed by the septic tank leachate to human health and environmental resources are substantial and well-documented. The evidence does not suggest that extending central sewer will subsidize or encourage new land development in the CHHA. The choice of the first 12 areas into which to extend central sewer was clearly driven by legitimate concerns, such as lift-station capacity, environmental sensitivity, and financial feasibility, not illegitimate concerns arising out of housing discrimination. Extending central sewer into the areas selected for the first two phases of the expansion program will clearly reduce negative environmental impacts from wastewater systems and heighten the efficiency of use of the central sewer system. Expanding central sewer will not exceed the capacity of the central sewer system. Petitioners Columbia failed to prove to the exclusion of fair debate that the plan provisions requiring mandatory connections to central sewer deprive the plan of financial feasibility or operative provisions for the orderly and balanced future economic, social, physical, and environmental development. The record establishes that the requirement of mandatory connections to central sewer helps the plan achieve these requirements. Petitioners Columbia failed to prove to the exclusion of fair debate that the plan lacks an objective to correct facility deficits and maximize the use of existing facilities and a policy to establish priorities regarding public facilities. Among other provisions, the provisions establishing the USA satisfy these criteria, as between the USA and Rural Service Area, as do the provisions assigning the highest priority, within the USA, to the Infill Areas as opposed to the Suburban Areas. Petitioners Columbia failed to prove to the exclusion of fair debate that the plan provisions requiring mandatory connections to central sewer deprive the plan of the effect of discouraging urban sprawl. To the contrary, the extension of central sewer, with mandatory connections, tends to ameliorate the effects of sprawl by reducing the impacts upon natural resources of sprawling residential development. Given the vast numbers of platted lots and the County's inability to reduce these numbers significantly, the extension of central sewer to areas already platted and largely developed does not tend to encourage sprawl. Petitioners Columbia failed to prove to the exclusion of fair debate that the plan lacks a policy to establish criteria, including financial feasibility, in evaluating local capital improvement projects. Capital Improvement Element Objective 1.3 and the ensuing policy cluster--especially Policies 1.3.19 and 1.3.20.i--satisfy this requirement. For the same reasons, Petitioner Jordan failed to prove to the exclusion of fair debate that the plan lacks provisions ensuring financial feasibility Petitioner Jordan failed to prove to the exclusion of fair debate that the plan lacks an objective to restrict development activities that would damage coastal resources, protect human life, and limit public expenditures in areas subject to natural disasters. FLUE Policy 2.4.1 incorporates the Charlotte Harbor Management Plan, Charlotte Harbor Surface Water Improvement and Management Plan, and the Lemon Bay Aquatic Preserve Management Plan. Natural Resources Element Objective 1.16 is to reduce the threat of loss of life and property to catastrophic hurricanes and locate new public facilities outside of the CHHA, except for reasons of public health and safety. Natural Resources Element Objective 1.17 is to start reducing hurricane evacuation times by 2000. Natural Resources Objective 1.19 is to limit additional public investment in the CHHA, except for reasons of public health and safety. Natural Resources Element Objective 1.20 is to direct population concentrations away from the CHHA. Various policies within the clusters under these objectives satisfy the other CHHA requirements cited by Petitioner Jordan. Petitioners Starr have proved to the exclusion of fair debate that the plan provisions requiring mandatory connections to central water, as applied to the Don Pedro island chain, are unsupported by the data and analysis because they accelerate the build-out of the island chain, raise the intensity of residential use of existing and future dwelling units, attract populations to an extremely vulnerable barrier island chain within the CHHA, unnecessarily expose human life to the perils of hurricanes, mandate extremely vulnerable infrastructure investments in the CHHA by island residents without any measurable, compensating gains in public health or safety or environmental enhancement, and increase the consumption of potable water and production of septic tank leachate in an environmentally sensitive area. Petitioners Starr have proved to the exclusion of fair debate that the plan provisions requiring mandatory connections to central water, as applied to the Don Pedro island chain, are internally inconsistent with plan provisions discouraging urban sprawl, such as FLUE Goal 1 to prevent urban sprawl; FLUE Objective 1.1 to direct at least of 90 percent of urbanized development into the USA; FLUE Objective 1.3 to use the location and timing of infrastructure and services to direct growth in an orderly and efficient manner; FLUE Policy 1.3.1 to prioritize the provision of infrastructure and services first to Infill Areas, then to Suburban Areas, and last to the Rural Service Area; FLUE Objective 1.4 to reduce the number of platted vacant lots by one percent annually by 2005; FLUE Objective 1.6 to ensure that the location and intensity of development to coincide with the availability of facilities and appropriate topography and soil conditions; Natural Resources Element Objective 1.3 to protect marine and estuarine habitats; Natural Resources Element Objective 1.8 to protect existing natural preserves; Natural Resources Element Objective 1.16 to reduce the threat of loss of life and property to catastrophic hurricanes and locate new public facilities outside of the CHHA, except for reasons of public health and safety; Natural Resources Element Objective 1.17 to start reducing hurricane evacuation times by 2000; Natural Resources Element Objective 1.19 to limit public investment in the CHHA, except for reasons of public health and safety; and Natural Resources Element Objective 1.20 to direct concentrations of population away from the CHHA. However, Petitioners Starr failed to prove to the exclusion of fair debate that the plan lacks objectives and policies to protect the coastal environment and conserve potable water resources.
Recommendation It is RECOMMENDED that, pursuant to Section 163.3184(9)(b), Florida Statutes, the Department of Community Affairs submit the recommended order to the Administration Commission for final agency action. DONE AND ENTERED this 11th day of February, 2000, in Tallahassee, Leon County, Florida. ___________________________________ ROBERT E. MEALE 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 February, 2000. COPIES FURNISHED: Robert J. Starr Post Office Box 5337 Grove City, Florida 34224 Betty L. Brenneman Post Office Box 67 Placida, Florida 33946 Suzanne Neyland Post Office Box 849 Placida, Florida 33946-0849 John G. Columbia 2150 Cedarwood Street Port Charlotte, Florida 33948 Daniel R. Fletcher Post Office Box 2670 Port Charlotte, Florida 33949 Eugene J. Haluschak 3191 Lakeview Boulevard Port Charlotte, Florida 33948 John L. Harmon 3083 Beacon Drive Port Charlotte, Florida 33952 Rhonda Jordan 4437 Parmely Street Charlotte Harbor, Florida 33980 Robert K. Lewis, Jr., Attorney 6237 Presidential Court Suite A Fort Myers, Florida 33919-3508 Shaw P. Stiller Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Martha Young Burton Brendan Bradley Carl Kitchner Renee Francis Lee Assistant County Attorneys Charlotte County 18500 Murdock Circle Port Charlotte, Florida 33948-1094 Cari L. Roth, General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 315 Tallahassee, Florida 32399-2100 Steven M. Seibert, Secretary Department of Community Affairs 2555 Shumard Oak Boulevard, Suite 100 Tallahassee, Florida 32399-2100
Findings Of Fact In December, 1993, Suwannee Farms, through one of its partners, Robert Wight, applied to the Department of Environmental Protection for a wastewater treatment facility permit to be constructed on part of its property in Suwannee County, Florida. The Department of Environmental Protection requested clarification or amendment of the initial application. Suwannee Farms amended its initial application and the Department determined that the applicant had provided reasonable assurances of compliance with Florida Statutes and the Department's rules and regulations. The permittee listed on the initial application is Robert Wight. Suwannee Farms is a partnership consisting of Robert Wight and Joseph Hall. The permit is to be issued in the name of Suwannee Farms. Issuance in the name of the partnership is within the scope of the Department of Environmental Protection's authority. On January 25, 1994, the Department issued its Intent to Issue the permit. The intent to issue provided in part: Pursuant to Section 403.815, F.S. and DER Rule 17-103-150, Florida Administrative Code, you (the applicant) are required to publish at your own expense the enclosed Notice of Intent to Issue Permit. The Notice shall be published one time only within 30 days, in the legal ad section of a newspaper of general circulation in the area affected. For the purpose of this rule, "publication in a news- paper of general circulation in the area affected" means publication in a newspaper meeting the requirements of Sections 50.011 and 50.031, F.S., in the county where the activity is to take place. Where there is more than one newspaper of general circulation in the county, the newspaper used must be one with significant circulation in the area that may be affected by the permit. If you are uncertain that a newspaper meets these require- ments, please contact the Department at the address or telephone number listed below. The applicant shall provide proof of publication to the Department, at Northeast District Office, 7825 Baymeadows Way, Suite B-200, Jacksonville, Florida 32256-7577, within seven (7) days of the publication. Failure to publish the notice and provide proof of publication within the allotted time may result in the denial of the permit. The Notice Of Intent to Issue was published in the Gainesville Sun on February 5, 1994. Proof of publication was timely filed with the Department. The Gainesville Sun is a daily newspaper printed in Alachua County, Florida. The paper is available for purchase by the general public in Suwannee County, Florida and is sold to the general public at newspaper racks. Additionally, the Sun is available to residents of Suwannee County, including the area of the proposed project, through subscription and delivery via newspaper carrier "tubes." The Gainesville Sun is the only newspaper of general circulation delivered on a daily basis to homes in the area affected by the proposed permit. The Gainesville Sun contains national, state and local news stories, including local events in Suwannee County. Additionally, the Sun contains a legal ad section. The information in the Sun is of a public character and of interest and value to the residents of Suwannee County.dd The Sun has been published for more than a year in both Alachua and Suwannee Counties. At least twenty-five percent of the words in the Sun are in the English language and is entered as second class mail at the post office. There is no question that the Gainesville Sun meets the legal requirements of the Department for publication of Notices of Intent to Issue Permits in Suwannee County. Therefore, publication of the Intent to Issue Permit for the proposed wastewater facility involved in this case was appropriate. Through discovery and after an order compelling such answers, the Petitioner listed her objections to the issuance of the permit generally as noncompliance with nitrate level regulations, noncompliance with fencing regulations, noncompliance with set-back regulations and noncompliance with excessive noise and odor regulations. The evidence at the hearing demonstrated that the proposed wastewater treatment facility and land application meet the requirements of Florida Statutes and the Department's rules in the areas specified by the Petitioner as well as other areas of the statutes and rules. Suffice it to say that Petitioner offered no evidence which even remotely demonstrated that the Suwannee Farms permit did not meet these requirements or in some way failed to reasonably assure the Department that the requirements for a wastewater treatment permit with rapid rate land application would be met. Indeed, the only evidence in this case demonstrated that the technology proposed for the wastewater plant and rapid rate land application has been in use for a long time and has historically either met or exceeded the Department's requirements for nitrates (not to exceed 12 milligrams per liter), noise, odor and fecal coliform. There was no evidence submitted that would cause one to conclude that the technology for this facility would not perform as it has in the past at other locations. The plans of the facility clearly show adequate fencing and that the percolation ponds will be set-back at least 500 feet from any wells and at least 100 feet from any property line. Both fencing and pond location meet the requirements of Florida Statutes and Departmental rule. Given these facts, Petitioner has shown its entitlement to a construction permit for its proposed project.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection issue a Final Order granting the application of Suwannee Farms for a wastewater treatment facility and rapid land application permit. DONE and ENTERED this 4th day of May, 1995, in Tallahassee, Florida. DIANE CLEAVINGER 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 4th day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2800 1. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10 of Respondent's Proposed Findings of Fact are adopted in substance, insofar as material. COPIES FURNISHED: Stephen C. Bullock P. O. Box 447 Jacksonville, FL 32201 Thomas I. Mayton, Jr. Assistant General Counsel D E P 2600 Blair Stone Rd. Tallahassee, FL 32399-2400 Frederick L. Koberlein P. O. Drawer 2349 Lake City, FL 32056-2349 Virginia B. Wetherell, Secretary D E P 2600 Blair Stone Rd. Tallahassee, FL 32399-2400 Kenneth Plante General Counsel D E P 2600 Blair Stone Rd. Tallahassee, FL 32399-2400
Findings Of Fact Upon consideration of the oral and documentary evidence presented at the hearing, the following relevant facts are found: In 1984, the citizens of Pasco County approved a "straw ballot" proposal providing for the establishment of a resource recovery facility financed with non-ad valorem revenue bonds for the purpose of disposing of the County's solid waste in lieu of utilizing sanitary landfills as a primary disposal method. The Board of County Commissioners of Pasco County thereafter commissioned the consulting engineering firm of Camp Dresser and McKee (CDM) to perform a resource recovery feasibility study and to identify a site for the facility. CDM concluded that a resource recovery facility was an economically feasible approach to solid waste management for Pasco County. After evaluating seven sites for such a facility, CDM recommended a 751-acre site on Hays Road in western Pasco County. The County purchased the site at a cost of approximately three million dollars. In 1987, the Legislature adopted a Special Act, Chapter 87-441, Laws of Florida, establishing a solid waste disposal and resource recovery system within Pasco County and giving the County exclusive control over the collection and disposal of solid waste generated or brought within the area affected by the Act. The solid waste disposal and resource recovery system proposed by the County will convert solid waste into electrical power through a process of combustion, utilizing a mass-burn technology, followed by landfilling of the ash residue. Initially, the "waste-to-energy" facility will have three combustion/steam generation units, which will dispose of 900 tons of refuse each day and produce approximately 22 megawatts of electricity. A fourth combustion unit may be added in the future, thus allowing the facility to dispose of 1,200 tons of refuse each day and produce 29 megawatts of electricity. The resource recovery facility and landfill/ashfill is designed with the purpose of complying will all applicable environmental regulations. Best available control technology will be utilized to minimize the emissions of air pollutants. The facility will use a baghouse with fabric filters to control particulate emissions and a dry scrubber to control acid gas emissions. The landfill will have two synthetic liner systems and two leachate collection systems to maximize the protection of groundwater resources. Stormwater on the site will be treated in retention/detention basins, and there will be no discharges of wastewater on the site. Ferrous metals in the solid waste will be recovered and recycled. The undeveloped 751 acre parcel of land owned by the County is located in an unincorporated area of northwest Pasco County. It is approximately two and a half miles north of Highway 52 and about four to five miles west of Route The site is accessible by Hays Road, which forms its southern and western boundaries. Shady Hills Road runs to the east of the site and Blue Bird Lane runs along the northern perimeter. The parcel is bisected by Florida Power Corporation power lines, which run in a north/south direction. All development on the site relating to the proposed resource recovery facility will be east of the power lines. The site primarily consists of grasslands and wooded areas. Most of the areas near the site boundaries are wooded. An access road from Hays Road would be constructed to lead to the resource recovery facility, and the site would also contain a landfill/ashfill and several stormwater retention ponds. The resource recovery facility will be located on the southeastern portion of the site, approximately 4,600 feet from the site's northern boundary. The facility will be approximately 2,400 feet from the nearest residence, which is located on Hays Road. There will be at least 250 feet of buffer area between the resource recovery facility and the property boundaries. There will be at least 700 feet of buffer area between the landfill and the northern boundary of the site. The ashfill portion of the project would be developed over a 25 to 35 year period. The areas surrounding the site consist of agricultural and very low density residential developments. The areas to the east, southeast, and southwest are very sparsely populated. There is scattered low density residential development to the north, northeast and northwest, and some scattered residences south and southwest of the site. The subject parcel of land lies within the Pasco County Zoning Code's A-C Agricultural District. According to the Pasco County Zoning Code, Ordinance No. 75-21, the purpose of the A-C Agricultural District is to preserve the rural and open character of various lands within Pasco County. The principal permitted uses within this District include agriculture, general farming and horticulture; single family dwellings; duplexes; home occupations; public and private parks and playgrounds; mineral extraction activities; and residential treatment and care facilities. Accessory uses include private garages and parking areas, private swimming pools and cabanas, and signs. Special exemption uses within the A-C Agricultural District include country club and golf course, aircraft landing fields, cemeteries, animal hospitals, sanitary landfills and public buildings and public utility facilities which do not cause an undue nuisance or adversely affect existing structures, uses and residents. Ordinance Number 82-04, Section 2, amended the Pasco County Zoning Code to exempt from its provisions "development and other activities conducted by Pasco County." (Exhibit No. 3) It was the opinion of Pasco County's Zoning Administrator that the proposed resource recovery facility and landfill/ashfill were exempt from the County's Zoning Code. The County's present Planning Director concurred with this opinion. It was further the opinion of the Zoning Administrator that even if the project were subject to the requirements of the Zoning Code, it could be built as a special exemption use in the A-C Agricultural District. Pasco County has an ordinance, known as the New Development Fair Share Contribution for Road Improvements Ordinance, which requires developers to pay impact fees for transportation purposes. According to the County Planning Director, this ordinance expressly excludes County projects from its provisions. It was the opinion of the County's land use planning and zoning experts that the use of the site for a resource recovery facility would be compatible with surrounding land uses. The project will be designed so as to be barely visible from surrounding areas and to give as pleasing an aesthetic appearance as possible to the site. When a detailed site plan for the facility is prepared, the project will be evaluated by the Pasco County Development Review Committee, composed of County employees from various departments, to ensure that the project is consistent with existing regulations and compatible with surrounding land uses. The Pasco County comprehensive land use plan was adopted in 1982 and is currently being revised. It is a policy document containing various planning elements, with goals, objectives, policies and recommendations. It does not currently include a land use map that specifically identifies the permissible land uses for the site of the proposed resource recovery facility. In the process of updating its comprehensive plan, the County will adopt a future land use map. The Chief Planner for the Pasco County Planning Department testified that the land use map to be submitted for future adoption will designate the proposed site as a resource recovery site. The County's comprehensive plan contains a solid waste and resource recovery element. The plan recognizes waste disposal as a crucial concern, and the goal of this element is to dispose of the County's domestic and industrial waste in the safest and least expensive manner. From an engineering perspective, the project will be designed to comply with applicable state and federal requirements pertaining to air and water pollution. The economic feasibility of a resource recovery facility has been studied, with positive results. Other elements of the Pasco County comprehensive plan relevant to the proposed resource recovery facility include the traffic circulation element, the water element, the conservation/coastal zone protection element, the drainage element and the utilities element. A traffic analysis demonstrated that current levels of service on State Road 52 and on Hays Road will not be diminished as a result of project operations. The use of reclaimed water will promote the objective of water conservation. The proposed site has not been designated for preservation or conservation and the project will have minimal impact on wetland areas. The stormwater management system will be designed so that runoff will not be channelized into any natural surface water body. The retention basins will be of sufficient size to allow adequate settling of suspended solids collected with the stormwater. By producing electrical power as a by-product of solid waste disposal, the project will further the objective of the comprehensive plan's utility element of encouraging the conservation of limited resources in the operations of utility systems. On December 31, 1987, notice of the land use hearing was published in the Pasco Times newspaper, a daily newspaper of general circulation which has been continuously published at Port Richey in Pasco County, Florida, each day for a period in excess of one year preceding the publication of notice in this case. In addition, notice of the land use hearing was published in the Florida Administrative Weekly, Volume 13, Number 53, on December 31, 1987. The Department of Environmental Regulation issued a news release concerning the land use hearing on December 24, 1987. By letters dated December 28, 1987, notice was given by certified mail to the Executive Director of the Tampa Bay Regional Planning Council, the Pasco County Planning Department and the Pasco County Zoning Administrator. Notice of the land use hearing was also posted at the project site. Eight persons, all of whom resided or owned property near the proposed site, testified at the land use hearing as members of the general public. All opposed the construction and operation of a resource recovery facility and landfill/ashfill at that site. Though none of the witnesses claimed to have expertise concerning the subject matter of their testimony, their concerns included the impacts of the proposed project upon the environment; the value and use of their land, homes and businesses; the recreational value of surrounding properties and the general agricultural character and nature of the surrounding land. Concerns were also expressed over the safety features and costs involved in the operation of the facility. These citizens of Pasco County did not believe it was proper for the County to exempt itself from the County's zoning laws and impact fees.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board, enter a Final Order finding that the use of the site chosen by Pasco County for the location of its proposed solid waste and resource recovery facility is consistent with and in compliance with the applicable land use plans and zoning ordinances. Respectfully submitted and entered this 25th day of March, 1988, in Tallahassee, Florida. DIANE D. TREMOR 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 25th day of March, 1988. APPENDIX "A" TO RECOMMENDED ORDER, CASE NO. 87-5337 Pasco County's proposed findings of fact have been fully considered and are accepted and incorporated in this Recommended Order, with the following exceptions: 16, second sentence: Rejected as speculative. See Finding of Fact Number 10. 22, last sentence: Rejected as improper factual finding, but addressed in the Conclusions of Law. 23, last sentence: Rejected as argumentative and improper factual finding, but addressed in Conclusions of Law. COPIES FURNISHED: David S. Dee Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A. Post Office Drawer 190 Tallahassee, Florida 32302 Richard T. Donelan, Jr. Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399 C. Lawrence Keesey Rhyne Building 2740 Centerview Drive Tallahassee, Florida 32399 Edward B. Helvenston 2379 Broad Street Brooksville, Florida 34609-6899 Mike Twomey Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301 Honorable Bob Martinez Governor The Capitol Tallahassee, Florida 32399 Honorable Bob Butterworth Attorney General The Capitol Tallahassee, Florida 32399 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399 Honorable Gerald Lewis Comptroller The Capitol Tallahassee, Florida 32399 Honorable Bill Gunter Insurance Commissioner The Capitol Tallahassee, Florida 32399 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399
Findings Of Fact At final hearing, the parties stipulated to the following facts: The Department of Environmental Regulation is an administrative agency of the State of Florida created by Chapter 75-22, Laws of Florida, and vested with the power and duty to implement and enforce the provisions of the Florida Air and Water Pollution Control Act, Part I, Chapter 403, Florida Statutes. Pursuant to these Acts, the Department is authorized to regulate the construction and operation of solid waste disposal facilities and stationary installations reasonably expected to be sources of pollution. Respondent, City [of North Miami], owns the property on which is located a solid waste facility known as "Munisport Sanitary Landfill" located at 14301 Biscayne Boulevard, North Miami, Dade County, Florida; latitude 25 degrees 54' 9" North, longitude 80 degrees 9' 5" West in Sections 21 and 22, Township 52 South, Range 42 East. Respondent, Munisport, operates a solid waste disposal facility under contract with the City. On March 7, 1977, the Department issued to the City of North Miami permit/certification number 13-31-028GM (hereinafter "dredge and fill permit") which modified and superseded permit/classification number 13-31-0286. The permit was issued under the provisions of Sections 253.123, 253.124, and 403.087, Florida Statutes, and Chapter 17-4, Florida Administrative Code. The permit also provided water quality certification required by Public Law 92-500. The dredge and fill permit was issued for the purpose of constructing a continuous 5,000 foot-long earthen dike with a modified top width of 12 feet aligned waterward of the mean high water line such that the waterward toe of the dike would be on or landward of the property line. Approximately 6,000 cubic yards of material would be dredged from the 63-acre tract located behind the dike and waterward of the mean high water line. Portions of the tract would be excavated to minus 35 feet mean low water to form nontidal lakes. Approximately 1,000,000 cubic yards of fill material would be enplaced as follows: Clean fill to be utilized to produce an elevation of a minimum of two feet above the calculated ground water table, after which fresh refuse and a two-foot final cover of clean fill would be placed. Within a zone of 100 feet from the landward crest of the dike, yard trash and construction debris would be the only types of solid waste acceptable as fill, and A ten-foot wide by three-foot deep circulation canal would be dredged on the outside perimeter of the dike. General condition 13 of the dredge and fill permit provides that the permit does not indicate an endorsement or approval of any other Department permit/approval that may be required for other aspects of the total project. A solid waste operation permit would also be required. On June 8, 1979, the City and Munisport received from the Department Operation Permit No. SWO-13-5152 (hereinafter "solid waste operation permit"). The purpose of the solid waste operation permit was to allow and regulate the placement of solid waste (refuse, yard trash and construction debris) in the area behind the dike described above and on adjacent uplands in order to generate an appropriate elevation for a golf course. General condition number two of the solid waste operation permit states that: This permit is valid only for the specific processes and operations indicated in the attached drawings or exhibits. Any authorized deviation from the approved drawings, exhibits, specifications, or conditions of this permit shall constitute grounds for revocation and enforcement action by the Department (emphasis added). Specific condition number six of the solid waste operations permit provides that the subject facility be operated at all times at the maximum level of efficiency so as to minimize the adverse effect on the environment of contaminated storm water runoff or leachates which cause degradation of surface or ground waters. Specific condition number nine of the solid waste operation permit provides that "no solid waste shall be placed within thirty feet of any existing or future lake". Prior to the issuance of the solid waste operation permit, Respondents' permit application was subjected to a de novo review during a Section 120.57(1), Florida Statutes, hearing requested by the Florida Audubon Society and others. The record of these proceedings explained and expanded upon the application and, therefore, became a part thereof. Respondents' consultant testified in these proceedings as follows: We have an agreement with the Department of Environmental Regulation that goes back several years that we would not dig up any old land fill material nor would we place any land fill material in an area that would eventually become a lake. Testimony of Mr. Thomas Joseph Checca on October 18, 1978; Transcript of proceedings in Florida Audubon Society, et al. v. State of Florida, Department of Environmental Regulation, City of North Miami, Florida and Munisport, Inc., DOAH Case No. 78-316. On October 25, 1979, an inspection of the above-described facility was made by Mr. Scott Quaas, an employee of the Department, who observed that two lakes had been constructed in old waste on the site without the required 30-foot setback as required by the aforementioned permit conditions. A letter of notice was issued by the Department regarding that and other violations on November 16, 1979. On December 18, 1979, a follow-up inspection of the subject facility was made by Mr. Quaas, at which time it was observed that two more lakes had been excavated through waste previously deposited at the site, thereby causing such waste to come in direct contact with the water in the lakes adjacent thereto. It was also observed that no 30-foot setback was provided at the new lakes. Notice of these additional violations was provided to Munisport on January 16, 1980. An on-site meeting regarding the above-described violation was held on January 24, 1980, at which time it was agreed that Respondents would reply by February 1, 1980, as to whether corrective actions would be taken regarding the aforementioned violations. As of the date of final hearing in this cause, corrective action had been taken to eliminate these violations. Specific condition number 13 of the solid waste operation permit requires the posting of a performance bond or other security acceptable to the Department which adequately covers the cost of monitoring and final closing procedures required under the permit and Chapter 17-7, Florida Administrative Code, and procedures listed in the application for permit which may become necessary to correct any pollution detected at the site in violation of Department rules. No such bond or security has been posted with the Department. Extensive discussions between the Department and representatives of the City and Munisport have failed to produce agreement regarding the terms of a performance bond or security. The parties were notified of this violation and were given an opportunity to respond. Leachate (runoff containing pollutants) has been allowed to enter lakes on the site. A leachate plume containing ammonia has been detected beneath the subject sanitary landfill site, which plume has reached ground waters of the State and is being observed to be moving off the site in an east- southeast direction, toward Biscayne Bay. This leachate plume contains total Ammonia-Nitrogen (NH3-N) in amounts which are substantially in excess of the water quality standards of .5 milligrams per litre for Dade county, Florida. See, Chapters 24-11(4), Dade County Code. It was not anticipated when Operation Permit Number SWO-13-5152 was issued that leachate would be allowed to enter the lakes or that a leachate plume would form in the manner which is presently being observed. In addition to being a pollutant, Ammonia-Nitrogen is the first substance generally observed when a leachate plume forms. There exists a significant possibility that other pollutants contained in solid waste deposited at the site will also begin to reach ground waters of the State and the waters of Biscayne Bay. General condition number eight of the solid waste operation permit states that: This permit does not relieve the permittee from liability for harm or injury to human health or welfare, animal, plant, or aquatic life or property and penalties therefore caused by the construction or operation of this permitted source, nor does it allow the permittee to cause pollution in contravention of Florida Statutes and department rules, except where specifically authorized by an order from the department granting a variance or exception from department rules or state statutes. Specific condition number 15 of the solid waste operation permit states that: These permit conditions do not exempt the applicant from complying with pollution control requirements of other Federal, State, Municipal, County or Regional water pollution control rules, regulations, ordinances or codes, nor does it authorize any violation thereof.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered revoking the permits and certification which are the subject of this proceeding in their entirety or such lesser action as may be deemed appropriate by the Department in the exercise of its discretion as the State agency charged with the power and duty to control and prohibit the pollution of air and water under Section 403.061, Florida Statutes, and as the agency responsible for the implementation and enforcement of the provisions of the Florida Resource Recovery and Management Act which regulates the appropriate disposal of solid waste and landfill operation in this State. DONE and ENTERED this 24th day of February, 1981, in Tallahassee, Leon County, Florida. WILLIAM E. WILLIAMS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1981. COPIES FURNISHED: William P. White, Jr., Esq. Deputy General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Willard K. Splittstoesser, Esq. 776 N.E. 125th Street North Miami, FL 33161 Marvin P. Sadur, Esq. 2000 L. Street, N.W., Suite 612 Washington, D.C. 20036
Findings Of Fact The proposed site for the resource recovery unit is located on 160 acres of the northeast quarter of Section 17, Township 53 South, and Range 40 East in Dade County. This site is presently undeveloped and bordered on the east by the Dade County Northwest 58th Street landfill. The resource recovery facility as proposed consists of a three thousand (3,000) tons per day solid waste resource recovery facility and two 38.5 meggawatt steam electric generating turbines, and one 80 acre landfill. The proposed operations call for the separation of ferrous and aluminum metals and glass from combustible material. The combustible material is to be pulped, dried, and burned in four (4) boilers to produce steam for the generation of electricity. On a daily basis the resource recovery boilers will require 1.76 million gallons of water to operate the cooling towers. Cooling tower blow- down, boiler blow-down, and landfill leachate will be utilized in a hydro- pulping process to process the solid wastes prior to combustion. As a result of this waste water usage, no industrial waste water will be discharged from the site. Potable water will be supplied by the Miami Dade Water and Sewer Authority. Sanitary wastes will be treated in a sewage treatment plant on the site. The cooling water will be withdrawn from a portion of the Biscayne Aquifer contaminated by leachate from the Northwest 58th Street landfill. The South Florida Water Management District has concluded that the Biscayne Aquifer would be capable of supplying the non-potable water requirements of the proposed facility. In addition, the withdrawal of water for the facility would alleviate the impact of the leachate plume from the 58th Street landfIll, which plume of contaminated water is moving eastward to the Miami Springs wellfield. The construction of the resource recovery facility would allow the closing of the 58th Street landfill and would thereby prevent the continued production of contaminated leachate and would reduce problems of flies, rodents, and odors. The construction of the resource recovery facility will involve extensive grading, filling, and removal of vegetation on the proposed site. Due to previous drainage and development of the surrounding area, however, the site is situated in a degraded everglades habitat the hydrologic regime of which has been drastically altered and now supports relatively little wildlife. Surrounding land uses would make future restoration difficult. The destruction of the grasses, and other vegetation on the site would have little environmental impact. The resource recovery facility site is owned by Dade County and will be operated by Dade County Resource Recovery, Inc. Steam produced at the resource recovery facility will be sold to Florida Power and Light Company for the generation of electricity. Some 61 meggawatts of electricity will be generated and distributed throughout the Florida Power and Light transmission system. The electricity generated by this facility will eliminate the need for over one million barrels of imported fuel oil each year and will produce a net savings to the customers of Florida Power and Light. The resource recovery facility will utilize cyclonic collectors and high efficiency electrostatic precipitators to remove fly ash from the burning of processed refuge. Plant air will be injected into the boiler or will be passed through activated carbon filters to eliminate odors. As a result of these control measures, the resource recovery facility will comply with state and federal emission limitations and ambient air quality standards. Although the facility may contribute slightly to a violation of the Dade County Ambient Air Quality Standards, the Director of the Dade County Environmental Resources Management Board did not feel that the facility would cause a problem. The resource recovery facility would utilize the latest reasonably available control technology for the control of emissions to the atmosphere. The use of the proposed equipment will result in a very small incremental increase of sulphur dioxide and particulate matter into the ambient air. These emissions are less than the federal significant deterioration limits and the increases in air pollution levels are not expected to significantly degrade air quality in the area. The Florida Public Service Commission report of October 7, 1977, states that 62 meggawatts of electricity would enhance the reliability of Florida Power and Light's system and would displace residual fuel oil so that some benefit would be derived from construction of the facility. The Division of State Planning did not submit a report as required by Section 403.507(1)(a), Florida Statutes. The Department of Natural Resources, Game and Fresh Water Fish Commission, Department of Commerce, and South Florida Regional Planning Counsel offered comments on the facility supportive of its construction and operation. Comments and objections from the Department of Health and Rehabilitative Services, South Florida Water Management District, the Division of Archives, History and Records Management, were resolved by the provision of additional information and proposed conditions of certification. No opposition from these agencies was presented at the conclusion of the hearing. The Department of Environmental Regulation recommended certification of the Dade County Resource Recovery facility in accordance with the proposed general and special conditions of certification. The applicant has stipulated and agreed that the general and special conditions of certification, as proposed at the hearing, should be imposed if certification is granted. At the conclusion of the presentations by the parties to this proceeding, opportunity was given to the general public to comment on the application for site certification. No such individuals appeared and no comments were offered. After examining the sum and substance of the testimony and evidence offered, it appears that the construction of the resource recovery facility would provide for the closing of inadequate sanitary landfills and inadequate air polluting incinerators. Further, the operational safe guards of the proposed facility are sufficient to protect human health, wildlife and aquatic life. Finally, the construction and operation of the proposed facility will not violate state air or water pollution standards.
Recommendation It is therefore recommended that the proposed site be found and held to be in conformity with existing land use plans and zoning ordinances in effect as of this date, and it is further recommended that the responsible zoning or planning authorities be restrained from hereafter changing such land use plans or zoning ordinances so as to affect the proposed site. DONE AND ENTERED this 22nd day of November, 1977, in Tallahassee, Florida. KENNETH G. OERTEL, Director Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32304 (904) 488-9675 Copies furnished to all parties
The Issue Whether the costs incurred by the Department of Environmental Protection, Bureau of Emergency Response (Department) in connection with its response to Incident Number 95-SE-0248 may be recovered from Petitioners pursuant to Chapters 376 and 403, Florida Statutes.
Findings Of Fact The Department is a state regulatory agency charged with the responsibility of administering and enforcing the provisions of Chapters 376 and 403, Florida Statutes. Spill Response, Inc. (Spill Response) is a corporation which was formed in approximately 1986 or 1987, and is presently inactive and without any assets. At all times material to the instant case, George Gordon has been the sole owner, president and director of Spill Response, and, as such, has directed the operations of the corporation. Spill Response was previously in the oil spill response business, as its name suggests. At such time, it had an office in Port Everglades and stored its equipment on fenced and gated property located at 3211 Southwest 50th Avenue, Davie, Florida, on which approximately a dozen large aboveground petroleum storage tanks (surrounded by concrete containment areas) also were situated. At all times material to the instant case, the property located at 3211 Southwest 50th Avenue, Davie, Florida (FPR site) has been owned by Florida Petroleum Reprocessors, Inc. (FPR), an inactive corporation that previously was in the waste oil recovery business. The FPR site, which is presently FPR's only asset, is the subject of a pending foreclosure action initiated by Charles Green, who, at all times material to the instant case, has held a first mortgage on the property. At all times material to the instant case, George Gordon has been the president and director of FPR, and, as such, has directed the operations of the corporation. In the latter part of 1994, the storage tanks on the FPR site were no longer in commercial use. At that time, Gordon, on behalf of FPR, hired Fred Rice to clean and maintain the site in preparation for its closure. Rice was instructed to remove the petroleum residue and sludge from the tanks and from the containment areas. Rice engaged in these petroleum and sludge-removal activities on a part-time basis until the spring of 1995, when he stopped working on the project after not having received timely payment for work he had performed. Rice placed the petroleum residue and sludge that he had removed, as well the rags and other materials that he had used in the removal process, in 55-gallon drums. He filled approximately six or seven such drums. A number of other 55-gallon drums containing petroleum residue and sludge (that some person or persons other than Rice had filled) were already on the FPR site. Rice put the six or seven drums that he had filled on a truck that was parked on the site and had “Spill Response, Inc.” and “Florida Petroleum Reprocessors, Inc.” markings on its sides. The truck was owned by Spill Response and had been on the site for some time. It had no battery and was inoperable. Rice told Gordon that he had put the drums he had filled with petroleum residue and sludge on the Spill Response truck. The next time Gordon went the FPR site, in late May of 1995, he discovered that the locks on the gates had been changed and that there were vehicles and equipment on the property that did not belong there. Gordon telephoned the Davie Police Department to complain about the unauthorized use of the FPR site. A police officer was dispatched to the site to investigate. When the officer arrived on the scene, he encountered Gordon outside one of the gates. Although the gate was locked, Gordon and the officer gained access to the site by squeezing through an opening in the gate. Upon entering the site, they looked around. Based upon what they saw, they correctly "figured out" that Certified Crane and Rigging, Inc., d/b/a Certified Equipment Management Company (Certified) was storing its crane equipment and trucks on the site. At all times material to the instant case, Certified has been owned and operated by William "Skip" Walton. Walton is an acquaintance of the aforementioned Charles Green, the holder of the first mortgage on the FPR site. Certified's telephone number was painted on the equipment and vehicles it was storing on the FPR site. The police officer called the number and spoke with Walton. Following his telephone conversation with Walton, the officer informed Gordon that Walton had indicated, during the conversation, that he was leasing the FPR site from Green. Gordon advised the officer that he did not want to press criminal charges (for trespassing) against either Certified or Walton. Gordon subsequently telephoned Green. Green told Gordon that it was true that he had leased the FPR site to Walton. Green explained to Gordon that he "needed to earn some money from the property." (It had been some time since Green had received any mortgage payments from FPR or Gordon.) Gordon contacted his attorney to discuss with her what legal action, if any, he could take to regain possession of the FPR site and be compensated for the unauthorized use of the property. Gordon's attorney advised him that he "would have recourse if [he] wished to pursu[e] the matter in court," but that it might not be cost-effective for him to do so. Gordon took no action, "in court" or otherwise, to regain possession and control of the FPR site; nor did he take any action to retake possession and control of the Spill Response truck or the filled drums that were in the truck and elsewhere on the site. Furthermore, he made no effort to make sure that the drums and their contents were stored and disposed of properly, believing that the proper storage and disposal of these items were now the responsibility of the new occupant of the site. He did not return to the FPR site for over a year. On or about June 6, 1995, the Department was notified (after its regular business hours) that the Spill Response truck had been discovered abandoned on the side of the road a few blocks from the FPR site. The following day,1 Ann Meador, an Environmental Specialist III with the Department, went to the location where the truck had been abandoned and served as the Department's on- scene coordinator. The truck was in poor condition and still inoperable. It had been brought (not driven) to the location by someone other than Gordon. The truck contained 37 sealed 55-gallon drums, which were in poor condition (but not yet leaking) and had oil residue on the outside. It could not be reliably determined exactly what was in the drums without removing them from the truck and examining and analyzing their contents. Meador made arrangements for OHM Remediation Services Corporation (OHM), with whom the Department had a contract to perform such services on an emergency basis, to assist in the removal of the drums from the truck. OHM personnel (with "Level B" protective clothing and equipment) responded to the scene and removed all 37 drums from the Spill Response truck. After the drums were unsealed, their contents were examined and sampled to the extent possible2 (as were the contents of three additional drums which were filled with the "Level B" protective clothing and equipment that OHM personnel had used during the cleanup operation and then discarded). Each of the drums was assigned a number for identification purposes. To save time and money, samples from some of the drums were composited. The drums were then overpacked and taken to the Department’s hazardous waste storage facility in West Palm Beach, Florida. The Department paid OHM $7,046.93 from the Water Quality Assurance Trust Fund for the services OHM performed. In requesting OHM to perform these services and in paying OHM $7,046.93 for having done so, the Department acted reasonably and prudently. The amount it paid OHM was not excessive. The Department hired Laidlaw Environmental Services (Laidlaw) to analyze the samples that OHM had collected and to then properly dispose of the drums and their contents. Laidlaw's analysis revealed the following: drums numbered 1, 2, 3, 4, 5, 9, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 30, 34, 35, 36, 37, and 38 contained oily sludges, oil, oil mixed with water, or oily residues; drum numbered 6 contained benzene and had a flash point between 73 and 140 degrees Fahrenheit; drum numbered 29 contained benzene and lead and had a flash point of less than 73 degrees Fahrenheit; drums numbered 10 and 11 contained benzene and lead; drums numbered 7, 8, 31, 32, 33 and 39 contained benzene, lead, and cadmium. Laidlaw properly disposed of the drums based upon the results of its analysis. The Department paid Laidlaw $21,163.90 from the Water Quality Assurance Trust Fund for the services it performed. In requesting Laidlaw to perform these services and in paying Laidlaw $21,163.90 for having done so, the Department acted reasonably and prudently. The amount it paid Laidlaw was not excessive. The Department reasonably incurred other expenses (also paid from the Water Quality Assurance Trust Fund) totaling $129.82 in connection with its response to the report it had received concerning the abandonment of the Spill Response truck. The total amount the Department paid from the Water Quality Assurance Trust Fund to have the drums on the truck properly removed and disposed of was $28,340.65. It was not until Gordon received a letter from the Department advising him of the costs the Department had incurred and requesting that Spill Response and he reimburse the Department for these costs that Gordon became aware of the fact that the truck and the drums had been moved from the FPR site.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department finding that it is entitled to recover from Petitioners, pursuant to Chapters 376 and 403, Florida Statutes, the $28,340.65 in costs the Department reasonably incurred in connection with its response to Incident Number 95-SE-0248. DONE AND ENTERED this 8th day of June, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1998.
