The Issue Whether Southern Hy Power Corporation (Hy Power) has provided reasonable assurance, based on plans, test results, or other information, that its proposed hydroelectric facility will comply with the Management and Storage of Surface Water (MSSW) statutes and rules of Southwest Florida Water Management District (SWFWMD) and the Wetland Resource Management permit (WRM)/water quality certification statutes and rules of the Florida Department of Environmental Protection (DEP).
Findings Of Fact By Joint Prehearing Stipulation the parties agreed to the following description of the parties and the project: PARTIES: The Department of Environmental Protection (the Department) is a government agency in the State of Florida existing by virtue of Section 20.255, Florida Statutes, and operating pursuant to Chapters 253, 373, 376, and 403, Florida Statutes, and Title 62, Florida Administrative Code. Under an interagency agreement with SWFWMD, the Department also implements Title 40D, Florida Administrative Code. The Department is located in Tallahassee, Florida, and it has a district office in Tampa, Florida, which district includes Levy County. Southern Hy Power Corporation is a Florida Corporation whose principal offices are located at 7008 Southwest 30th Way in Gainesville, Florida. Betty Berger is an interested party with a mailing address of Post Office Box 83, Inglis, Florida. The Campbells are an interested party with a mailing address of 245 Palm Street, Inglis, Florida. Hy Power applied on August 31, 1993, to the Department for a WRM permit/water quality certification to construct a hydroelectric facility on the Inglis By-Pass Channel. The project is located in Section 12, Township 17 South, Range 16 East, within the town of Inglis in Levy County. The facility consists of a powerhouse located on the south side of the channel measuring about 28 feet wide by 115 feet long, drawing water from the Inglis By-Pass Channel, passing it through a single-pit type turbine and discharging downstream of the Inglis By-Pass Spillway Dam. Hy Power applied on August 4, 1998, to the Department for a MSSW permit for the same proposed hydroelectric facility on the Inglis By-Pass Channel. DESCRIPTION OF PROPOSED PROJECT The project involves the construction of an intake structure, powerhouse, and tailrace on a 0.61-acre area located on the south side of the existing Inglis By-Pass Spillway. The facility will take advantage of the existing hydrostatic head that exists on either side of the Spillway Dam, to generate electricity. The powerhouse will be constructed below grade and will contain a single megawatt turbine and generating unit. The intake structure will divert flows from the upstream side of the Spillway Dam through the powerhouse and back into the By-Pass Channel. A small one-story control building and low profile substation will be constructed above grade within the boundaries of the project area. The hydroelectric project is considered to be a "Run of the River" type of facility because it can only use that water which flows down the existing channel. The geometry of the channel restricts flow to a certain amount, therefore the project cannot create or use flows above those that the By-Pass Channel can provide. The overall authority for control of water levels in Lake Rousseau and flow to the lower Withlacoochee River will remain with the DEP. Lake Rousseau was created in 1909 when the Inglis Dam was constructed across the Withlachoochee River for the purposes of hydroelectric generation. The dam impounds over 11 miles of the Withlachoochee River and forms a lake approximately 3,000 to 4,000 acres in size. Prior to construction of the Barge Canal, water released from the Inglis Dam would flow down the lower portion of the Withlachoochee River about 10 miles before entering into the Gulf of Mexico. In the mid to late 1960's the Army Corps of Engineers (ACOE) built a portion of the Cross Florida Barge Canal between the Gulf of Mexico and Lake Rousseau. The canal severed the Withlachoochee River downstream of the Inglis Dam causing its flow to be diverted into the Barge Canal and then into the Gulf. In order to maintain the flow of freshwater from Lake Rousseau to the lower segment of the River, the 8,900-foot long Inglis By- Pass Channel and Spillway were constructed. The resulting downstream flow ensures navigation in the lower portion of the River and sustains its freshwater and estuarine environment. The water level in Lake Rousseau is generally maintained at an elevation of 27.5 feet above mean sea level (msl) by a combination of the Inglis Dam, the Inglis Lock, which is located in the Barge Canal, and the By-Pass Channel Spillway. These water control features are known collectively as the Inglis Project Works. The water levels in the lower Withlachoochee River immediately to the west of the By-Pass spillway are close to sea level. The resulting head provides the potential energy needed to drive the proposed generator turbine. Under normal conditions the majority of water released from Lake Rousseau flows over the Spillway Dam into the lower segment of the River. According to the DEP Office of Greenways and Trails (OGT), the maximum capacity of the existing By-Pass Channel Spillway is 1,540 cubic feet per second. The hydroelectric project will divert whatever flow is allowed around the existing spillway through the turbine and back into the channel. When the Cross Florida Barge Canal project was cancelled in the 1990's, the ACOE transferred ownership of the property to the State of Florida Board of Trustees, who in turn has leased the property to the DEP for use as the Cross Florida Greenbelt State Recreation and Conservation Area. Management of this property, the control of river flow and lake levels, and operation of the Inglis Project Works are exercised by the DEP's OGT. The OGT utilizes a document entitled "Water Control Plan for Inglis Project Works," dated September 1994, as a guide to operating the structures. The Water Control Plan is incorporated as part of the MSSW intent to issue. On or about April 25, 1995, the Governor and Cabinet, sitting as the Board of Trustees of the Internal Improvement Trust Fund ("Trustees"), approved a request from Hy Power to sublease 0.61 acres of Greenway property at the project site for the purpose of providing electric power. The request was challenged by Berger and the Campbells, and resulted in an administrative hearing held on November 3, 1995. As a result of the hearing, Administrative Law Judge Larry Sartin entered a Recommended Order on July 12, 1996, that the Board enter an order approving execution by the DEP of the proposed sublease and dismissing the petition of Berger and the Campbells. The Recommended Order was approved by the Trustees in its entirety in a Final Order dated April 12, 1996 ("Final Order"). Berger v. Southern Hy Power Corporation et al., Case No. 95-3589. A copy of the Final Order is listed as an exhibit to this Stipulation, and the Findings of Fact and Conclusions of Law contained therein are adopted herein. As previously ruled by the undersigned, the previous Final Order is res judicata as to Petitioners in this case, who are collaterally estopped from challenging any of the findings of fact or conclusions of law contained in the previous Final Order. Petitioners reserve the right to litigate issues of fact and law not addressed in the Findings of Fact or Conclusions of Law contained in that Final Order with regard to the permittability of this project under the WRM and MSSW permitting proposals, and to raise objections as to relevance to this proceedings of any of the Findings of Fact or Conclusions of Law in the Final Order. On February 21, 1995, Hy Power filed application with the Federal Energy Regulatory Commission (FERC) for a conduit exemption from the licensing requirements of Part I of the Federal Powers Act (FPA) for the proposed project. Petitioners and various other persons filed protests with FERC in opposition to the project. On April 21, 1997, FERC issued an Order Granting Conduit Exemption, a copy of which is listed as an exhibit to this Stipulation. Petitioners in this case are collaterally estopped from challenging any of the findings or conclusions contained in that Order Granting Conduit Exemption. Petitioners reserve the right to litigate issues of fact and law not addressed in the Findings of Fact or Conclusions of Law contained in that Order Granting Conduit Exemption with regard to the permittability of this project under the WRM and MSSW permitting proposals, and to raise objections as to relevance to this proceedings of any of the findings or conclusions in the Order Granting Conduit Exemption. FACTS ADDUCED AT HEARING OUTLINE OF PROJECT The proposed project calls for the construction of a water retention structure along the existing By-Pass spillway, the excavation of a large hole in which the powerhouse and turbine would be constructed "in-the-dry" south of the existing dam, and a millrace below the proposed project to return the water back into the existing water course. Conflicting testimony was received regarding the facts surrounding the construction of the project. These included: whether the proposed project will touch the existing wing walls of the existing dam; whether the water retention structure is a coffer dam; whether the proposed water retention structure will safely retain the water; whether the powerhouse and turbine have sufficient negative buoyancy to stay in the ground; whether the proposed excavation will weaken the existing dam; and whether the de-watering of the excavation site will adversely impact ground and surface water. PROJECT DESIGN AND ENGINEERING Engineering for the project was directed by witness Richard A. Volkin, a professional engineer and president and CEO of Engineering Company, Inc., based in Canton, Massachusetts. Mr. Volkin has extensive national and international experience in the design, management, and operation of hydroelectric facilities. Other engineers in Mr. Volkin’s firm worked on the project under Mr. Volkin’s direct supervision, including John May, who became registered as a professional engineer in Florida in order to sign and seal the engineering drawings for the project, which he initially did around 1994. Mr. May became ill and retired in 1998. Because of the length of time the application process has taken and the fact that Mr. May retired, there was a time while the application was pending, when Hy Power's design team was without a registered Florida engineer. When this was brought to the attention of Hy Power, Hy Power substituted Steven Crockett for Mr. May as the Florida-registered professional engineer of record for the project. DEP routinely accepts an applicant’s changing its engineer of record during the course of permit application or construction. Mr. Crockett is a civil and structural engineer who has considerable experience in preparing dam structural designs. Mr. Crockett independently reviewed and evaluated the engineering drawings for the project. Mr. Crockett resealed the drawings by using his drawn seal and signing the plans because his embossed seal was not readily available and time was of the essence. Mr. Crockett has advised DEP that he is now engineer of record for the project, using the appropriate DEP forms. Mr. Volkin’s firm performed all of the studies required by the various agencies, including a geotechnical study of the area, a 50-year analysis of water flow in and out of the Lake Rousseau regime, and water quality evaluations of water in the By-Pass Channel. The ACOE performed deep hole borings of the soils (approximately 36-40 feet below sea level) in the area of the project site to determine soil stabilization conditions at the site when they were constructing the Inglis Project Works. The soil conditions found can reasonably be expected to be similar today. Mr. Volkin’s company also took its own eight-foot deep surface core samples. The purpose of those samples was to verify the ACOE data. The new core samples verified the original core samples. Mr. Volkin also reviewed the ACOE’s engineering drawings developed from construction of the Spillway Dam. These show that the dam is founded on limestone bedding that has been stabilized with concrete. The hydroelectric facility will be constructed adjacent to and south of the dam structure and adjacent to and north of the barge canal. The same type of limestone bedrock is found in the area of the proposed construction. The facility design includes an intake channel on the upstream channel and a tailrace downstream. Those are the only structures that will be constructed next to the By-Pass Channel. The construction of the facility itself will be "in the dry." Hy Power will use coffer dams to seal off the construction site from the By-Pass Channel, so that there will not be water leakage from the Channel into the construction site. Water from the By-Pass Channel will enter the power plant when the coffer dams are lifted and the water is allowed to flow into the facility. The Petitioners presented the testimony of Bill Edwards, an individual with considerable experience in the construction of bridges, cofferdams, and similar concrete structures in aquatic and semi-aquatic conditions. Mr. Edwards is a former hard-hat diver who worked all over the world and worked in Florida for many years prior to his retirement. Based upon his experience and expertise in construction related to projects of this type, his testimony is credible and worthy of consideration. Mr. Edwards pointed out that if the proposed water retention structure did not touch the wing wall of the existing dam, it could not keep the water out and would not have the strength that it needed to retain the water. Hy Power’s witnesses explained that the retention structure would be set close enough to the existing wing wall that waterproofing materials could be placed between the two structures to keep the water out. Further, that the existing plans did not show interior bracing which would be included for structural strength and integrity. In sum, the retention structure will be in contact with existing dam’s wing wall, but will be free standing and not dependent upon the strength of the wing wall for its strength. Mr. Edwards pointed out that a cofferdam by definition has walls on all sides of the structure. The structure proposed by Hy Power did not have walls all the way around the proposed excavation. In rebuttal, Hy Power presented evidence that its plans were conceptual, design drawing and not construction plans. Hy Power represented that in actuality it would put as many walls as were necessary to keep the water out of the hole it intended to excavate. Trash racks will be constructed at the intake structures to protect aquatic life and make sure that trash and vegetation do not enter the intake structure or go down river. The trash rack bars will be two inches on center, which the U.S. Fish and Wildlife Service has determined as the appropriate size for the protection of fish. The turbine blades are "double regulated," and operate generally between 60 and 90 revolutions per minute. The design enables the turbine to operate at a constant speed to generate a consistent flow of electricity, notwithstanding the fact that the flow of the water may vary. The blade speed is not very fast, and the 2.5-meter blades provide a two to three-foot opening. This design acts to prevent fish mortality. There are four ways to shut off the flow of water through the proposed structure: close the pitch of the blades, close the wicket gates, allow the counter balance to the wicket gates to kick in and automatically close the gates, and close off the main gates. This is a fail safe system ("four level redundancy") designed to work upon any failure. Once water goes through the generator, its velocity is reduced to no greater than its intake rate which is a maximum of three feet per second. This prevents the water being discharged from the tailrace from causing erosion. If the head of water in the dam produces a flow exceeding three feet per second, it can be diverted over the other dams which will be functional. The power plant will be encased in concrete, except for a small access way that enables a person to go down a set of stairs to the plant. It will be a sealed, waterproof structure, as required by FERC and the ACOE. This will prevent penetration of groundwater, or flood waters in the event a massive flood overtops the plant. The only water entering the powerhouse will be through the turbine tunnel for power generation purposes. Mr. Edwards pointed out that the powerhouse was a closed structure and as such would have positive buoyancy, that is, it would float. Mr. Edwards pointed out that the proposed site is between the barge canal and By-Pass spillway and there is a great deal of groundwater and potentiometric pressure in the existing water table. In sum, there is a unlimited supply of groundwater at the site, and powerhouse could float out of the ground just like an empty swimming pool. Hy Power presented rebuttal evidence that the weight of the building, the turbine, and the water flowing through the turbine would be close to negative buoyancy, and they would add additional weight to the structure as necessary to keep it in place. The project is designed to generate three megawatts of electric power which is enough electricity to serve between 300 and 3000 homes, depending on usage. The project is designed to be unmanned. This is common for facilities such as this. The plant can be operated by remote control, unlike the existing controls at the By-Pass Dam, which are operated manually. DEP can access, monitor, and control remotely the generator's operation to include shutting the facility down at any time. There will be remote sensors to monitor water elevations. Flood protection will improve because of the ability of DEP to manage water flow from a remote location. If there is any major disruption, the plant will shut itself down. The project is classified as "green power." In other words, it generates natural energy without any disruption to the environment. The project will have minimal to no impact on the environment. There will be no significant changes in water quality compared to existing conditions as a result of either construction or operation of the facility. WRM Permit Criteria Hy Power has provided reasonable assurances that the proposed project will not cause a violation of state water quality standards of Section 403.918(a), Florida Statutes (1991). The parties stipulated that turbidity and dissolved oxygen were the two surface water quality issues of concern in this proceeding. The receiving water body is the Inglis By-Pass Channel. The Inglis By-Pass Channel is a Class III surface water. The project is not located in a OFW. While the lower Withlacoochee River is an OFW, the OFW designation runs up the natural river itself, and does not include the Spillway Dam, tailrace, or the remainder of the By-Pass Channel. There would be no degradation of water quality at the point of contact with the Withlacoochee River OFW. The DEP and FERC looked specifically at potential for turbidity and dissolved oxygen in determining whether the project would violate state water quality standards. The standards for turbidity and dissolved oxygen will not be violated. Because the By-Pass Dam is an under flow structure, a minimum of oxygenation currently occurs as water flows through the existing dam. The proposed project runs the water underground through the generator; however, Hy Power will measure the dissolved oxygen below the dam in the Lower Withlacoochee River. In the event there is any lowering of dissolved oxygen, Hy Power can install a "sparge ring" to reoxygenate the water going through the turbine so that dissolved oxygen remains at current levels. No turbidity will be added to the receiving water as a result of the project, because water velocity is low and the structure is encased in concrete and rip-rap. The only other potential for turbidity would occur when the coffer dams are removed after construction is complete. The coffer dams can be removed with the generator closed to permit any turbidity to settle. The amount of siltation that might occur when the generator is opened would be insignificant. Where a project is not in a OFW, an applicant must provide reasonable assurance that the project will not be contrary to public interest. See Section 403.918(2), Florida Statutes (1991). Hy Power has provided such assurances. The project will not directly affect public health, safety or welfare, or the property of others. See Section 403.918 (2)(a)1., Florida Statutes. There are concerns relating to the structural integrity of the proposed facility and adjacent structures which are discussed extensively below. The project will have no adverse impact upon the conservation of fish and wildlife, including threatened and endangered species and their habitat. See Section 403.918 (2)(a)2., Florida Statutes. While manatees are not likely to be found at the project site, the installation of the trash racks will eliminate any potential adverse impact on manatees. In fact, the racks will be an improvement over the current unprotected Spillway Dam. DEP procedures require a specific manatee control plan be implemented to deal with site specific concerns. The project will not adversely affect navigation or the flow of the water or cause harmful erosion or shoaling. See Section 403.918(2)(a)3., Florida Statutes. The project will not adversely affect fishing or recreation values or marine productivity in the vicinity of the project. See Section 403.918(2)(a)4., Florida Statutes. The permanent project and its construction will cause no significant environmental impacts. See Section 403.918(2)(a)5., Florida Statutes. There will be no adverse impacts to significant historical and archeological resources. Section 403.918(2)(a)6., Florida Statutes. With regard to the impact on current conditions and relative value of functions being performed by the areas affected by the proposed activity, there will be no negative impacts. See Section 403.918(2)(a)7., Florida Statutes. Improvement will result from better control of water flow at the project site, installation of trash racks and implementation of green power. THE FORESEEABLE ADVERSE SECONDARY OR CUMULATIVE IMPACTS Potential adverse secondary impacts related to power transmission are addressed through the fact that there is an existing power line corridor that can be used to transmit the electricity. Any need to change the corridor could be addressed by subsequent DEP permitting. Cumulative impacts are not at issue. Mr. Gammon, with Florida Power, acknowledged that the current electric company, presumably Florida Power, would be required by FERC to transport the electricity generated by Hy Power over its existing corridor and poles. No final decision has been made regarding how to access the site with equipment during construction. Several feasible construction options exist, and there are several ways of accessing the site with heavy equipment vehicles and without impacting wetlands. Any final decision would be subject to DEP approval. Since the project meets the public interest criteria of Section 403.918(2)(a), Florida Statutes, and wetland impacts are minimal, the project is permittable without the need for mitigation. See Section 403.918(2)(b), Florida Statutes. The ACOE has issued a permit for the facility. The permit varies slightly from the DEP intent to issue in the use of reinforced concrete rather than rip-rap on the bottom half of the intake channel. This is to comply with ACOE preference, but the variation has only an environmental benefit. Counsel for Petitioners sought to elicit testimony from Linda Sloan, Executive Director of the Withlacoochee Regional Planning Council, with regard to compliance of the proposed project with the Town of Inglis Comprehensive Plan and Land Development Code. Such compliance is not relevant to this proceeding. At any rate, Ms. Sloan conceded that any prohibition that might apply in the Land Development Code to construction of the proposed facility could potentially be alleviated by exemption or variance provisions in the Code. MSSW PERMIT CRITERIA The project will provide adequate flood protection and drainage in the conventional sense. See Rule 40D-4.301(1)(a), Florida Administrative Code. Because the amount of impervious area is minimal, runoff from the project will not in any way contribute to increased flooding or adversely impact drainage patterns. The total amount of impervious area of the facility is less than that of a single-family residence. SWFWMD rules do not even require MSSW permits for single-family residences because the impact is not significant. The only purpose for requiring a MSSW permit for the project is to review the project’s potential downstream impacts to the watershed, not stormwater runoff from the facility itself. The project will not cause adverse water quality or water quantity impacts on adjacent lands in violation of Chapter 373, Florida Statutes, or cause a discharge that violates state water quality standards. See Rule 40 D-4.301(1)(b), Florida Administrative Code. As indicated by the WRM water quality findings above, the project will not generally violate state surface water quality standards. See Rule 40 D-4.301(1)( c), Florida Administrative Code. The project will not generally cause adverse impact on surface or groundwater levels or flows. See Rule 40 D- 4.301(1)(d), Florida Administrative Code. Since the project is a run-of-the-river, it will not diminish the capability of a lake or other impoundment to fluctuate through the full range established for it under Chapter 40D-8, Florida Administrative Code. The project will not cause adverse environmental impacts, or adverse impacts to wetlands, fish, and wildlife or other natural resources. The project can be effectively operated and maintained. See Rule 40D-4.301(1)(g), Florida Administrative Code. The project is a slow speed, low maintenance facility. The design concept is well established and has been successfully used for many years. Possible adverse affects to public safety are discussed below. The project is consistent with the requirements of other public agencies. See Rule 40D-4.301(1)(i), Florida Administrative Code. Potential harm to water resources within the SWFWMD are discussed below. See Rule 40D-4.301(1)(j), Florida Administrative Code. The proposed project generally will not interfere with the legal rights of others. See Rule 40D-4.301(1)(k), Florida Administrative Code. The proposed project is not against public policy. See Rule 40D-4.301(1)(l), Florida Administrative Code. The project complies with the requirements contained in the Basis of Review. See Rule 40D-4.301(2), Florida Administrative Code. There is a dispute as to whether the project was within or at the edge of the 100-year flood plain. This dispute is related to how one interprets the rule as it relates to the millrace and the location of the facility which is under ground. In the conventional sense, the project is not in the flood plain. Further, the project is designed in such a way, that it is waterproof if it were topped with water. While in the past SWFWMD may have had concerns that the project might cause downstream flooding, SWFWMD currently has no such concerns, given the run-of-the-river status of the proposed project. The operation of the project will not cause downstream flooding. The DEP included in its intent to issue, conditions contained in the sublease between Hy Power and the DEP in order to ensure that the facility would remain run-of-the-river, would comply with the water control plan, and would otherwise comply with the terms of the sublease. The DEP has final control over water flow and can revoke the permit or otherwise take enforcement action against Hy Power if Hy Power fails to comply with the water control plan. GROUNDWATER IMPACTS Operation of the project will not cause groundwater contamination or otherwise have adverse groundwater impacts. Some concerns about groundwater during excavation of the construction site were raised. The conflicting evidence received regarding them is discussed below. An area of concern was the de-watering plan for the project. Everyone agrees there will be some water seepage into the construction site that will have to be pumped out. The parties disagree regarding the amount of water that will have to be removed. Their estimates of amount of water to be removed vary because their estimates of size and over-all depth of the site vary. Petitioners presented credible evidence that a potential exists for the construction site to have a large quantity of water because of its location between two sources of surface water (the By-Pass Channel and Barge Canal), because of the makeup of the subsurface, and because of the depth of the construction. Hy Power credibly represents that if excessive groundwater is found, it can address the adverse impacts through its de-watering plan that would have to be filed with FERC and DEP. The technology exists to address the de-watering of the project. Such plans are routinely considered by DEP after a construction permit is issued and before de-watering occurs. There is very little evidence of sinkhole activity in the project area, and the construction activities are not expected to cause any sinkhole activity. NOISE POLLUTION Mr. Bitter expressed concerns that FERC would require the facility to install a very loud siren that would result in sudden noise adverse to the well-being of neighbors. Mr. Bitter is unfamiliar with FERC siren requirements at run-of the-river hydroelectric facilities. In contrast, Mr. Volkin, who has substantial experience in this area, testified that the only alarm device that would be required would be for the protection of the workers during construction. The purpose of the alarm is to warn persons below a dam spillway of a change in the volume of water being let out of the impoundment. In the case of a run-of-the-river facility, the volume is near constant, changing only gradually. Therefore, even if a warning siren had to be installed its use would be limited to significant changes in flow or testing. This would not constitute a nuisance. Further, the facility is located in the vicinity of the Crystal River Nuclear Power Plant which has its own warning sirens. It would be prudent to make any warning devices required for this structure significantly different from those at the nuclear plant and to limit their use. DAM SAFETY AND FERC REVIEW In reviewing whether Hy Power’s applications complied with the relevant permitting criteria, the DEP took into consideration the review of the facility already performed by FERC. FERC will also be responsible for reviewing the project as it is being constructed. Mr. Edwards also raised concerns about the structural stability of the By-Pass Dam itself. This has been a subject of concern by those responsible for the dam, and a survey of the structure was conducted in 1993, referred to as the Greiner Report. The Greiner Report identified specific maintenance problems that have been and are being addressed by the DEP. However, DEP’s maintenance plan does not address specifically the possibility that the weight of the dam over time has caused some shifting in the dam. Hy Power has only a few core borings and only one at the location of the generator. Hy Power is using the ACOE’s original borings, as confirmed by several new ones, to develop its preliminary plans. The DEP considered FERC and the ACOE as responsible agencies for determining the structural integrity of the dam. DEP has taken FERC’s review of this facility into consideration as part of DEP’s own permitting review. It is normal for DEP to rely on outside sources and agencies for assistance in determining compliance with DEP permitting criteria such as public health and safety, and it is reasonable for DEP to do so in this instance. Most states do not have the full capability to evaluate dam safety, and so they rely on FERC and ACOE. On April 21, 1997, the project received a conduit exemption from FERC. The application process is illustrated in Hy Power Exhibit 11. Hy Power submitted to DEP detailed information about the dam, the associated structures and the proposed project which had been reviewed by FERC and the ACOE, the two agencies in the United States who are responsible for dam structure design, control, and administration. Included in the package was the Greiner Report and Hy Power’s review of it. FERC evaluated the project, the Inglis By-Pass Dam structure, and the proximity of the project to the Dam in relation to structural impact, upstream and downstream impacts, water quality, and environmental issues. Mr. Edwards raised concerns regarding the ability of the limestone bedrock to sustain additional construction in the area of proposed construction. This is a material issue in the controversy which impacts several aspects of the proposed construction. Mr. Edwards pointed out that the barge canal channel was constructed with the use of explosives that caused a fracturing of limestone bedrock. He pointed out that the steel panels, which Hy Power proposes to drive into the bedrock to construct the water retention structure necessary to excavate the hole into which the turbine and powerhouse would be placed, will further fracture this bedrock. This creates two potential dangers. It could permit water to move under and around the bottoms of the panels, potentially scouring the loosened material from the base of the panels and making them unstable and subject to failure. It could weaken the entire southern wing of the existing spillway dam. Mr. Edwards opined that this could result in catastrophic failure of the dam or the coffer dam. Such a failure would cause major destruction and loss of life to those persons living and working in and along the lower Withlacoochee River. Hy Power presented rebuttal evidence that it could and would, if necessary, inject concrete into the limestone to stabilize it and avoid the concerns raised by Mr. Edwards. FERC specifically evaluated concerns raised by project opponents over the poor physical condition of the By-Pass Channel Spillway structures, relying particularly on the 1993 Greiner Report. FERC noted that the DEP had entered into a contract to correct any deficiencies listed in the Greiner Report, which "did not conclude that the deficiencies at the By-Pass Spillway threaten downstream life and property." The FERC review concluded that the dam was safe. To ensure safety, FERC is requiring that Hy Power do a complete stability analysis of the dam prior to any construction. Articles 301 and 302 of the FERC exemption ensure that all final drawings and specifications be submitted to FERC prior to construction, along with a supporting design report consistent with FERC’s Engineering Guidelines; that FERC can require changes to assure a safe and adequate project; and that Hy Power must also submit approved coffer dam construction drawings and specifications at least 30 days prior to starting construction. FERC has its own engineering staff who will go to the site and do their own analysis, along with the ACOE, of the dam and structures, prior to any construction commencing. This is a detailed design review evaluation so that the latest information on the dam will be made known immediately prior to construction, and will prevent any catastrophic event from happening. Under FERC procedures, FERC requires the applicant to obtain the DEP permits prior to requiring applicant to submit more detailed construction designs for FERC's consideration. These more detailed designs in turn will be subject to further review by DEP and FERC. It is assumed that Hy Power will comply with the post- permitting procedures and requirements, and will present complete, detailed construction drawings for FREC and DEP approval. Hy Power’s failure to complete the process would result in denial of a construction permit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the DEP enter a Final Order that issues the two permits challenged in this proceedings, WRM Permit No. 38-237096-3.001 and MSSW Permit No. 38-0129249-002, subject to the conditions contained in the Intents to Issue in the respective WRM and MSSW Permits and as described in the Recommended Order. DONE AND ENTERED this 2nd day of March, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 2nd day of March, 2000. COPIES FURNISHED: Daniel H. Thompson, Esquire Berger Davis & Singerman 215 South Monroe Street, Suite 705 Tallahassee, Florida 32301 Andrew Zodrow, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 John S. Clardy, III, Esquire Crider Law Firm Plantation Point 521 West Fort Island Trail, Suite A Crystal River, Florida 34429 Teri Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Bernard M. Campbell Bessie H. Campbell 245 Palm Street Post Office Box 159 Inglis, Florida 34449 Sarah E. Berger Post Office Box 83 Inglis, Florida 34449
Findings Of Fact On September 13, 1977, SFWMD advised Coquina by letter that "[a]t its September 8, 1977 meeting the Governing Board of this District gave Conceptual Approval of [Coquina's] surface water management plan . . . subject to the four special conditions found on page 15 of the District's staff report. . . [and an] additional special condition Joint exhibit No. 5. The first special condition found on page 15 of the District's staff report requires that complete construction plans be submitted, including "supporting calculations for all design elements not already submitted and any other plans necessary to assure adherence to the concept plan." Joint exhibit No. 2, page 15. The plan approved by SFWMD is designed to lower the water table in a 22 square mile area northwest of Lake Okeechobee in Okeechobee County. In its natural state, the land lies under water for part of the year. The corporate owner of the land has plans to subdivide it and sell residential lots, beginning with the four contiguous sections as to which the present application for a construction permit has been made. These four sections (phase I) lie north and south of each other in the western portion of the larger tract. The proposed construction would consist of digging ditches or swales paralleling existing and planned roads; building intersecting collector swales running north and south; installing ditch checks where swales intersect; dredging a retention pond into which the collector swales could empty at the south end of the phase I tract; digging an outfill ditch to channel water leaving the retention area for Ash Slough; and erecting a weir, between the retention area and the slough. Culverts through the weir would be equipped "with standard flash board risers in which the water level is regulated by stop logs which can be added or removed," Coquina's exhibit No. 1, p. 10, and the culverts would ordinarily serve as the route by which water from the retention area would reach Ash Slough. Under extremely wet conditions, however, water from the retention area could overflow the weir. The intervening petitioners own land on Ash Slough downstream from the retention area and adjacent to the southern boundary of the phase I tract. No formal studies of the likely effects of the proposed construction downstream were undertaken by Coquina or by SFWMD in evaluating Coquina's application. The surface water management plan given conceptual approval by SFWMD provides: The quantity of runoff flowing to the south through existing sloughs will be controlled to protect the downstream areas against flooding whereas at the present there is no control. The amount flowing to the existing sloughs to the south during the 25 yr. design storm will be limited to the amount flowing to those sloughs before any development takes place. Lesser storms will be more completely retained on the property. Controlled discharge will be provided from retention areas to the existing sloughs for the purpose of nourishing these streams. Coquina's exhibit No. 1, p. 1. (Emphasis supplied) Since no records of the amount of discharge to Ash Slough "before any development" are in existence, certain assumptions and estimates were made. One such assumption on which the application for construction permit proceeds is that the phase I tract all drains to the south, in its present state. In fact, some of the water now leaving the phase I tract travels in a westerly direction and never enters Ash Slough, at least under some weather conditions. If the proposed construction is accomplished, the phase I tract would all drain to the south through Ash Slough. As things now stand, a significant amount of water leaves the phase I tract by evapotranspiration. If the water table were lowered two and a half feet, which is what Coquina proposes, less water would leave the phase I tract by evapotranspiration, leaving more water to flow over the ground. In estimating the quantity of the anticipated discharge to Ash Slough, if the proposed construction takes place, it is necessary to take into account drainage onto the phase I tract from adjoining lands. Coquina has failed to furnish plans and supporting calculations sufficient to insure that the proposed construction will not increase the amount of flow to Ash Slough during the 25 year design storm. Increased flow to Ash Slough would aggravate downstream landowners' drainage problems, unless the slough could handle the additional flow, a question which the application does not address. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 34O So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That SFWMD deny Coquina's application for construction permit. DONE and ENTERED this 14th day of November, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 APPENDIX Paragraph one of intervening Bass petitioners' proposed findings of fact has been adopted, in substance, insofar as relevant, except that the evidence did not demonstrate that downstream landowners would in fact be harmed. Paragraphs two, three, four, five, six and seven of intervening Bass petitioners' proposed findings of fact have been adopted, in substance, insofar as relevant. Paragraph one of respondent Coquina's proposed findings of fact has been adopted, in substance, insofar as relevant, except for the date of the application. Paragraphs two, three, four, five, six, seven, eight, nine and thirteen of respondent Coquina's proposed findings of fact have been adopted in substance, insofar as relevant. Paragraph ten of respondent Coquina's proposed findings of fact stated a conclusion of law, in part. While "testimony was presented that the construction of Phase I would have no substantial adverse affect [sic] on surrounding properties," the evidence as a whole did not establish this fact. Paragraphs eleven and twelve of respondent Coquina's proposed findings of fact have not been adopted because they were not established by the evidence, except for subparagraph eleven (f), which was proven. COPIES FURNISHED: John Henry Wheeler, Esquire South Florida Water Management District Post Office Box V West Palm Beach, Florida 33402 Robert Birenbaum, President Viking Communities Corporation (Coquina Water Management District) 123 Northeast 70 Street Miami, Florida 33138 Kyle S. Van Landingham, Esquire County Attorney Okeechobee County Courthouse Okeechobee, Florida 33472 Andrew B. Jackson, Esquire J.C. Bass & Bass Ranch, Inc. Post Office Box 488 Lake Placid, Florida 33852 Emerson Allsworth, Esquire 1177 Southeast Third Avenue Ft. Lauderdale, Florida 33316 Mr. Bob Wittenberg Division of Florida Land Sales and Condominiums The Johns Building 725 South Bronough Street Tallahassee, Florida 32304 Dr. Patrick M. McCaffrey Kissimmee Coordinating Council 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. George Stansbury Central Florida Regional Planning Council Post Office Box 2089 Bartow, Florida 33830
The Issue The issue in this case is whether the Department of Environmental Protection (DEP or Department) should exempt Petitioner's alleged maintenance-dredging from wetland resource permitting under Florida Administrative Code Rule 62- 312.050(1)(e).1
Findings Of Fact Petitioner has applied for a maintenance-dredging exemption from wetland resource permitting for two channels in Goose Bayou on the two ends of a U-shaped upland cut canal adjacent to Goose Bayou. Rule 62-312 provides in pertinent part: No permit shall be required under this chapter for dredging or filling . . . for the projects listed below. * * * (e) The performance of maintenance dredging of existing manmade canals, channels, and intake and discharge structures, where the spoil material is to be removed and deposited on a self-contained, upland spoil site which will prevent the escape of the spoil material and return water from the spoil site into surface waters of the state, provided no more dredging is performed than is necessary to restore the canal, channels, and intake and discharge structures to original design specifications, and provided that control devices are used at the dredge site to prevent turbidity and toxic or deleterious substances from discharging into adjacent waters during maintenance dredging. This exemption shall apply to all canals constructed before April 3, 1970, and to those canals constructed on or after April 3, 1970, pursuant to all necessary state permits. This exemption shall not apply to the removal of a natural or manmade barrier separating a canal or canal system from adjacent waters of the state. Where no previous permit has been issued by the Board of Trustees of the Internal Improvement Trust Fund or the United States Army Corps of Engineers for construction or maintenance dredging of the existing manmade canal or intake or discharge structure, such maintenance dredging shall be limited to a depth of no more than 5 feet below mean low water. There was no evidence of any dredging or application for dredging in the vicinity of the proposed alleged "maintenance- dredging" prior to 1971. There was evidence and a stipulation that Heritage Homes of Fort Walton, Inc. (Heritage Homes), applied to the State of Florida in or around 1971 to dredge two navigation channels in Goose Bayou for a project known as Venetian Villas and to remove two plugs separating a land-locked U-shaped canal from Goose Bayou. The navigation channels were to be 50 feet wide by five feet deep. The southern channel was to be 640 feet long, while the northern channel was to be 450 feet long. This proposal did not receive any governmental authorization. There was evidence and the parties stipulated that in 1973, based on the proposed project modifications, the State of Florida Department of Pollution Control (DPC), a predecessor of DEP, issued water quality certification, and the State of Florida Board of Trustees of the Internal Improvement Trust Fund (BOT) issued a permit for the project, as modified. It appears that the issuance of the water qualify certification and BOT permit was part of some kind of settlement reached between Heritage Homes and the State of Florida for dredge-and-fill violations. It appears that the settlement also involved the conveyance of ten acres of land to the State of Florida in lieu of payment for the spoil used in filling the marsh lands between Goose Bayou and the U-shaped canal. There was evidence and the parties stipulated that, at some point in time, the DPC certification and a BOT permit were transferred from Heritage Homes to West Florida Construction Company (West Florida). There was evidence and the parties stipulated that, as of July 13, 1973, neither Heritage Homes nor West Florida had applied to the United States Army Corps of Engineers (Corps) for a permit. There was evidence and the parties stipulated that, over time and after receiving comments from various governmental agencies, West Florida's proposed project changed to involve a yacht basin/marina, a proposed southern channel, elimination of the proposal for a northern channel, and plugging the U-shaped canal to keep it separate from Goose Bayou. The location of the single, southern channel under this proposal was different from the proposed location of the southern channel under the Heritage Homes proposal, which was to start at the southernmost arm of the U-shaped canal. Instead, under West Florida's proposal, the single, southern channel was to be located directly north of the southernmost arm of the U-shaped canal. There was evidence and the parties stipulated that, by August 21, 1974, West Florida applied to the Corps for a permit to dredge the single, southern channel (50 feet wide, 565 feet long, and four feet deep), to keep the northern canal plugged, and to construct a yacht basin/marina. There was evidence and the parties stipulated that, the United States Department of the Interior Fish and Wildlife Service (FWS) and the United States Environmental Protection Agency (EPA) recommended several changes to the project before they could recommend that the Corps issue a permit for the 1974 application; however, it does not appear that the recommended changes were ever made or that the Corps ever took any action on the 1974 application or issued any permit for the proposed project. At some point in time after 1974, the two plugs were removed, which connected the U-shaped canal to Goose Bayou. There is now a wide, shallow channel from the waterward ends of the U-shaped canal into Goose Bayou. The evidence did not prove that these channels, which Petitioner now seeks to maintenance- dredge, were ever dredged by man. Their width and shallow depth are more consistent with natural scouring from surface water runoff leaving the canal system at low and extreme low tides than with dredging. There was no evidence of soil borings, which could have verified whether the channels had been dredged by man. Even if originally dredged, there was no evidence that a dredged channel had been maintained over the years. Mr. Stoutamire testified that DEP does not consider maintenance- dredging to include the restoration or rebuilding of a channel that has not been maintained and no longer exists. This interpretation of the maintenance-dredging exemption is reasonable. Mr. Stoutamire also testified that DEP interprets the last sentence of Rule 62-312.050(1)(e), limiting maintenance- dredging to no more than five feet below mean low water where no previous permit has been issued, to refer to canals constructed before April 3, 1970, since maintenance-dredging of canals constructed after that date would not be exempt if not previously permitted. This interpretation is reasonable.2 Petitioner's application did not state that control devices would be used to prevent turbidity and toxic or deleterious substances from discharging into adjacent waters during dredging.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order denying Petitioner a maintenance-dredging exemption under Rule 62- 312.050(1)(e). DONE AND ENTERED this 16th day of September, 2009, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 2009.
Findings Of Fact Petitioners own property located in Section 6, Township 9, Range 16 East, Gilchrist County, Florida (the "Moore property"). Mrs. Linda Bridges owns property adjacent to and south of the Moore property (the "Bridges property"). Respondent, Bridges ("Bridges"), is in possession and control of the Bridges property. Mr. Glenn Miller owns property adjacent to and south of the Bridges property (the "Miller property"). ITT-Rayonier owns property west of the Moore, Bridges, and Miller properties (the "ITT property"). A dirt road runs north and south in front of and along the western border of the Moore, Bridges, and Miller properties (the "road"). The road separates the ITT property, to the west, from the Moore, Bridges, and Miller properties, to the east. Prior to 1989, surfacewater historically flowed in a northeasterly direction. It flowed northeasterly from the ITT property through a 24 inch road culvert onto the Bridges property. It then flowed north through a 36 inch culvert on the southerly portion of the Moore property, across the Moore property, and into Weeks Lake to the north of the Moore property. In 1989, with the consent of Bridges but without a permit from the District, Petitioners began a construction plan that included the installation of two 62 inch culverts to enhance the northeasterly flow of surfacewater from the ITT property to Weeks Lake. One 62 inch culvert was intended to replace the 24 inch culvert under the road forming the westerly boundary between the ITT property and the Moore and Bridges properties. The second 62 inch culvert was intended to replace the 36 inch culvert on the southerly boundary of the Moore property. The second 62 inch culvert was needed so the same volume of surfacewater flowing from the ITT property through the 62 inch road culvert could continue its northerly flow from the Bridges property to the Moore property and on to Weeks Lake. Petitioners replaced the 24 inch road culvert with a 62 inch culvert but left intact the 36 inch culvert on the southerly portion of their property. Thus, a greater volume of surfacewater can flow from the ITT property through the 62 inch culvert onto the Bridges property but a lesser volume of surfacewater can flow from the Bridges property through the 36 inch culvert onto the Moore property. Petitioners removed fill material from the ITT property to widen and increase the height of the road bed on the westerly boundary between the ITT and Moore properties. The heightened road bed impounds a greater volume of surfacewater on the ITT property before it flows over the road onto the Moore property. This can increase the rate of flow of surfacewater through the 62 inch road culvert onto the Bridges property under certain circumstances. Petitioners increased the depth and width of existing ditches, and added new ditches along a portion of the road bed onto the Bridges property. The increased ditch capacity further increases the volume of surfacewater that can flow onto the Bridges property. Petitioners constructed a berm running east and west on the southerly boundary of the Moore property. This increases the volume of surfacewater that can be impounded on the Bridges property without flowing onto the Moore property through areas other than the 36 inch culvert that Petitioners left intact on the southerly portion of their property. The 62 inch road culvert, increased ditch capacity, heightened road bed between the ITT and Moore properties, the berm on the southerly portion of the Moore property, and the 36 inch culvert increase the volume of surfacewater that is impounded on the Bridges property before continuing its historic northeasterly flow. Surfacewater impounded on the Bridges property floods the Bridges property and properties to the south of the Bridges property. Although flooding occurred on the Bridges property prior to the 1989 construction, flooding on the Bridges property and properties south of the Bridges property is greater since Petitioners completed construction. In addition, the ITT property drains more readily. On or about October 13, 1993, Bridges applied to the District for a General Surfacewater Management Permit to replace the 62 inch road culvert with a 24 inch culvert pursuant to Florida Administrative Code Rule 40B-4.2010(1)(a). A General Surfacewater Management Permit is issued for activities that have little or no potential adverse impact to surfacewater resources for the District. The application satisfied all of the criteria for the permit at issue. ITT does not object to the proposed permit even though more surfacewater will be impounded on the ITT property. Issuance of the proposed permit will approximate the flow of surfacewater that existed prior to Petitioners' installation of a 62 inch road culvert without a permit in 1989.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Suwannee River Water Management District, enter a Final Order and therein GRANT Respondent, Paul Bridges', Application For Agriculture Or Forestry General Surfacewater Management Permit. DONE and ENTERED this 2nd day of March 1994, in Tallahassee, Florida. DANIEL S. MANRY 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 2nd day of March 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6656 Petitioners' Proposed Findings Of Fact. 1.-4. Rejected as immaterial 5. Rejected as recited testimony 6.-7. Rejected as not supported by credible and persuasive evidence 8. Rejected as irrelevant and immaterial 9.-13. Rejected as not supported by credible and persuasive evidence 14.-15. Rejected as irrelevant and immaterial 16.-19. Rejected as not supported by credible and persuasive evidence Rejected as irrelevant and immaterial Rejected as not supported by credible and persuasive evidence Rejected as recited testimony 23.-24. Rejected as not supported by credible and persuasive evidence Respondent, Paul Bridges, Proposed Findings Of Fact. Respondent, Bridges, did not submit proposed findings of fact. Respondent, Suwannee River Water Management District, Proposed Findings Of Fact. All of the District's proposed findings of fact are accepted in substance. COPIES FURNISHED: James H. and Jerrilyn Moore, pro se Route 2, Box 120-E Trenton, FL 32693 Paul Bridges, pro se Route 2, Box 120K-1 Trenton, FL 32693 Janice F. Bessinger, Esquire Brannon, Brown, Haley, Robinson & Cole Post Office Box 1029 Lake City, FL 32056-1029 Jerry Scarborough, Executive Director Suwannee River Water Management District Route 3, Box 64 Live Oak, FL 32060
Findings Of Fact The Petitioners, Alexander Brest Trust and Commodores Point Terminal Corporation, have respectively filed applications with The Department of Natural Resources, pursuant to Section 253.129, Florida Statutes, and the "Butler Act," Chapter 8537, Laws of Florida, 1921, for issuance of "disclaimers" to certain lands situate in Duval County, Florida and the City of Jacksonville, consisting of water bottoms of the St. Johns River lying adjacent and contiguous to the Petitioner's upland, bulk-headed property. The Respondent, DNR, is an agency of the State of Florida charged with implementation of Chapter 253, Florida Statutes relating to sovereign submerged lands. It serves as the staff to the Board of Trustees of the Internal Improvement Trust Fund, pursuant to Section 253.002, Florida Statutes. The department has the authority to process applications for disclaimers to state lands under the provisions of Section 253.129, Florida Statutes and Section 18- 21.014, Florida Administrative Code. The Alexander Brest Trust is the owner of a parcel of property adjacent to the St. Johns River, located in Jacksonville, Duval County, Florida. That parcel was bulkheaded and backfilled during the period from 1915 to 1917. Commodores Point Terminal Corporation is the owner of a parcel of land adjacent to the St. Johns River located in Jacksonville, Duval County, Florida, which parcel was also bulkheaded and backfilled during the period from 1915 to 1917. The two parcels are contiguous and adjacent. Prior to the bulkheading and backfiling by Brest and CPTC's predecessors in title, the area landward of the bulkhead included submerged lands with water depths of up to eighteen feet below mean high water. The material used by the predecessors-in-title to backfill behind the bulkhead was obtained by dredging an area waterward of that bulkhead. The Respondent has already issued disclaimers of title for the area of land enclosed by and landward of the bulkhead. The Petitioners are the current owners of the upland properties which are contiguous to the subject submerged property and their predecessors in title owned the property prior to 1915. The Respondent has initially elected to deny the applications as to the subject property, on the basis that the dredging activity took place on numerous occasions which demonstrated that the dredging was not a "permanent improvement" within the meaning of the above-cited provisions of law. Moreover, the department maintains that there is no legal requirement that disclaimers be given for "maintenance dredging" of submerged lands, on the theory that such maintenance dredging might constitute a permanent improvement for purposes of the "Butler Act." The department states that this is particularly true when the submerged lands in question are seaward of an existing "bulkhead line." The subject property, including the uplands, were undeveloped as of 1856, the date of the passage of the Riparian Act of 1856," Chapter 791, Laws of Florida (1856). During the year 1910, the Secretary of War, (predecessor to the United States Army Corps of Engineers (Corps), recommended to Congress additional improvements to the Jacksonville Harbor based upon a finding that "the terminal facilities in Jacksonville are rapidly being developed to keep pace with the increased facilities afforded navigation by the deepened channel and the rapidly increasing business of the city." The Secretary of War stated that "sufficient undeveloped waterfront still remains for the establishment or betterment of terminal facilities for some time to come." The Secretary of War opined that the present and prospective commerce of that port demanded an improved channel and that the benefits to be derived would justify the cost of the thirty foot channel to be dredged. In due course, the Corps dredged the so called "Arlington Cut" channel in 1910 or thereabouts. It was located approximately 2,000 feet off-shore from the CPTC parcel and did not continue around Commodores Point and the bend in the river, so that it did not lie in a south or southwesterly direction off the Brest property at that time. Thereafter, and sometime in the mid-1930's, another channel was excavated by the Corps, the so called "terminal channel," which is west of the Arlington Cut and does lie off shore of the Brest property. Some sort of channel existed in the river prior to 1910, however, as the Secretary of War's statement contemplated an "improved channel" or a "deepened channel" and also referenced that terminal facilities in Jacksonville were being developed, and referred to the rapidly increasing business of the city and generally to the already ongoing commerce of that port. The St. Johns River would of course have its own natural channel consisting in essence of a continuous line parallel with the natural course of the river, and in the river, characterized by its greatest depths. The United States Army Corps of Engineers, as a matter of policy, requires local port operators to provide and maintain adequate terminal facilities for commerce before the Corps will recommend deepening of federally maintained channels. This would include a requirement that the local port operators deepen their own berthing channels where necessary to receive the benefit of the federal channel improvements. In 1914, three Jacksonville families, the Cummers, Coachmans and Taliaferros owned the undeveloped lands in question, which later became known as the Commodores Point Terminal. On April 9, 1915, these three families together organized and chartered a corporation named as "Commodores Point Terminal Company." The corporation was organized in order to maintain, own and operate "warehouses, storage yards, terminals, elevators, presses, tanks, scales and other devices for loading and unloading merchandise; wharves, docks, vessels, boats and water craft of all kind for the purpose of furnishing terminal storage and forwarding facilities and for receiving, retaining, caring for and delivering every class of movable property." The Articles of Incorporation also announce the purpose of carrying on the business of ship owners and agents for lines of ships and other water craft, performing towing and lighterage, to, and generally dealing in, all articles suitable for the construction, equipment and operation of marine craft of every kind and the loading, unloading and discharging of such water craft; the design, construction and repair of vessels, ships, boats and water craft and the maintenance of drydocks, wharves, piers and all structures in connection with the warehousing, forwarding and shipping business. The respective lands of these families, depicted in Petitioner's exhibit 4, were then conveyed to the new corporation. During 1914 and 1915, the corporation retained engineers who prepared detailed plans and specifications for development of the lands in question into modern port facilities. The construction plans, dated 1914, called for the construction of a concrete and steel bulkhead system along the line depicted on the plans in Petitioner's exhibit 3. Those plans identified the pre-development shoreline and prevailing water depths prior to the bulkheading and backfilling of the uplands. The 1914 plans also identified the location of certain rock strata located in the submerged lands beneath the bulkhead line. See Petitioner's exhibit 3. The original contour of the river bottom prior to construction of the steel bulkhead is shown by Petitioner's exhibit 4 consisting of the original 1915 construction drawings showing the "strata on line of bulkhead." The 1915 plans then clearly show that the berthing channels were excavated to a depth of thirty feet along side of the bulkhead. Those plans also clearly identify the length of the new bulkhead and the corresponding length of the berthing channels. The various sections of bulkhead exceed 5,000 feet in length. In excess of 4,200 feet of that bulkhead length is embedded in the underlying rock strata indicated on the plans. Construction of the bulkhead and the corresponding berthing channels parallel to it, required excavation of considerable amounts of rock, in addition to softer materials such as sand, clay and silt. Silt actually constituted a very small proportion of the material originally excavated from the berthing channels in front of the bulkhead. By April 11, 1916, as shown by the corporate minutes for that date, construction for the terminal facility was well underway. The corporation by that date had already invested approximately $127,000.00 in bulkheading for the property. The filling of the upland portion behind the bulkhead area was getting underway, but rock removal had become a problem. Those minutes contain an estimate of costs of $35,000.00 for six months effort at removing rock and noted difficulty in placing support beams for the bulkhead because of a second strata of hard rock that was encountered which would require blasting. These same corporate minutes authorized a contract for removing the rock at a cost of 88 cents per cubic yard, compared with 8 cents per cubic yard being paid for dredging of softer material. Thus it can be seen that removing rock during that time cost approximately eleven times the cost of removing the same quantity of softer fill material. Corporate minutes of a board meeting during 1916 show that, as of October 1916, a fifteen hundred and ninety foot section of bulkhead had required the excavation of eighty-three thousand six hundred and ninety four cubic yards of sand compared to twenty eight thousand nine hundred eighteen cubic yards of rock. The rock therefore constituted in excess of twenty-five percent of the materials excavated out of that major section of the berthing channels. From November 10, 1915, through March 2, 1917, approximately 1,278,539 cubic yards of fill material had been excavated at a total cost of $91,465.63. The terminal facility was thus nearing its completed stage at this time with completion of extensive upland development, in terms of wharves and other terminal facilities, in addition to the bulkhead and berthing channels. The terminal facility was thus substantially completed by 1920 and in operation. Improvements to the berthing channels continued throughout the 1920's and wharf houses were constructed to house and store ship cargos. During the 1920's and 1930's, the terminal facility was engaged in a thriving shipping business for incoming and outgoing cargos. This fact is illustrated by photographs taken during 1932 of the terminal facility, admitted into evidence as Petitioner's exhibit 20, which demonstrate the channels, bulkheads, platforms, wharf houses, railroad tracks and vessels forming a part of the facility and its active commercial business at this time. These photographs depict deep draft ships drawing between 20 and 30 feet of water moored in the berthing channels along side the bulkhead and wharves. The photographs also depict certain large boulders which had been removed from the berthing channels and are representative of the rock required to be excavated to install the channels. Additionally, photographs, dated 1921, admitted into evidence show extensive commercial activity by deep draft ocean-going vessels using the berthing channels shortly after the terminal facility was completed and therefore shortly after the initial dredging of the berthing channels. Mr. Alexander Brest testified that, beginning in 1926, he maintained an office approximately 150 feet from the Commodores Point bulkhead. He established that the vessels depicted in the photographs, in evidence in Petitioner's exhibit 20, are representative of the types of ships that utilized the terminal facilities and the berthing channels during the years involved. Sometime around 1935 or possibly shortly prior thereto, the Corps of Engineers relocated the "federal channel" away from the Arlington Cut and routed it to run directly along the north side of the Commodores Point Terminal facility, the so called "terminal channel." Based upon the policy described by Mr. Sam Isenberg, a longtime employee of the Corps, to the effect that adequate terminal facilities must exist before federal channel improvements will be authorized, a reasonable inference is drawn from these facts that the Commodores Point Terminal facility constituted a major port terminal facility by 1935 for ocean-going traffic, sufficient for the government to justify re-location and improvement of its channel. In 1938 the corporation was maintaining a depth of 30 feet of water in front of its bulkhead and in the berthing channels in order to continue to accommodate ocean-going commerce. By that date, the terminal facility had been expanded to also include four wharf houses beside the railroad tracks and related platforms. The significance of the Commodores Point Terminal facility to commerce continued into the 1940's and further federal improvements were made to the terminal channel excavating it to a depth of 34 feet. The federal improvements would not have been authorized in the absence of adequate terminal facilities such as those at Commodores Point, including the fact that during the 1940's a portion of the Commodores Point property was being used for government operated shipyard building "liberty ships." It Is also established that by the early 1940's, the federal channel in question followed the entire bulkhead line from the north end of Commodores Point Terminal all the way around the point to the portion of river front now owned by the Alexander Brest Trust. All the improvements regarding the channels and their access to the federal channel were constructed to serve the upland terminal facility improvements as, essentially, a unified commercial port facility. See Petitioner's exhibit 14C-1 and 2 in evidence. The uplands presently owned by Commodores Point Terminal Corporation and the Alexander Brest Trust continue to be utilized for the berthing of commercial vessels and attendant commerce to this day, although their business has declined somewhat since the 1950's, due to increased competition from the Jacksonville Port Authority commercial facilities for ocean-going ships. Nevertheless, ocean-going vessels drawing in excess of thirty feet of water continue to use the facility. The terminal facility would be unable to function without the berthing channels as originally dredged and as presently configured. Those channels have permitted the facility to be used to load and unload and otherwise accommodate large ships and tankers for over fifty years on a continuous basis. As shown by the testimony of Mr. Isenberg and the survey dated January 1987, in evidence, the lands for which Petitioners seek the disclaimer are not so wide and extensive as to result, by the disclaimer, if granted, in an interference with navigation and commerce on the St. Johns River. Considerable evidence was introduced as to the distinction in quantity, character and cost between the original excavation dredging of the berthing channels and subsequent maintenance dredging, as that relates to the question of whether the dredging of the channels constituted a permanent improvement to the realty involved. In this connection, Mr. Kreis testified that the most recent maintenance dredging took place in 1986. That involved removal of eighty-five hundred and eighty-seven cubic yards of material. The testimony of Mr. Ray established that maintenance dredging for the Commodores Point berthing channels has averaged approximately 4,000 cubic yards of material per year if it were averaged out over the period of time dating back to 1961. The original dredging for construction of the berthing channels from 1915 to 1917 involved the removal of 1,278,539 cubic yards of material, approximately twenty-five percent of which was solid rock. Thus, the quantity of silt and other soft materials dredged on an annual basis represents only about .3 percent of the original quantity of materials excavated from the channels. Mr. Isenberg and Mr. Ray have considerable experience in the dredging business and explained the significant difference in character, difficulty and costs between the original excavation dredging of the channels, as opposed to mere maintenance dredging. Mr. Isenberg explained that the original dredging of the river channel or the deepening of a the river channel below the previous depth involved removal of rock. This has to be done with a large cutter dredge, which is operated by a large diesel engine. If the rock is very hard, it must be drilled and blasted before the dredge can pick it up. Commonly accepted engineering practice requires removal of rock to slightly over specified depth so that subsequent maintenance dredging operations will not require the use of a rock cutter head and will allow removal of any accumulated silt at a small fraction of the cost of having to use rock cutting equipment. Maintenance dredging thus basically involves only removal of silt and light sands. As established by Mr. Ray, dredging of silt or sand requires only light weight, "standard" type of dredging equipment, however, a special dredge would have to be obtained in order to dredge rock. Samples of rock removed from the berthing channels at Commodores Point, displayed at hearing, revealed that it is a very hard type of "chert." Once such rock is removed from a channel, of course, it does not return and subsequent channel dredging is basically a sweeping operation. It is done as periodic maintenance of the original and already- constructed channel, unless that channel is later required to be deepened. Mr. Lake Ray is a Registered Professional Engineer in the State of Florida, as well as a licensed land surveyor. He has extensive background and training in the field of civil engineering and particularly with respect to the design of port facilities. He has extensive familiarity with the specific property in question. He opined that, based upon his knowledge of dredging and his specific knowledge of the property involved, that the original excavation dredging constituted a permanent improvement to the submerged lands in question. Mr. Alexander Brest is a graduate of M.I.T., with a degree in civil engineering. He has taught as a professor of civil engineering at the University of Florida. He also expressed the opinion that, as of 1947 when he acquired his portion of the property in question, that it had been permanently improved by the prior original dredging or excavation of the berthing channels, as well as the maintenance dredging. The current commercial uses of the Brest property have not required any maintenance dredging since Mr. Brest acquired the property In 1947. This testimony coupled with the "corroborative hearsay" affidavits of Paul Kirkland of Wood Hopkins Contracting Company, Noel Pepper of Pepper's Towing Company and Eugene Hagan, a Florida Registered Professional Engineer, established that the sand, clay and rock removed from the dredged berthing channels resulted in a permanent change in the river bottom. The indentation created by the dredging may fill up with silt, but the silt is easily removed compared to the original dredging process involving sand, clay and rock removal. The initial cut in the river bottom should be considered a permanent improvement to the adjacent marine facility. Once the rock, clay and sand materials are removed the channels are considered cut into the river bottom permanently. Thereafter, one would only expect to do maintenance dredging of easily removed silt and minor traces of sand on a periodic basis, which is what the history of the maintenance of the channels, as indicated in this record, reflects. The opinions of the above-named experts are accepted, based upon the above findings concerning their training, experience and familiarity with the physical characteristics of the lands and waters in question.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, as well as the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a Final Order be entered by the Board of Trustees of the Internal Improvement Trust Fund granting the disclaimer sought by the Petitioners, in the manner and for the reasons found and concluded above. DONE AND ENTERED this 9th of January, 1989, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1989. APPENDIX TO RECOMMENDED ORDER CASE NOS. 88-0378 & 88-0522 Petitioner's Proposed Finding of Fact: 1-24. Accepted. 25-31. Rejected as subordinate to the Hearing Officer's Findings of Fact on the subject matter. 32-39. Accepted. Rejected as subordinate to the Hearing Officer's Findings of Fact on the subject matter. Rejected as constituting discussion of evidence presented and not a finding of fact. 42-48. Accepted. 49. Rejected as subordinate to the Hearing Officer's Findings of Fact on the subject matter, which are predicated on direct evidence and not on the hearsay affidavit referenced in this proposed finding of fact. 53-54. Rejected as consisting of a discussion of testimony rather than a proposed finding of fact, and as being immaterial. Respondent's Proposed Findings of Fact: 1-5. Accepted. 6. Rejected as contrary to and subordinate to the Hearing Officer's Findings of Fact on the subject matter, and as being immaterial. 7-8. Accepted. 9-10. Rejected as subordinate to the Hearing Officer's Findings of Fact on the subject matter. Accepted. 12-13. Accepted, but not for its material import nor as dispositive of pertinent issues in this proceeding. 14-16. Accepted. Accepted, but not in itself dispositive of any material issue presented. Rejected as subordinate to the Hearing Officer's Findings of Fact on the subject matter and as not In accordance with the preponderant weight of the evidence, and, to some extent, as immaterial. Rejected as being contrary to the preponderant weight of the evidence. Accepted, but not in itself dispositive of any material issues presented. 21-23. Rejected as subordinate to the Hearing Officer's Findings of Fact on the subject matter. 24-30. Rejected as immaterial. 31. Rejected as not in accordance with the preponderant weight of the evidence. COPIES FURNISHED: J. Michael Lindell, Esquire Suite 620, Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Ross S. Burnaman, Esquire Assistant General Counsel Florida Department of Natural Resources 3900 Commonwealth Boulevard Douglas Building, Suite 1003 Tallahassee, Florida 32399 Tom Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399
The Issue The issue here presented concerns the entitlement of the Applicant/Respondent, Raymond B. Spangler, to construct a boat dock of approximately 800 square feet, included in that dimension is a boat house. The Respondent, State of Florida, Department of Environmental Regulation, has indicated its intention to grant the permit application request and the Petitioner, Louise C. Stone, has opposed the Department's intention to grant the permit.
Findings Of Fact THIS CAUSE comes on for consideration based upon the Petitioner, Louise E. Stone's petition and request for formal proceedings to consider the propriety of the State of Florida, Department of Environmental Regulation's granting of an environmental permit to Raymond B. Spangler. This petition was filed after the Petitioner had received the Department of Environmental Regulation's Notice of Intent to Grant the permit. That notice was dated July 10, 1979, and a copy of that notice has been received into evidence as Department of Environmental Regulation's Exhibit No. 5. The Secretary of the Department of Environmental Regulation opted to have the Division of Administrative Hearings consider this case and on November 5, 1979, a formal hearing was held before a Hearing Officer with the Division of Administrative Hearings. The Petitioner is an adjacent landowner to the Respondent, Raymond B. Spangler, with property located on Lake Minneola. The applicant's project is located in the northwest corner of his property and is as far removed from the common property line with the Petitioner as is possible without violating setback lines. The Petitioner's property is located to the southeast of the project. The project as now contemplated calls for the construction of a boat deck and boat house with dimensions of approximately 800 square feet. The details of this construction may be found in a copy of the Application for Permit which is the Department of Environmental Regulation's Exhibit No. 1 admitted into evidence. The boat house and boat dock would be constructed on Lake Minneola, Lake City, Florida, near the town of Clermont, Florida. Lake Minneola is a navigable waterway and the boat dock and boat house would extend into the navigable water body. The discussion of the project as found in the Respondent, Department of Environmental Regulation's Exhibit No. 1 is an accurate depiction with the exception that the dock will have an increase in length from the original proposal of 70 feet to a new proposal of some 80 to 84 feet. Nonetheless, with the optimum extension, the amount of square footage still closely approximates the initially requested 800-square-foot amount. The reason for the change is due to the rise in the water level of the lake causing the mean high water line to be further landward than was the case at the time the permit was first applied for. The additional extension of the dock is necessary to allow for dry access to the water and to reach the open waterway beyond the growth of maidencane grass (Panicum Hemitomon) near the shoreline. In keeping with allowed exemptions found in Section 403.813, Florida Statutes, and Rule 17-4.04, Florida Administrative Code, 500 square feet of the deck has been constructed and this portion of the dock as constructed may be seen in the Respondent, Raymond B. Spangler's Exhibit No. 10 admitted into evidence, which is a photograph of the partially completed dock. Other photographs of the partially completed dock and the surrounding area of the lake showing the adjacent property may be found as Respondent, Spangler's Exhibits 5 through 9. The Respondent, Spangler's Exhibit No. 4, a composite which was admitted into evidence, is a series of photographs and an overlay which by scale shows a view of the completed dock and a depiction of the boat house when completed. The dock, when completed, will be constituted of a four-foot walkway extending approximately 80 to 84 feet into the water, intersecting at right angles at the terminus of the dock and forming a "T" shape. The boat house would be located adjacent to the walkway leading to the deck terminus. The dimensions of the covered boat house would be 25 feet by 14 feet. The depth of the water in the lake at the location of the continuing dock construction is sufficiently deep to allow the construction of the dock without the necessity of dredging. There is an extensive grassy community mostly constituted of maidencane (Panicum Hemitomon) and although some of the grassy community has been removed during the construction phase of the project, the denuded area may be easily reconstituted and the applicant has expressed his intent to achieve this end as a means to avoid further erosion which has started to occur at the site. None of the erosion which has occurred has interfered with the property of neighboring landowners. The impact of the continued construction in its affect on water quality would be inconsequential. Furthermore, the construction as now completed and as contemplated does not and would not constitute a hazard to navigation, nor interfere with and cause a danger to participants in water sports and related activities that take place on Lake Minneola. When the project is completed the aquatic vegetation can be expected to return and to remain as a viable wetland community. This is due to the fact that the amount of water surface covered by the project is slight and there is sufficient sunlight to support the aquatic vegetation even in the shaded areas. During the construction phase the amount of turbidity caused by the construction has been de minimis, and will be, in view of the fact that the bottom of the lake is a sand base which settles out quickly. This settling effect was seen by the project evaluator, James Morgan, Department of Environmental Regulation, when he toured the site of the construction and saw Respondent Spangler placing pilings. Morgan noted that the turbidity involved was of a short duration. The project will not interfere with fish and wildlife either in their day-to-day activities or in their propagation. None of the standards pertaining to water quality as found in Chapter 17-3, Florida Administrative Code, will be violated by the project. The project will not be an unreasonable obstruction to the view of adjoining riparian owners and the applicant does not intend to use the boat house as a dwelling. When the project was first reviewed by the State of Florida, Department of Environmental Regulation, that agency notified the Florida Game and Fresh Water Fish Commission; the St. Johns River Water Management District, and the Department of Pollution Control of Lake County, Florida. None of these agencies have made known any objection to the project and the Department of Pollution Control of Lake County has specifically indicated their lack of opposition by written comment, a copy of which may be found as the Department of Environmental Regulation's Exhibit No. 3 admitted into evidence.
Recommendation It is recommended that the Applicant/Respondent, Raymond B. Spangler, be allowed to conclude the construction of the boat deck and boat house as contemplated by the application of May 11, 1979, with the addendum that the dock length be extended to 80 feet to 84 feet as necessary; with the proviso that the applicant ensure that the grassy community be returned to its pristine condition in the area of his project, to prohibit further erosion and that these results be accomplished by the issuance of a permit pursuant to the conditions as outlined. DONE AND ENTERED this 16th day of November, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Robert F. Vason, Jr., Esquire Raymond B. Spangler 408 East Fifth Avenue Route 3, Box 319 Mount Dora, Florida 32757 Clermont, Florida 32711 Segundo J. Fernandez, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issue is whether the Department of Environmental Protection should issue Environmental Resource Permit No. 50- 0269698-002.
Findings Of Fact Parties Mr. Tsolkas is a resident of Lake Worth, which is in southeastern Palm Beach County. He is the co-chair of the PBCEC, and he uses the Dupuis and J.W. Corbett Wildlife Management Areas (WMAs) for various recreational and “peace of mind” activities. He is concerned that the proposed pipeline will adversely impact his enjoyment of the WMAs.6 PBCEC is an organization comprised of environmental groups and individuals that are concerned about the environment and quality of life in Palm Beach County. PBCEC has undertaken public outreach, protests, and other advocacy efforts targeting the West Coast Energy Center (WCEC) that will be served by the proposed pipeline. No evidence was presented regarding PBCEC’s membership numbers. Mr. Shulz is a resident of Hope Sound, which is on the eastern coast of Martin County. He is a member of the PBCEC, and he uses the Dupuis and J.W. Corbett WMAs for various recreational activities. He is concerned that the proposed pipeline will adversely impact his enjoyment of the WMAs. He also has concerns regarding the safety of the proposed pipeline. Ms. Larson in a resident of the Loxahatchee area in western Palm Beach County. She uses the Dupuis and J.W. Corbett WMAs for various recreational activities, and she is concerned that the proposed pipeline will adversely impact her enjoyment of the WMAs. She also has concerns regarding the safety of the proposed pipeline. Bonnie Brooks and Danny Brooks were not present at the final hearing, and the record contains no evidence about these Petitioners. Gulfstream is a joint venture owned by Spectra Energy Corporation and the Williams Companies and is in the business of transporting natural gas through pipelines. Gulfstream is a Delaware limited liability company with its principle office in Tampa. The Department is the state agency responsible for regulating construction activities in surface waters and wetlands under the ERP program in conjunction with the water management districts. The Department is responsible for taking final agency action on the proposed permit at issue in this case. The Proposed Pipeline (1) Generally The proposed pipeline is a 34.26-mile, 30-inch diameter natural gas pipeline. The proposed pipeline starts in western Martin County, slightly northwest of Indiantown, and ends in western Palm Beach County at the site of the WCEC being constructed by Florida Power and Light Company (FPL), just north of Twenty Mile Bend. The proposed pipeline is the third phase a pipeline that runs from natural gas supply areas on the coasts of Alabama and Mississippi across the Gulf of Mexico into central and southern Florida. The entire pipeline is 691 miles long, with approximately 240 miles in Florida. The first phase of the pipeline began operating in May 2002, and the second phase began operating in February 2005. The pipeline currently transports approximately 1.1 billion cubic feet per day of natural gas into Florida. The proposed pipeline begins at the existing Gulfstream Station 712, which is referred to as milepost (MP) 0.00. It runs in a southerly direction along the east side of the L-65 Canal, crossing the St. Lucie Canal (at MP 6.34) and continuing to the Martin/Palm Beach county line (at MP 8.50); then runs east to a point west of the Dupuis WMA (at MP 10.20) and runs south along the western boundary of the Dupuis WMA adjacent to an existing power line right-of-way; then turns southeast (at MP 12.14) and runs on the east side of the L-8 Canal; and then turns due south (at MP 30.08) and runs in an existing FPL transmission line right-of-way to its terminus on the WCEC site (at MP 34.26). Gulfstream acquired a non-exclusive pipeline easement from the South Florida Water Management District (SFWMD), which authorizes it to install the proposed pipeline within the L-8 and L-65 canal rights-of-way. The agreement limits the width of the permanent easement to 20 feet, but it provides for 95-foot wide temporary construction easements along the pipeline route. The agreement requires the proposed pipeline to be installed at least three feet below the surface. The proposed pipeline crosses 121 artificial water bodies. It does not cross any natural water bodies. Only three of the crossed water bodies –- the L-8 Canal, the L-65 Canal, and the St. Lucie Canal -- are navigable. The pipeline crosses the L-65 Canal once (at MP 0.11); the St. Lucie Canal once (at MP 6.34); and the L-8 Canal three times (at MP 12.31, MP 13.28 and MP 29.72). The other crossed water bodies are agricultural ditches. The active land uses along the pipeline route are primarily agricultural in nature, consisting of sugar cane fields and sod farms. The passive land uses include the Dupuis and J.W. Corbett WMAs, which are state-owned conservation areas. There is an existing mining operation adjacent to the pipeline route in the vicinity of MP 32.80. The mining company, Palm Beach Aggregates (PBA), uses blasting to produce limestone aggregate and sand. The PBA property line is approximately 290 feet from the proposed pipeline at its closest point, but the actual blasting is as much as “500 feet to thousands of feet away” from the proposed pipeline. The route of the proposed pipeline was revised in August 2007 at the request of the SFWMD and FPL. The initial pipeline route was along the west sides of the L-65 and L-8 Canals. SFWMD requested that the route be shifted to the east side of the canals in order to accommodate potential future canal expansion. The initial pipeline route was along the eastern edge of the FPL transmission line right-of-way. FPL requested that the route be shifted to the center of the right-of-way in order to accommodate future expansion of the transmission line facilities. The revised pipeline route has fewer impacts than the initial route. For example, the initial route had 224 water body crossings, and two wetland crossings, whereas the revised route has only 121 water body crossings, and no wetland crossings. Gulfstream submitted extensive documentation in support of the revised pipeline route. After reviewing that documentation, the Department gave notice of its intent to issue the proposed permit for the revised pipeline route. Notice of the Department’s decision was published in newspapers of general circulation -- the Stuart News in Martin County and in the Palm Beach Post in Palm Beach County -- on or about October 17, 2007. (2) Design and Construction Methods Federal law prescribes minimum pipeline design criteria, including standards for pipe wall thickness and the testing of pipeline welds. Gulfstream took a “compliance plus” approach in the design of the proposed pipeline by going “above and beyond” the minimum requirements in federal law in several respects. First, the pipe used in the proposed pipeline will meet or exceed the wall thickness requirements in federal law. Thicker-walled pipe will used in areas where there is a potential for external forces to affect the pipe, such as under road crossings and in the areas adjacent to PBA’s blasting operations. Second, Gulfstream will x-ray 100 percent of the welded joints on the proposed pipeline, which far exceeds the requirement in federal law that 10 percent of the welds be inspected. Third, Gulfstream will hydrostatically test the proposed pipeline for leaks after construction is complete and before the pipeline is put into operation. Hydrostatic testing involves filling the pipeline with water under pressure higher than the pressure under which the pipeline will operate. A drop in pressure during the test is an indication of a leak in the pipeline, which will be fixed before the pipeline is put into operation. Fourth, Gulfstream will coat the entire proposed pipeline with an anti-corrosive substance -– fusion bond epoxy - – and the pipeline will also be induced with a small DC current in a process known as cathodic protection. These measures will significantly reduce, if not eliminate potential corrosion on the proposed pipeline. Gulfstream will use four construction methods to cross the water bodies within the pipeline route: the isolation plate open cut method; the sheet pile wet open cut method; the horizontal directional drill (HDD) method; and the conventional bore method. The isolation plate open cut method will be used at each minor and intermediate water body crossing, except for those associated with the HDD method. The isolation plate open cut method involves the installation of steel plates upstream and downstream of the proposed crossing. The area between the plates is pumped out so that it is essentially dry. A trench is dug in the dry area and the pipeline is placed in the trench. The trench is then backfilled and stabilized with at least five feet of cover, and then the plates are removed and the water flows back into the area. The sheet pile wet open cut method is similar to the isolation plate open cut method, except that it allows water to continue to flow in the center of the water body during installation of the pipe. This method will be used for the crossing of the L-65 Canal, the second and third crossings of the L-8 Canal, and the crossings of the forebays along the L-8 Canal. Turbidity curtains or sediment barrier baffle systems will be installed upstream and downstream of the areas where the isolation plate open cut and the sheet pile wet open cut methods are used in order to control turbidity. The HDD method will be used to cross the St. Lucie Canal and the Couse Midden archaeological site, as well as at the first crossing of the L-8 Canal. The HDD method involves the boring of a horizontal tunnel along a pre-determined path under the surface feature to be avoided and then pulling a pre-fabricated section of pipe through the tunnel. The pipe installed using this method will be 35 to 40 feet below the surface feature to be avoided. The conventional bore method will be used to cross the railroad track and adjacent agricultural ditch at MP 8.46, as well as the wetland at MP 16.65. The conventional bore method involves the excavation of bore pits on both sides of the feature to be crossed. A tunnel is bored under the feature and then a section of pipe is pulled through the tunnel. The pipe installed using this method will be 10 feet under the railroad track, which is greater than the depth required by federal law, and will be at least five feet under the wetland. Environmental Issues (1) Wetlands and Vegetation The proposed pipeline will not adversely impact the current condition or relative functions of any wetlands. All of the wetlands within the proposed pipeline route have been avoided. The proposed pipeline will be installed under one jurisdictional wetland (at MP 16.65) using the conventional bore method described above. That wetland is a disturbed, low- quality wetland within the actively managed L-8 Canal right-of- way. It is routinely mowed and provides no significant water quality function or habitat value. Gulfstream will install erosion control devices in areas where the pipeline construction corridor abuts wetlands. The erosion control devices will be in place and functional prior to commencement of earth disturbance. Gulfstream will utilize reinforced sediment barriers in lieu of standard sediment barriers, and increased buffers are proposed in areas where construction abuts wetlands on the Dupuis and J.W. Corbett WMAs. The proposed pipeline will not adversely impact listed plant species. No listed plant species were observed or are likely to occur within the proposed pipeline route, which consists of disturbed rights-of-way and agricultural areas. Vegetated areas that are disturbed during the installation of the proposed pipeline will be re-vegetated immediately after construction is complete. Impacts to these areas will be minor and temporary. The disturbed areas will be re-vegetated with herbaceous cover such as bahia grass, common bermuda grass, or annual ryegrass. The areas will be monitored for two growing seasons to determine the success of the revegetation. The proposed pipeline route includes exotic and nuisance plant species, including Brazilian pepper, cogon grass, water hyacinth, and water lettuce. The installation of the proposed pipeline has the potential to spread exotic and nuisance species if appropriate precautions are not taken during construction. Gulfstream has developed, and will implement an Exotic, Nuisance, and Invasive Plant Management Plan to minimize the potential for spreading exotic and nuisance species. The plan requires, among other things, environmental training of construction personnel and “routine monitoring during all phases of construction, clean up, and restoration.” The plan also includes procedures for onsite disposal of exotic and nuisance species disturbed during construction and the cleaning of vehicles and equipment to ensure that exotic and nuisance species are not inadvertently transported to uncolonized areas. The proposed permit includes a specific condition that requires Gulfstream to monitor and maintain the proposed pipeline route –- a total of 214.85 acres -– free of exotic and nuisance species for a period of five years after construction of the pipeline is complete. The easement agreement between Gulfstream and SFWMD requires Gulfstream to relocate approximately 158 native cabbage palm trees within the construction corridor to “suitable locations within the west right of way of L-8 within the Palm Beach County Department of Environmental Resources Management wildlife corridor.” (2) Dupuis and J.W. Corbett WMAs The proposed pipeline route runs along the western boundary of the Dupuis WMA for approximately seven miles (between MP 13.30 and MP 20.18), and it runs along the western boundary of the J.W. Corbett WMA for approximately 9.5 miles (between MP 20.18 and MP 29.70). The revised pipeline route puts the pipeline closer to the boundaries of the WMAs than did the initial pipeline route because the route was moved from the west side of the canals to the east side of the canals. The Fish and Wildlife Conservation Commission (FWCC) manages the Dupuis and J.W. Corbett WMAs. The WMAs, which include extensive wetlands and virtually no development, are used for a variety of public recreation purposes. The proposed pipeline crosses approximately 3.67 acres of the J.W. Corbett WMA. This land, although technically within the boundaries of WMA, is subject to an easement for the L-8 Canal and has been actively managed by SFWMD for canal purposes for at least the past 55 years. Gulfstream is in the process of acquiring approximately 3.75 acres of privately-held land within the boundaries of the J.W. Corbett WMA that it will donate to the State in accordance with the “linear facility policy”7 as mitigation for the crossing of the J.W. Corbett WMA. The parcel that Gulfstream is in the process of acquiring contains oak trees, pine trees, and cypress trees. It also contains the last Indian mound within the J.W. Corbett WMA that is not already in public ownership. Gulfstream will install reinforced sediment barriers and increase buffers adjacent to the wetlands on the WMAs in order to prevent impacts to those areas during construction. The proposed pipeline will not have any direct or indirect impact on the Dupuis WMA. The proposed pipeline’s only impact on the J.W. Corbett WMA is the direct impact to the 3.67 acres of the WMA that the pipeline will cross. This impact is negligible in light of the size of the J.W. Corbett WMA -– approximately 60,000 acres –- and in light of the fact that the portion of the J.W. Corbett WMA that is being crossed is disturbed land that has been actively used for canal purposes for over 55 years. Moreover, this impact will be mitigated in accordance with the “linear facility policy.” Any adverse impacts to the aesthetic qualities of the Dupuis and J.W. Corbett WMAs will be temporary in nature during construction. Once construction is complete, the pipeline will not be visible from the surface. (3) Wildlife The proposed pipeline route consists of disturbed agricultural areas and canal and utility rights-of-way, which are low quality habitat for listed species and other wildlife. The proposed permit is not likey to have any adverse impact on wildlife, including listed species, or their habitat. Gulfstream conducted extensive wildlife surveys during the ERP application process. The survey corridor “extended beyond 150 feet to either side of the pipeline centerline for a minimum survey width of 300 feet,” and also included the temporary work space areas, contractor yards, and aboveground facilities associated with the pipeline. The listed species whose potential habitat includes the pipeline corridor are the wood stork, the Southeastern American kestrel, the crested caracara, the bald eagle, and the gopher tortoise and its commensal species. The wood stork uses areas within and along the proposed pipeline corridor for resting, but not nesting or foraging. Southeastern American kestrel and crested caracara habitat exists adjacent to the first four miles of the proposed pipeline corridor. There is no habitat within the pipeline corridor itself, and no kestrels or caracaras were observed in the adjacent habitat. The nearest bald eagle nest is approximately 2,550 feet from the proposed pipeline route, which is well beyond the 660-foot regulatory protection zone. The nest is within a heavily wooded area of the Dupuis WMA and is not visible from the pipeline route. A total of 18 gopher tortoise burrows were observed within the proposed pipeline route. The burrows are located along the berm of the L-65 Canal between MP 0.04 and MP 1.44. Relocation is FWCC’s preferred method for avoiding impacts to gopher tortoises that inhabit a construction area. The gopher tortoises are moved to another area during construction, but they are free to return to the area from which they were relocated after construction is completed. In December 2007, FWCC issued a permit (No. WR07530a) that allows Gulfstream to capture and relocate up to 18 gopher tortoises. The permit also allows Gulfstream to capture and relocate commensal species, such as the indigo snake, Florida mouse, and gopher frog. The FWCC permit addresses the listed species’ concerns raised by James Schuette, the FWCC employee who provided comments to the Department on the ERP application and who testified at the final hearing in Petitioner’s case-in-chief.8 Gulfstream successfully used gopher tortoise relocation during construction of the first two phases of the pipeline project. Gulfstream will conduct pre-construction surveys to ensure that no listed species have moved into the proposed pipeline route. Qualified environmental inspectors will be on- site on a daily basis during construction to look for listed species and to monitor compliance with the FWCC permit. (4) Water Quality The proposed pipeline will have no permanent adverse impacts on water quality. The construction of the pipeline may have minor temporary impacts on water quality through increased turbidity in the water bodies crossed by the proposed pipeline. Gulfstream will use turbidity curtains and other barriers to control turbidity and minimize impacts to water quality, and it is required to closely monitor water quality during construction. The proposed permit establishes a turbidity standard - - 29 Nephelometric Turbidity Units (NTUs) above background –- that must be maintained outside of the 150 meter “mixing zone” established by the permit.9 The turbidity levels within the “mixing zone” may exceed the 29 NTU standard during construction. The construction methods and turbidity controls used by Gulfstream during construction will ensure that the turbidity standards in the proposed permit are met. These methods were successful in controlling turbidity during the construction of the first two phases of the pipeline. Gulfstream will also undertake other measures to minimize potential water quality impacts. For example, silt fences and hay bales will be used between spoil piles and water bodies, and disturbed areas will be immediately vegetated to limit the potential for sedimentation from erosion. (5) Archeological and Historic Sites Gulfstream conducted extensive cultural resource assessment surveys as part of the ERP application process. The surveys were conducted in a 300-to-400-foot-wide corridor around the centerline of the entire pipeline route. The purpose of the surveys was to identify “historical resources” and “archaeological resources” in the vicinity of the proposed pipeline. Historical resources include structures and buildings at or on the ground surface. Archaeological resources are partial or totaled buried cultural resources. Two historical resources were identified in the surveys: the St. Lucie Canal and the Bryant Sugar Mill. The proposed pipeline will cross the St. Lucie Canal, and the land in the vicinity of the Bryant Sugar Mill will be used for parking and temporary storage of pipes. The proposed pipeline will have no adverse impact on these historical sites. The proposed pipeline will be installed under the St. Lucie Canal using the HDD method; and there will be no parking or material storage within 25 feet of the Bryant Sugar Mill buildings, which themselves will not be used. Two archaeological resources were identified in the surveys: the Couse Midden and a site known as JR-1 that is associated with the Belle Glade archaeological period. The sites were described as “basically, trash, refuse areas, possible habitation sites.” The proposed pipeline will have no adverse impact on these archaeological sites. The proposed pipeline will be installed approximately 40 feet under the Couse Midden site using the HDD method, and the JR-1 site will be entirely avoided. The Division of Historical Resources -- the state agency responsible for evaluating the potential impacts of construction projects on cultural resources -– concurred with the assessment of Gulfstream’s consultant that the proposed pipeline “will have no adverse affect on any cultural resources listed or eligible for listing in the [National Register of Historic Places].” Gulfstream has developed, and will implement an Unanticipated Finds Plan that includes detailed procedures to be followed in the event that previously unreported and unanticipated historic properties or human remains are found during construction. Among other things, the plan requires construction work in the area of the find to be stopped immediately and not restarted until clearance is granted by the environmental manager and archaeological consultant. Additionally, as noted above, Gulfstream is in the process of acquiring a 3.75-acre parcel within the J.W. Corbett WMA that contains an Indian mound and that will be donated to the State. (6) Other Issues The proposed pipeline will have no adverse impact on fishing or other recreational activities in the water bodies within the pipeline route. The agricultural ditches are Class IV waters that are not suitable for fishing or recreational activities. The proposed pipeline will be installed under the St. Lucie Canal, the L-8 Canal, and the L-65 Canal, which are the only water bodies that could support fishing or recreational activities. Any impacts on fishing or recreational activities in the canals will be minor and temporary impacts during construction. The proposed pipeline will not have any impact on marine productivity because the water bodies within the proposed pipeline route are freshwater, not marine or estuary. The proposed pipeline will have no permanent adverse impact on navigation. The only navigable waters crossed by the proposed pipeline are the St. Lucie Canal, the L-8 Canal, and the L-65 Canal, and the proposed pipeline will be installed under the canal bottoms. There will be minor temporary impacts on the navigability of the L-8 and L-65 Canals because those canals will effectively be blocked while the pipeline is installed under those canals using the sheet pile wet open cut method. The impacts will last no more than 48 hours, which is the maximum amount of time that it will take to complete the crossings. The proposed pipeline will not cause harmful erosion. The vegetation on the banks of the water bodies will not be removed until the time of pipe installation, and the area will be immediately re-vegetated after construction. Other erosion control measures will also be implemented, as reflected in the Upland Erosion Control, Revegetation, and Maintenance Plan included as part of the ERP application. The proposed pipeline will not cause harmful shoaling. The agriculture ditches are not flowing water bodies so they are not subject to shoaling, and the construction in the L-8 and L- 65 Canals will occur during the drier months when there is low flow in the canals. After construction is complete, the proposed pipeline will not impede the flow of water so as to cause shoaling because it will be buried under the bottom of the canal. Gulfstream has developed, and will implement a Spill Prevention, Control, and Countermeasure Plan in order to reduce the chance for accidental spills during construction. The plan also includes procedures to be followed in the event of a spill. The easement agreement between Gulfstream and SFWMD requires Gulfstream to pay any additional cost that SFWMD incurs in the installation, repair, or replacement of culverts within the proposed pipeline route as a result of the pipeline being located above an existing or future culvert. The agreement also requires Gulfstream, at its expense, to promptly repair and restore any damage to berms, levees, or other SFWMD improvements that is caused by the construction or operation of the proposed pipeline. The proposed pipeline will not have any material secondary impacts on wetlands or water resources. To the extent that the WCEC project can be considered to be a secondary impact of the proposed pipeline, its impacts on wetlands and water resources were considered as part of the certification proceeding for that project under the Power Plant Siting Act.10 The Department did not specifically evaluate whether the proposed pipeline will impact the Comprehensive Everglades Restoration Project (CERP). Its failure to do so is not unreasonable or inappropriate because the proposed pipeline is not located within the Everglades National Park or Loxahatchee National Refuge areas, and no concerns related to CERP were brought to the Department’s attention by the agencies that provided comments on the ERP application. Moreover, the commenting agencies included SWFMD, which is actively involved in CERP and upon whose property the proposed pipeline will be located. Petitioners expressed concerns regarding the impact of the proposed pipeline on the Everglades and CERP. However, they did not present any persuasive evidence in support of these concerns. The proposed permit includes a specific condition that prohibits Gulfstream from installing the proposed pipeline on property that it does not own without prior written approval of the property owner. This condition may prohibit the installation of the pipeline across the J.W. Corbett WMA unless Gulfstream obtains the approval of the Board of Trustees of the Internal Improvement Trust Fund under the “linear facility policy.” Safety Concerns Petitioners expressed concerns regarding the safety of the proposed pipeline and the potential adverse impacts to the environment and the public if the pipeline were to explode. There is a potential for significant damage if the proposed pipeline were to explode. It is impossible to eliminate all risk of the pipeline exploding. The risk of an explosion has been minimized to the greatest extent practicable through the measures described above that reduce the risk of leaks in the proposed pipeline through corrosion or damage from external forces. The pipe wall thickness was increased in areas adjacent to PBA’s blasting operations even though the conservative blast mitigation analysis prepared by Gulfstream's expert shows that the normal pipe wall thickness is more than adequate to withstand the vibrations caused by PBA’s current permitted and reasonably foreseeable blasting operations. The location of the pipeline -- underground and in existing canal and utility rights-of-way -- also serves to minimize the risk of accidental damage to the pipeline from construction and development activities and hurricanes or other natural disasters. Pressure, temperature, and flow in the proposed pipeline will be continuously monitored at a 24-hour control center, and the pipeline right-of-way will be visually inspected at least once every two weeks. The proposed pipeline includes “test leads” approximately every mile that are used to assess the cathodic protection on the pipeline. The proposed pipeline includes two valves (at MP 0.00 and MP 14.87) that can be used to shut off the flow in the pipeline if necessary. The “valve setting” at MP 14.87 is the only above-ground component of the proposed pipeline other than the valve settings at the start and end of the pipeline. The area around the valve setting will be enclosed by an eight-foot- high fence and covered with gravel. The location of the proposed pipeline will be marked at line-of-sight-intervals and at other key points. The markers will clearly indicate the presence of the pipeline and provide contact information in case of emergency or in the event of excavation in the area of the pipeline by a third party. Gulfstream has procedures in place to respond to any emergency that may arise in the operation of the pipeline, as required by federal law. Gulfstream meets face-to-face with local emergency responders on at least an annual basis to discuss emergency response procedures. It also engages in public education and outreach efforts to address potential concerns regarding the safety of the pipeline.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department issue a final order approving ERP No. 50-0269698-002. DONE AND ENTERED this 8th day of February, 2008, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 8th day of February, 2008.
