Findings Of Fact The Hearing Officer having considered the evidence finds that the proposed use would substantially affect the water resources of the District adversely. While the possibility exists that the fresh water level would return to its present level, the evidence indicates that the water level would be lowered for the 20-30 year life span of the mine, and that thereafter it would take ten (10) years for the fresh water to be replaced and the salt water presumably to be displaced. Szell's projections for the reversal of the salt water effects were based upon a life span of the mine of ten (10) years, which was 2 to 3 times less than Kronin's projections. No evidence was presented regarding recharge of the water table based upon the life span of the mine at 20-30 years, or the effects of salt water intrusion and reduction of the water table for a 30-40 year period. While the economic benefit is important, the testimony was clear that the operation was currently at a slack period. They have only one-fourth of their total work force on the job at present. No evidence was presented regarding their actual water needs while operating at a reduced level. While the current mine payroll is known, the payroll at peak operation is only a projection. When this added benefit would occur is unknown as is its relationship to water needs and usage. The facts are clear that the requested use would violate the rules in several respects regarding denial unless good cause is shown. The burden clearly lies upon the applicant to show how the public interest will be served. In this instance, the showing by the applicant does not support the request for 6,400,000 maximum daily withdrawal and 3,600,000 average daily withdrawal. A payroll of $35,000 per month does not present such an economic interest that the public interest in prevention of salt water intrusion and lowering the water table would be justified. In the absence of a clear showing of good cause, the exceptions should not be granted to the provisions of Rule 16J-2.11(2), (3), and (4), F.A.C.
Recommendation The Hearing Officer having considered the law and the evidence, recommends the application be denied. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of February, 1976. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Staff Attorney Southwest Florida Water Management District Post Office Box 457 Brooksville, Florida 33512 Jack Kronin, Applicant Gulf Coast Aggregates Post Office Box 1686 Crystal River, Florida 32629
The Issue The issue to be determined is whether the applicant, Kanter Real Estate, LLC (Kanter), is entitled to issuance of an Oil and Gas Drilling Permit, No. OG 1366 (the Permit).
Findings Of Fact The Parties Kanter is a foreign limited liability company registered to do business in the State of Florida. Kanter owns 20,000 acres of property in western Broward County, on which it seeks authorization for the drilling of a vertical exploratory well. The exploratory well is to be located on a five-acre site that is subject to an ERP (the Well Site). The Department is the state agency with the power and duty to regulate activities related to the management and storage of surface waters pursuant to chapter 373, Florida Statutes, and to regulate oil and gas resources, including the permitting of activities related to the exploration for and extraction of such resources, pursuant to chapter 377, Florida Statutes. Miramar is a Florida municipal corporation located in Broward County, Florida. Broward County is a political subdivision of the State of Florida with jurisdiction extending to the Kanter property and the Well Site. The Application On July 2, 2015, Kanter submitted its Application for Permit to Drill (Application) to the Department. The proposed Well Site is on land to which Kanter owns the surface rights and subsurface mineral rights. The Application contemplates the drilling of an exploratory well to a depth of approximately 11,800 feet. The Application is not for a production well. The well is to be drilled, and ancillary activities are to be performed on a fill pad of approximately five acres, surrounded by a three-foot high perimeter berm on three sides and the L67-A levee on the fourth. The pad is the subject of an ERP which, as set forth in the Preliminary Statement, is not being challenged. The pad is designed to contain the 100-year, three-day storm. The engineering design incorporates a graded area, berm, and containment with a water control structure and a gated culvert to manipulate the water if necessary. The entire pad is to be covered by a 20 mil PVC liner, is sloped to the center, and includes a steel and concrete sump for the collection of any incidental spills. The pad was designed to contain the full volume of all liquids, including drilling fluid, fuel, and lubricating oil, that are in tanks and containers on the facility. The Application includes technical reports, seismic data, and information regarding the geology and existing producing oil wells of the Upper Sunniland Formation, which Kanter filed for the purpose of demonstrating an indicated likelihood of the presence of oil at the proposed site. The third Request for Additional Information (RAI) did not request additional information regarding the indicated likelihood of the presence of oil at the proposed site. After it submitted its response to the third RAI, Kanter notified the Department of its belief that additional requests were not authorized by law. As a result, the Department completed the processing of the Application without additional RAI’s. On November 16, 2016, the Department entered its Notice of Denial of the Oil and Gas Drilling Permit. The sole basis for denial was that Kanter failed to provide information showing a balance of considerations in favor of issuance pursuant to section 377.241.1/ There was no assertion that the Application failed to meet any standard established by applicable Department rules, Florida Administrative Code Chapters 62C-25 through 62C-30. In particular, the parties included the following stipulations of fact in the Joint Prehearing Stipulation which are, for purposes of this proceeding, deemed as established: The structure intended for the drilling or production of Kanter’s exploratory oil well is not located in any of the following: a municipality; in tidal waters within 3 miles of a municipality; on an improved beach; on any submerged land within a bay, estuary, or offshore waters; within one mile seaward of the coastline of the state; within one mile seaward of the boundary of a local, state or federal park or an aquatic or wildlife preserve; on the surface of a freshwater lake, river or stream; within one mile inland from the shoreline of the Gulf of Mexico, the Atlantic Ocean or any bay or estuary; or within one mile of any freshwater lake, river or stream. The location of Kanter’s proposed oil well is not: within the corporate limits of any municipality; in the tidal waters of the state, abutting or immediately adjacent to the corporate limits of a municipality or within 3 miles of such corporate limits extending from the line of mean high tide into such waters; on any improved beach, located outside of an incorporated town or municipality, or at a location in the tidal waters of the state abutting or immediately adjacent to an improved beach, or within 3 miles of an improved beach extending from the line of mean high tide into such tidal waters; south of 26°00'00? north latitude off Florida’s west coast and south of 27°00'00? north latitude off Florida’s east coast, within the boundaries of Florida’s territorial seas as defined in 43 U.S.C. 1301; north of 26°00'00? north latitude off Florida’s west coast to the western boundary of the state bordering Alabama as set forth in s. 1, Art. II of the State Constitution; or north of 27°00'00? north latitude off Florida’s east coast to the northern boundary of the state bordering Georgia as set forth in s. 1, Art. II of the State Constitution, within the boundaries of Florida’s territorial seas as defined in 43 U.S.C. 1301. 19. The proposed oil well site does not contain Florida panther habitat and is located outside of the primary and secondary habitat zones for the Florida panther. 21. There are no recorded archaeological sites or other historic resources recorded within the area of the proposed oil well site. Kanter submitted a payment of $8,972.00 for its oil and gas permit application on June 30, 2016 pursuant to Rule 62C- 26.002(5)(c), F.A.C. Kanter’s application includes sufficient information and commitments for performance bonds and securities. DEP and Intervenors do not claim that the application lacks the information required in rule 62C-26.002, F.A.C. Kanter’s application includes an organization report that satisfies the requirements of rule 62C-26.003(3), F.A.C. Kanter’s engineering aspects of the site plan for the proposed project site, are appropriate. Kanter’s survey submitted to DEP in support of its application includes a suitable location plat which meets the minimum technical standards for land surveys. Kanter’s application includes an appropriate description of the planned well completion. DEP and Intervenors do not claim that the drilling application lacks the information required by rule 62C-26.003, F.A.C. Kanter’s Application proposes using existing levees to provide access to the proposed Kanter well site. Kanter did not propose to construct additional roads for access. Kanter’s proposed well site is located 332 feet from the L67-A levee, which serves as a roadway for trucks used to perform operations and maintenance on the levees and canals in the area. Kanter’s application does not lack any information required by DEP with respect to the location of roads, pads, or other facilities; nor does it lack any information regarding the minimization of impacts with respect to the location of roads. DEP and Intervenors do not contend that the permit should be denied based upon the proposed “spacing” of the well, or drilling unit, as that term is used in rule 62C-26.004, F.A.C. Kanter’s application includes appropriate plans for the construction of mud tanks, reserve pits, and dikes. Kanter agrees to a reasonable permit condition requiring that if water is to be transported on-site, that it will add additional tanks for the purpose of meeting water needs that would arise during the drilling process. Kanter’s design of the integrated casing, cementing, drilling mud, and blowout prevention programs is based upon sound engineering principles, and takes into account all relevant geologic and engineering data and information. Kanter’s proposed casing plan includes an additional casing string proposed in its response to DEP’s Third Request for Additional Information. This casing plan meets or exceeds the requirements of 62C-27.005, F.A.C. Kanter’s proposed casing and cementing program, as modified, meets or exceeds all applicable statutory and rule criteria.[2/] Kanter’s response and documents provided in response to DEP’s 3rd RAI satisfactorily resolved DEP’s concern regarding the risk of passage of water between different confining layers and aquifers resulting from the physical act of drilling through the layers of water and the intervening soil or earth. Kanter’s application includes a sufficient lost circulation plan. Kanter’s application is not deficient with respect to specific construction requirements which are intended to prevent subsurface discharges. Kanter’s drilling fluids plan is appropriate and is not deficient. Kanter’s blowout prevention equipment and procedures are appropriate and are not deficient. Kanter’s plans for blowout prevention are not insufficient. Kanter’s proposed oil pad is above the 100 year flood elevation and under normally expected circumstances would not be inundated by water if constructed as proposed in Kanter’s application. Kanter’s application includes a Hydrogen Sulfide Safety Plan that includes standards which are consistent with the onshore oil and gas industry standards set forth in the American Petroleum Institutes’ Recommended Practice. DEP and Intervenors do not claim any insufficiencies with respect to Kanter’s Hydrogen Sulfide Gas Contingency Plan, the sufficiency of secondary containment, its construction plans for a protective berm around the drilling site and storage tank areas of sufficient height and impermeability to prevent the escape of pad fluid, its pollution prevention plan, its safety manual, or its spill prevention and cleanup plan. DEP and Intervenors do not contend that the permitting of the well would violate section 377.242(1), F.S., regarding permits for the drilling for, exploring for, or production of oil, gas, or other petroleum products which are to be extracted from below the surface of the land only through the well hole(s). DEP and Intervenors do not contend that Kanter’s application violates the applicable rule criteria for oil and gas permitting set forth in Chapters 62C-25 through 62C-30, Florida Administrative Code. In addition to the foregoing, Kanter is not seeking or requesting authorization to perform “fracking,” and has agreed to a permit condition that would prohibit fracking. As a result of the foregoing, the parties have agreed that the Application meets or exceeds all criteria for an exploratory oil well permit under chapters 62C-25 through 62C-30. The Property Kanter owns two parcels of land totaling 20,000 acres in the area of the proposed Well Site: a northern parcel consisting of approximately 11,000 acres and a southern parcel consisting of approximately 9,000 acres. Kanter assembled its holdings through a series of acquisitions by deeds from 1975 to 1996. The Well Site is to be located within the southern parcel. On August 7, 1944, Kanter’s predecessor in title, Dallas Investment Co., acquired by tax deed all interests in a parcel within the 9,000-acre southern parcel described as “All Section 23 Township 51 South, Range 38 East, 640 Acres,” including, without reservation, the oil, gas, minerals, and phosphate. The evidence of title submitted as part of the Application indicates that a “Kanter” entity first became possessed of rights in Section 23 in 1975. By virtue of a series of transactions extending into 1996, Kanter currently holds fee title to all surface rights, and title to all mineral rights, including rights to oil, gas, and other mineral interests, within Section 23 Township 51 South, Range 38 East. The Well Site specified in the Application is within Section 23, Township 51 South, Range 38 East. Kanter’s property is encumbered by a Flowage Easement that was granted to the Central and Southern Flood Control District in 1950, and is presently held by the South Florida Water Management District (SFWMD). The Flowage Easement guarantees Kanter access to the entire easement property “for the exploration or drilling for, or the developing, producing, storing or removing of oil, gas or other . . . in accordance with sound engineering principles.” Kanter has the legal property right to locate and drill the well, and the exploratory well is consistent with Kanter’s ownership interest. The Well Site is located in a 160-acre (quarter section) portion of the 640-acre tract described above, and is within a “routine drilling unit,” which is the block of land surrounding and assigned to a well. Fla. Admin. Code R. 62C-25.002(20) and 62C-25.002(40). The Kanter property, including the Well Site, is in the historic Everglades. Before efforts to drain portions of the Everglades for development and agricultural uses, water flowed naturally in a southerly direction through land dominated by sawgrass and scattered tree islands. The tree islands were generally shaped by the direction of the water flow. Beginning as early as the late 1800s, dramatically increasing after the hurricane of 1947, and extending well into the 1960s, canals, levees, dikes, and channels were constructed to drain, impound, or reroute the historic flows. Those efforts have led to the vast system of water control structures and features that presently exist in south Florida. The Well Site, and the Kanter property as a whole, is located in Water Conservation Area (WCA)-3. WCA-3 is located in western Broward County and northwestern Miami-Dade County. It was constructed as part of the Central and Southern Florida Flood Control project authorized by Congress in 1948, and was created primarily for flood control and water supply. In the early 1960s, two levees, L67-A and L67-C, were constructed on a line running in a northeast to southwest direction. When constructed, the levees separated WCA-3 into WCA-3A to the west and WCA-3B to the southeast. The Well Site is in WCA-3A.3/ The area between L67-A and L67-C, along with a levee along the Miami Canal, is known as the “Pocket.” There is no water control in the Pocket. Although there is a structure at the south end of the Pocket, it is in disrepair, is rarely -- if ever -- operated, and may, in fact, be inoperable. The Well Site is located within the Pocket, on the southern side of L67-A. L67-A and L67-C, and their associated internal and external canals, have dramatically disrupted sheet flow, altered hydrology, and degraded the natural habitat in the Pocket. Water inputs and outputs are entirely driven by rainfall into the Pocket, and evaporation and transpiration from the Pocket. From a hydrologic perspective, the Pocket is entirely isolated from WCA-3A and WCA-3B. The Pocket is impacted by invasive species, which have overrun the native species endemic to the area and transformed the area into a monoculture of cattails. Vegetation that grows in the Pocket dies in the Pocket. Therefore, there is a layer of decomposing vegetative muck, ooze, and sediment from knee deep to waist deep in the Pocket, which is atypical of a functioning Everglades system. L67-A and L67-C, and their associated internal and external canals, impede wildlife movement, interfering with or preventing life functions of many native wildlife species. The proposed Well Site, and the surrounding Kanter property, is in a rural area where future residential or business development is highly unlikely. The property is removed from urban and industrial areas and is not known to have been used for agriculture. The Department has previously permitted oil wells within the greater Everglades, in areas of a more pristine environmental nature, character, and location than the Pocket. The Raccoon Point wellfield is located 24 miles west of the Proposed Project Site within the Big Cypress National Preserve. It is within a more natural system and has not undergone significant hydrologic changes such as the construction of canals, levees, ditches, and dikes and, therefore, continues to experience a normal hydrologic flow. Mr. Gottfried testified that at Raccoon Point, “you can see the vegetation is maintaining itself because the fact that we don’t have levees, ditches canals, dikes, impacting the area. So you have a diversity of plant life. You have tree islands still. You have the normal flow going down.” The greater weight of evidence shows that the Kanter Well Site is far less ecologically sensitive than property at Raccoon Point on which the Department has previously permitted both exploration and production wells. The Biscayne Aquifer The Biscayne Aquifer exists in almost all of Miami- Dade County, most of Broward County and a portion of the southern end of Palm Beach County. It is thickest along the coast, and thinnest and shallowest on the west side of those counties. The western limit of the Biscayne Aquifer lies beneath the Well Site. The Biscayne Aquifer is a sole-source aquifer and primary drinking water source for southeast Florida. A network of drainage canals, including the L-30, L-31, L-33, and Miami Canals, lie to the east of WCA-3B, and east of the Well Site. Those canals penetrate into the substratum and form a hydrologic buffer for wellfields east of the Well Site, including that operated by Miramar, and isolate the portions of the Biscayne Aquifer near public wellfields from potential impacts originating from areas to their west. The canals provide a “much more hydraulically available source” of water for public wellfields than water from western zones of the Biscayne Aquifer, and in that way create a buffer between areas on either side of the canals. The Pocket is not a significant recharge zone for the Biscayne Aquifer. There is a confining unit comprised of organic soils, muck, and Lake Flint Marl separating the Pocket and the Well Site from the Fort Thompson formation of the Biscayne Aquifer. There is a layer of at least five feet of confining muck under the L67-A levee in the area of the Well Site, a layer that is thicker in the Pocket. The Well Site is not within any 30-day or 120-day protection zones in place for local water supply wells. The fact that the proposed well will penetrate the Biscayne Aquifer does not create a significant risk of contamination of the Biscayne Aquifer. The drilling itself is no different than that done for municipal disposal wells that penetrate through the aquifer much closer to areas of water production than is the Well Site. The extensive casing and cementing program to be undertaken by Kanter provides greater protection for the well, and thus for the aquifer, than is required by the Department’s rules. A question as to the “possibility” that oil could get into the groundwater was answered truthfully in the affirmative “in the definition of possible.” However, given the nature of the aquifer at the Well Site, the hydrological separation of the Well Site and well from the Biscayne Aquifer, both due to the on-site confining layer and to the intervening canals, the degree of casing and cementing, and the full containment provided by the pad, the testimony of Mr. Howard that “it would be very difficult to put even a fairly small amount of risk to the likelihood that oil leaking at that site might possibly actually end up in a well at Miramar” is accepted. The Sunniland Formation The Sunniland Formation is a geologic formation which exists in a region of South Florida known as the South Florida Basin. It is characterized by alternating series of hydrocarbon-containing source rock, dolomite, and limestone of varying porosity and permeability and evaporite anhydrite or mudstone seal deposits. It has Upper Sunniland and Lower Sunniland strata, and generally exists at a depth of up to 12,000 feet below land surface (bls) in the area of the Well Site. Underlying the Sunniland Formation is a formation generally referred to as the “basement.” The basement exists at a depth of 17,000-18,000 feet bls. Oil is produced from organic rich carbonate units within the Lower Cretaceous Sunniland Formation, also known as the Dark Shale Unit of the Sunniland Formation. The oil produced in the Sunniland Formation is generally a product of prehistoric deposits of algae. Over millennia, and under the right conditions of time and pressure, organic material is converted to hydrocarbon oil. The preponderance of the evidence demonstrates that active generating source rock capable of producing hydrocarbons exists in the Sunniland Formation beneath the Kanter property. The preponderance of the evidence also indicates that the oil generated in the Sunniland Formation is at a sufficient depth that it is preserved from microbial degradation, which generally occurs in shallower reservoirs. The Upper Sunniland Formation was formed in the Cretaceous geological period, between 106 and 100 million years ago. Over that period, sea levels rose and fell dramatically, allowing colonies of rudists (a now extinct reef-building clam) and oysters to repeatedly form and die off. Over time, the colonies formed bioherms, which are reef-like buildups of shell elevated off of the base of the sea floor. Over millennia, the bioherms were exposed to conditions, including wave action and exposure to air and rainwater, that enhanced the porosity of the component rudist and oyster shell. Those “patch reefs” were subsequently buried by other materials that formed an impermeable layer over the porous rudist and oyster mounds, and allowed those mounds to become “traps” for oil migrating up from lower layers. A trap is a geological feature that consists of a porous layer overlain by an impervious layer of rock that forms a seal. A trap was described, simplistically, as an upside down bowl. Oil, being lighter than water, floats. As oil is generated in source rock, it migrates up through subterranean water until it encounters a trapping formation with the ability to create a reservoir, and with an impervious layer above the porous layer to seal the trap and prevent further migration, thus allowing the “bowl” to fill. The reservoir is the layer or structure with sufficient porosity and permeability to allow oil to accumulate with its pores. The thickness of the layer determines the volume of oil that the reservoir is capable of retaining. Although rudist mounds are generally considered to be more favorable as traps due to typically higher porosity, oyster mound traps are correlated to producing wells in the Sunniland Formation and are primary producers in the Felda field and the Seminole field. The Lower Sunniland Formation is a fractured carbonate stratum, described by Mr. Aldrich as a rubble zone. It is not a traditional structural trap. Rather, it consists of fractured and crumbling rock thought to be created by basement shear zones or deep-seated fault zones. It has the same source rock as the Upper Sunniland. There is little information on traps in the Lower Sunniland, though there are two fields that produce from that formation. A “play” is a group of prospects or potential prospects that have the same source rock, the same reservoir rock, the same trap style, and the same seal rock to hold in the hydrocarbons. The producing oil fields in the Sunniland Formation, including Raccoon Point, Sunniland, Felda, West Felda, and Lake Trafford are part of a common play known as the Sunniland Trend. The Sunniland Trend is an area of limestone of greater porosity within the Sunniland Formation, and provides a reasonable extrapolation of areas that may be conducive to oil traps. The Sunniland Trend extends generally from Manatee County on the west coast of Florida southeasterly into Broward County and the northwestern portion of Miami-Dade County on the east coast of Florida. The trend corresponds to the ancient Cretaceous shoreline where rudist and oyster bioherms formed as described above. In 2003, the “Mitchell-Tapping” report, named after the husband and wife team, identified two separate trends within the Sunniland Trend, the rudist-dominant West Felda Trend, and the more oyster-based Felda Trend. Both are oil-producing strata. The Felda Trend is more applicable to the Kanter property. Throughout the Sunniland Trend, hydrocarbon reservoirs exist within brown dolomite deposits and rudist and oyster mounds. Dolomite is a porous limestone, and is the reservoir rock found at the productive Raccoon Point oil wellfield. The evidence indicates that a brown dolomite layer of approximately 20 feet underlies the Well Site, and extends in all directions from the Well Site. A preponderance of the evidence indicates that the Kanter property, including the Well Site, is within the Sunniland Trend and its Felda Trend subset.4/ Oil produced from wells in the Sunniland Trend is typically thick, and is not under pressure. The oil does not rise through a bore hole to the surface, but must be pumped. The Raccoon Point Field, which is the closest productive and producing wellfield to the proposed Well Site, is located approximately 24 miles to the west of the Well Site, within the Sunniland Trend. Raccoon Point contains numerous well sites, of which four or five are currently producing, and has produced in the range of 20 million barrels of oil since it began operation in the late 1970s. Cumulative production of oil from proven fields in the South Florida Basin, including fields in the Sunniland Formation, is estimated to be in excess of 160 million barrels. Estimates from the U.S. Geological Service (USGS) indicate that 25 new fields capable of producing five million barrels of oil each are expected to be found within the Lower Cretaceous Shoal Reef Oil Assessment Unit, which extends into the Kanter property. Estimates of the potential reserves reach as high as an additional 200 million barrels of oil. The Dollar Bay Formation Another formation that has potential for oil production is the Lower Cretaceous Dollar Bay Formation, also in the South Florida Basin. The Dollar Bay Formation exists beneath the Kanter property at a shallower depth than the Sunniland Formation, generally at a depth of 10,000 feet in the vicinity of the Well Site. Most of the Dollar Bay prospects are on the east side of the South Florida Basin. Most of the wells in the South Florida Basin are on the west side. Thus, there has not been much in the way of exploration in the Dollar Bay Formation, so there is a lack of data on traps. Dollar Bay has been identified as a known oil-bearing play by the USGS. It is a self-source play, so the source comes from the Dollar Bay Formation itself. Dollar Bay exists both as potential and mature rock. It has known areas of very high total organic content (TOC) source rock; logged reservoir in the formation; and seal rock. There have been three oil finds in the Dollar Bay formation, with at least one commercial production well. Kanter will have to drill through the Dollar Bay Formation to get to the Upper Sunniland formation, thus allowing for the collection of information as to the production potential of the prospect. Although Dollar Bay is not generally the main “target” of the Permit, its potential is not zero. Thus, consideration of the Dollar Bay Formation as a factor in the calculation of risk/success that goes into the decision to drill an exploratory well is appropriate. Initial Exploratory Activities In 1989, Shell Western E&P, Inc. (Shell), conducted extensive seismic exploration in south Florida. Among the areas subject to seismic mapping were two lines -- one line of 36,000 feet mapped along the L67-A levee, directly alongside the Well Site, and the other of approximately 10 miles in length along the Miami Canal levee. The lines intersect on the Kanter property just north of the Well Site. The proposed exploration well is proposed to extend less than 12,000 feet deep. The seismic mapping performed by Shell was capable of producing useful data to that depth. The seismic methodology utilized by Shell produced data with a high degree of vertical and spatial resolution. Given its quality, the Shell data is very reliable. Shell did not use the seismic data generated in the 1980s, and ultimately abandoned activity in the area in favor of larger prospects, leaving the smaller fields typical of south Florida for smaller independent oil companies. The Shell seismic data was purchased by Seismic Exchange, a data brokerage company. In 2014, Kanter purchased the seismic data from Seismic Exchange for the lines that ran through its property. With the purchase, Kanter received the original field tapes, the support data, including surveyors’ notes and observer sheets which describe how the data was acquired, and the recorded data. As a result of advances in computer analysis since the data was collected, the seismic data can be more easily and accurately evaluated. It is not unusual for companies to make decisions on whether to proceed with exploration wells with two lines of seismic data. Mr. Lakin reviewed the data, and concluded that it showed a very promising area in the vicinity of the L67-A levee that was, in his opinion, sufficient to continue with permitting an exploratory oil well. Mr. Lakin described the seismic information in support of the Application as “excellent data,” an assessment that is well-supported and accepted. Mr. Pollister reviewed the two lines of seismic data and opined that the information supports a conclusion that the site is a “great prospect” for producing oil in such quantities as to warrant the exploration and extraction of such products on a commercially profitable basis. Seismic Data Analysis The seismic lines purchased by Kanter consist of line 970, which runs southwest to northeast along the L67-A levee, and a portion of line 998, which runs from northwest to southeast along the Miami Canal levee. The lines intersect at the intersection of the two levees. The data depicts, among others, the seismic reflection from the strata of the Sunniland Trend, and the seismic reflection from the basement. The depiction of the Sunniland Trend shows a discernable rise in the level of the strata, underlain by a corresponding rise in the basement strata. This rise is known as an anticline. An anticline is a location along a geologic strata at which there is an upheaval that tends to form one of the simplest oil traps that one can find using seismic data. In the South Florida Basin, anticlines are typically associated with mounded bioherms. A “closed structure” is an anticline, or structural high, with a syncline, or dip, in every direction. A closed structure, though preferable, is not required in order for there to be an effective trap. Most of the Sunniland oil fields do not have complete closure. They are, instead, stratigraphic traps, in which the formation continues to dip up and does not “roll over.” Where the rock type changes from nonporous to porous and back to nonporous, oil can become trapped in the porous portion of the interval even without “closure.” Thus, even if the “bowl” is tilted, it can still act as a trap. Complete closure is not necessary in much of the Sunniland Trend given the presence of an effective anhydrite layer to form an effective seal.5/ The seismic data of the Kanter property depicts an anticline in the Sunniland Formation that is centered beneath the Well Site at a depth in the range of 12,000 feet bls. Coming off of the anticline is a discernable syncline, or dip in the underlying rock. Applying the analogies used by various witnesses, the anticline would represent the top of the inverted bowl, and the syncline would represent the lip of the bowl. The evidence of the syncline appears in both seismic lines. The Shell seismic data also shows an anhydrite layer above the Sunniland Formation anticline. The same anticline exists at the basement level at a depth of 17,000 to 18,000 feet bls. The existence of the Sunniland formation anticline supported by the basement anticline, along with a thinning of the interval between those formations at the center point, provides support for the data reliably depicting the existence of a valid anticline. A basement-supported anticline is a key indicator of an oil trap, and is a feature commonly relied upon by geophysicists as being indicative of a structure that is favorable for oil production. The seismic data shows approximately 65 feet of total relief from the bottom to the top of the anticline structure, with 50 feet being closed on the back side. The 50 feet of closed anticline appears to extend over approximately 900 acres. There is evidence of other anticlines as one moves northeast along line 970. However, that data is not as strong as that for the structure beneath the Well Site. Though it would constitute a “lead,” that more incomplete data would generally not itself support a current recommendation to drill and, in any event, those other areas are not the subject of the permit at issue. The anticline beneath the well site is a “prospect,” which is an area with geological characteristics that are reasonably predicted to be commercially profitable. In the opinion of Mr. Lakin, the prospect at the location of the proposed Well Site has “everything that I would want to have to recommend drilling the well,” without a need for additional seismic data. His opinion is supported by a preponderance of the evidence, and is credited. Confirmation of the geology and thickness of the reservoir is the purpose of the exploratory well, with the expectation that well logs will provide such confirmation. Risk Analysis Beginning in the 1970s, the oil and gas industry began to develop a business technique for assessing the risk, i.e., the chance of failure, to apply to decisions being made on drilling exploration wells. Since the seminal work by Bob McGill, a systematic science has developed. In 1992, a manual was published with works from several authors. The 1992 manual included a methodology developed by Rose & Associates for assessing risk on prospects. The original author, Pete Rose,6/ is one of the foremost authorities on exploration risk. The Rose assessment method is a very strong mathematical methodology to fairly evaluate a prospect. The Rose method takes aspects that could contribute to finding an oil prospect, evaluates each element, and places it in its perspective. The Rose prospect analysis has been refined over the years, and is generally accepted as an industry standard. The 1992 manual also included a methodology for assessing both plays and prospects developed by David White. The following year, Mr. White published a separate manual on play and prospect analysis. The play and prospect analysis is similar to the Rose method in that both apply mathematical formulas to factors shown to be indicative of the presence of oil. Play and prospect analysis has been applied by much of the oil and gas industry, is used by the USGS in combining play and prospect analysis, and is being incorporated by Rose & Associates in its classes. The evidence is convincing that the White play and prospect analysis taught by Mr. Aldrich is a reasonable and accepted methodology capable of assessing the risk inherent in exploratory drilling. Risk analysis for plays and prospects consists of four primary factors: the trap; the reservoir; the source; and preservation and recovery. Each of the four factors has three separate characteristics. Numeric scores are assigned to each of the factors based on seismic data; published maps and materials; well data, subsurface data, and evidence from other plays and prospects; and other available information. Chance of success is calculated based on the quantity and quality of the data supporting the various factors to determine the likelihood that the prospect will produce flowable hydrocarbons. The analysis and scoring performed by Mr. Aldrich is found to be a reasonable and factually supported assessment of the risk associated with each of the prospects that exist beneath the proposed Well Site and that are the subject of the Application.7/ However, Mr. Aldrich included in his calculation an assessment of the Lower Sunniland Formation. The proposed well is to terminate at a depth of 11,800 feet bls, which is within the Upper Sunniland, but above the Lower Sunniland. Thus, although the Lower Sunniland would share the same source rock, the exploration well will not provide confirmation of the presence of oil. Therefore, it is more appropriate to perform the mathematical calculation to determine the likelihood of success without consideration of the Lower Sunniland prospect. To summarize Mr. Aldrich’s calculation, he assigned a four-percent chance of success at the Well Site for the Dollar Bay prospect. The assignment of the numeric scores for the Dollar Bay factors was reasonable and supported by the evidence. Mr. Aldrich assigned a 20-percent chance of success at the Well Site for the Upper Sunniland play. The assignment of the numeric scores for the Upper Sunniland factors was reasonable and supported by the evidence. In order to calculate the overall chance of success for the proposed Kanter exploratory well, the assessment method requires consideration of the “flip side” of the calculated chances of success, i.e., the chance of failure for each of the prospects. A four-percent chance of success for Dollar Bay means there is a 96-percent (0.96) chance of failure, i.e., that a commercial zone will not be discovered; and with a 20-percent chance of success for the Upper Sunniland, there is an 80-percent (0.80) chance of failure. Multiplying those factors, i.e., .96 x .80, results in a product of .77, or 77 percent, which is the chance that the well will be completely dry in all three zones. Thus, under the industry-accepted means of risk assessment, the 77-percent chance of failure means that there is a 23-percent chance of success, i.e., that at least one zone will be productive. A 23-percent chance that an exploratory well will be productive, though lower than the figure calculated by Mr. Aldrich,8/ is, in the field of oil exploration and production, a very high chance of success, well above the seven-percent average for prospecting wells previously permitted by the Department (as testified to by Mr. Linero) and exceeding the 10- to 15-percent chance of success that most large oil companies are looking for in order to proceed with an exploratory well drilling project (as testified to by Mr. Preston). Thus, the data for the Kanter Well Site demonstrates that there is a strong indication of a likelihood of the presence of oil at the Well Site. Commercial Profitability Commercial profitability takes into account all of the costs involved in a project, including transportation and development costs. Mr. Aldrich testified that the Kanter project would be commercially self-supporting if it produced 100,000 barrels at $50.00 per barrel. His testimony was unrebutted, and is accepted. The evidence in this case supports a finding that reserves could range from an optimistic estimate of 3 to 10 million barrels, to a very (perhaps unreasonably) conservative estimate of 200 barrels per acre over 900 acres, or 180,000 barrels. In either event, the preponderance of the evidence adduced at the hearing establishes an indicated likelihood of the presence of oil in such quantities as to warrant its exploration and extraction on a commercially profitable basis.9/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order: Approving the Application for Oil and Gas Drilling Permit No. OG 1366 with the conditions agreed upon and stipulated to by Petitioner, including a condition requiring that if water is to be transported on-site, it will add additional tanks for the purpose of meeting water needs that would arise during the drilling process, and a condition prohibiting fracking; and Approving the application for Environmental Resource Permit No. 06-0336409-001. DONE AND ENTERED this 10th day of October, 2017, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 10th day of October, 2017.
The Issue Whether the Department should grant a permit to IMCF to mine and ultimately reclaim 145 acres of wetlands located primarily in Section 14, Township 31S, Range 23E, Polk County, Florida ("Section 14 Area") on the western edge of a larger wetlands system known as "Hookers Prairie."
Findings Of Fact Background and Procedural History On July 9, 1987, IMCF filed an application with the Department for a permit to mine phosphate rock from and then reclaim the Section 14 Area. The Section 14 Area is owned by IMCF. On December 2, 1987, in response to a determination of incompleteness issued by the Department, IMCF supplied additional information which supplemented and modified the original application. The application as augmented and modified was determined to be complete by the Department on December 7, 1987. Department representatives carried out onsite inspections of the Section 14 Area on September 22 and October 9, 14, and 19, 1987, and issued a written permit application appraisal. Based upon the information contained in the application and on the site visits, the Department determined to issue the requested permit to IMCF subject to certain draft permit conditions. The Department directed IMCF to publish notice of the Department's intent to issue the permit. The Department's notice of intent to issue was published in the Lakeland Ledger, a newspaper of general circulation in the location of the Section 14 Area on March 15, 1988. Petitioners objected to the Department's proposed issuance of the permit by filing their Petition to Intervene and Request for Formal Hearing with the Department on April 7, 1988. Petitioners have standing to intervene in this proceeding and participate as parties for the purpose of objecting to the issuance of the subject permit. Description of Proposed Mining Project The wetlands that make up the Section 14 Area are part of a larger 162 acre project area proposed to be mined and reclaimed by IMCF. This mining area is located to the south of the eastern portion of Bradley Junction, a small residential community. The Section 14 Area wetlands make up 131 acres of the overall project area. The remaining 31 acres of uplands involved in the proposed mining project are not subject to Department permitting requirements. IMCF has all necessary permits and approvals to gain access to the upland areas to carry out mining operations. These uplands areas are located primarily in the northernmost part of the project area directly abutting the location of certain residences and churches in eastern Bradley Junction. The jurisdictional wetlands in the Section 14 Area are located no closer than 450 feet from a residential structure in Bradley Junction. Most of the wetlands in the Section 14 Area are substantially farther away from the Bradley Junction residences. The initial step in the mining process will be to construct a ditch and berm system around the Section 14 Area. This ditch and berm system will effectively segregate the mining area from adjacent wetland areas that are to remain undisturbed. Approximately 99 acres of the Section 14 Area wetlands will actually be mined; the remaining 32 acres will be disturbed by the construction of the ditch and berm system. Following the construction of the ditch and berm, land clearing will take place. Once land clearing is completed, mining operations will commence. In phosphate mining operations, large, electrically-powered draglines are used. The dragline first removes and casts aside the "overburden" which is the earthen material that over lies the "matrix." The matrix is the geologic deposit that contains phosphate rock. The dragline extracts the matrix and places it into nearby pits where high- pressure waterguns are used to create a slurry of the matrix material. This slurry is then pumped to the beneficiation facility several miles distant from the mining operations where the matrix slurry is processed to extract the phosphate rock. The matrix is composed primarily of three major components: phosphate rock, sand, and clay. In the beneficiation process, the phosphate rock is separated from the other two components. Residual clays are then pumped to large settling areas where the clays are allowed to settle and consolidate prior to reclamation. No clay settling area is proposed to be located in the Section 14 Area. The sand "tailings" that are generated in the beneficiation process are pumped back to mined areas for use in reclamation programs. Sand tailings will be used in the reclamation proposed for the Section 14 Area. IMCF proposes to initially carry out ditching and berming activities in the Section 14 Area. The central and southern portion of the project area is planned to be mined during the period from July 1989 and June 1990. The dragline will then mine an area to the west outside of the project area. The dragline will return to mine the northern portion of the project area in May 1991. Actual mining operations in the northern portions of the Section 14 Area wetlands and the uplands near Bradley Junction residences will occur over approximately a seven-month period and the dragline will depart the area in December 1991. There are approximately 800,000 tons of phosphate rock underlying the Section 14 Area wetlands. After extraction and beneficiation, this rock will be used for the production of phosphate fertilizer or other phosphate-based products. Project Modifications IMCF has agreed to the following modifications to the Section 14 Area mining and reclamation project as originally proposed in July 1987: The southern boundary of the Section 14 Area has been moved to avoid encroachment on a small stream channel in the upper reaches of the South Prong of the Alafia River, the outlet from Hookers Prairie. The project has been modified to conform to setback requirements recently adopted by the Board of County Commissioners of Polk County. Under the revised setback requirements, the edge of a mine cut may come no closer than 100 feet from the IMCF property boundary or 250 feet from an occupied residence, whichever distance is greater. In response to concerns about noise and lights associated with mining operations, IMCF has agreed to restrict the hours of mining operations. Mining operations will not take place during the period from 11:00 p.m. to 7:00 a.m. when the dragline cab is located within 700 feet of a residence. In addition, mining operations will be suspended on Sundays during the period from 7:00 a.m. through 3:00 p.m. when a dragline cab is located within 700 feet of any place of worship in the Bradley Junction community. The Polk County Mining Ordinance requires that either a berm or a wire fence be constructed on the perimeter operations to limit unauthorized access. IMCF has agreed to construct both a berm and a solid wooden fence, at least six feet high, along the IMCF property boundaries adjacent to residences located in the Bradley Junction community. IMCF has agreed to expedite the reclamation of areas mined adjacent to residences in the Bradley Junction community. The area encompassing the first mine cut closest to the residences (a distance of 250 to 300 feet) will be recontoured and revegetated within 90 days following completion of mining in the area. The area encompassing the first two mine cuts (a distance of 500 to 600 feet) will be recontoured and revegetated within six (6) months following completion of mining in the area. Type, Nature and Function of Section 14 Area Wetlands The Section 14 Area is composed of approximately 127 acres of herbaceous (shrubby) wetlands and approximately 4 acres of young hardwood (forested) wetlands. Western Hookers Prairie, including the Section 14 Area, has been adversely impacted by land use activities over the last several decades. Parts of the area have been drained and cleared to accommodate agricultural uses. The resulting widely fluctuating water levels have induced the extensive growth of what the Department considers to be undesirable "nuisance species" such as cattails and primrose willow, in these areas. Other areas, especially in the southern portion of the Section 14 Area, contain some relatively diverse herbaceous wetland systems. The Section 14 Area also has been adversely impacted to some extent by emergency releases of phosphogypsum and acidic process wastewater generated by the chemical manufacture of phosphate-based fertilizer. Such spills occurred in the 1950s and 1960s and resulted in the deposition of high levels of phosphorous and fluoride in western Hookers Prairie. However, the Section 14 area is less affected than eastern parts of the Western Prairie due to a natural slight rise in elevation along the eastern edge of Section 14, causing a natural flow of water containing the contaminants generally south around Section 14. Wetland systems, in general, can perform certain valuable ecological functions. These functions include: nutrient retention/removal, sediment trapping, flood storage desynchronization, groundwater recharge, food chain support, wildlife habitat, and recreation. Certain wetland systems also serve a shoreline protective/wave dissipation function but that function is not relevant to herbaceous wetland systems like the Section 14 Area that are not adjacent to open water. Because of the nature of the Section 14 Area and the stresses previously imposed upon it, its ability to perform wetland functions has been reduced. The nutrient retention/removal function refers to the ability of the vegetation in wetland systems to remove excess nutrients from water. The Section 14 Area does not perform a significant nutrient retention/removal function. The available data indicate that waters leaving western Hookers Prairie at its outlet to the South Prong of the Alafia River contain more nutrients on balance than do waters entering the system. It is not uncommon for wetlands that are in headwaters of a water system to be net exporters of nutrients. In addition, in this particular area, the historical spills of phosphogypsum and acidic process wastewater have overloaded the sediments in the area with nutrients. The sediment trapping function refers to the ability of wetland systems to filter sediment (suspended particulate matter) from water as it travels through the wetland area. The Section 14 Area performs a reduced sediment trapping function. Although some of the water entering the Section 14 Area comes from Whiskey Store Creek to the north, some of the water entering Section 14 has already traveled relatively long distances through the rest of western Hookers Prairie so that most of the water entering the Section 14 Area does not contain high levels of sediments. As more and more parts are excised for phosphate mining, the importance of the sediment trapping function of the remaining portions, even Section 14, increases, at least until reclamation projects succeed. See "J. Cumulative Impact," below. The flood storage/desynchronization function refers to the ability of a wetland system to store rain water generated during storm events and then to release this water gradually, thus reducing the likelihood of downstream flooding. Hookers Prairie, as a whole, does serve a valuable flood storage/desynchronization function. The approximately 130 acres involved in the Section 14 project area only amount to three to four percent of the overall water storage capacity in the affected area. But the Hookers Prairie wetlands have an approximately two foot thick layer of peat that acts as a sponge to absorb water during inundation and slowly release the stored water over time. It could be misleading to compare the storage of wetland to other water storage acreage on an acre for acre basis. Again, as more and more parts of the Prairie are excised for mining, the importance of the remaining areas increases, at least until reclamation projects succeed. IMCF did not give reasonable assurances as to the cumulative impact of the loss of Section 14 and the other areas under permit on the water storage capacity of the catchment area. See "J. Cumulative Impact," below. The ground water recharge function of wetlands refers to those situations in which a wetland is connected to an underlying groundwater aquifer system in such a way that surface water flows into the wetland system and then down into the underlying aquifer system. The underlying aquifer system is thus "recharged" by the infusion of surface water through the wetland system. The Section 14 Area does not perform any significant groundwater recharge function. Hookers Prairie, including the Section 14 Area, is a topographic depression. Therefore, water can flow out of the uppermost aquifer system (known as the surficial aquifer) into the wetlands, but the reverse is not true. Furthermore, the water in the wetland area cannot move down into lower aquifer systems (such as the intermediate aquifer or the Floridian aquifer) because of the existence of geologic confining layers that underly the Section 14 Area and inhibit vertical groundwater flow. The food chain support function refers to the ability of a wetland to produce organisms or biological material that is used as food by other organisms either in the wetland itself or in surface water areas downstream of the wetland system. The Section 14 Area performs some food chain support functions. Food chain support can be performed in three ways. First, dissolved nutrients, such as phosphorous and nitrogen, can be released into the water. Because of the prior spills into Hookers Prairie, the area is already discharging nutrients in amounts that are normally considered to be high. The second mechanism for performing food chain support is the physical flushing of small aquatic organisms downstream to feed the fish or other larger aquatic organisms. Studies carried out by the United States Environmental Protection Agency indicate that the small organisms found in the downstream reaches of the South Prong of the Alafia River do not appear to be similar to those found at the point of discharge from Hookers Prairie. These data indicate that Hookers Prairie produces and releases this type of food chain support but that its direct impact does not extend significantly into the southern reaches of the South Prong of the Alafia River, as compared to the total production from other tributaries of the river. The third type of food chain support is the release of detrital material (partially decomposed vegetation). Detrital material generated in much of Hookers Prairie is likely to be retained in the Prairie because of the sediment/trapping filtration function discussed above in Finding No. 17(b). However, being adjacent to the outflow from the Prairie to the South Prong, Section 14 could be expected to deliver a larger share of detrital material than the portions of the Prairie further east. The Section 14 Area provides a wildlife habitat function although it does not appear to serve as diverse a group of wildlife as is served by the eastern portion of Hookers Prairie. The Section 14 Area is not utilized for recreational purposes. It is densely vegetated so that access by man is difficult. There are no open water areas that could be used for hunting or fishing. Mitigation IMCF proposes to mitigate the temporary loss of function caused by the mining of the Section 14 Area by reclaiming the area following the completion of mining operations. The first step in reclamation will be the pumping of sand tailings back into the project area to create a land surface at approximately the original grade. The previously moved overburden material will then be spread and recontoured. Stockpiled organic muck material will then be spread over the reclamation area to provide a nutrient source to support plant growth. Department representatives will review and approve the final contours to assure that they are similar to those found in the original natural environment. Following completion of the contouring, the portion of the project area that will be reclaimed as a wetland will be inundated with water and then revegetated with desirable wetland species. The reclamation of the Section 14 Area will be subject to extensive monitoring by IMCF. This monitoring will involve short- and long-term vegetation monitoring and water quality monitoring. The results of this monitoring will be submitted to the Department, and the project will not be released from regulatory scrutiny until certain success criteria are met. During the period of recontouring, revegetation, and monitoring, the berm around the Section 14 Area will remain in place to isolate the area from the adjacent Hookers Prairie system. Once the Department determines that the vegetation in the Section 14 Area has been successfully reestablished, the Department will authorize IMCF to install culverts in the berm to allow for the gradual introduction of exchange of waters between the reclaimed area and the natural Hookers Prairie system. Following this process, after approval by the Department, IMCF will remove the berm area by pushing it back into the ditch and will replant the disturbed area in the previous location of the berm with desirable herbaceous wetland species. At that point, the reclaimed area will be totally reconnected to the rest of the western Hookers Prairie. The reclamation of the Section 14 Area will involve the recreation of approximately 121 acres of herbaceous wetlands. This is approximately the same amount of herbeceous wetlands that were mined or disturbed in the Section 14 Area. In addition, 24 acres of forested wetlands will be created. This is approximately six times the number of area of forested wetlands that were in the Section 14 Area prior to mining operations. IMCF has had extensive experience in the reclamation of wetland systems in Florida. The company has reclaimed over 3,000 acres of wetlands over the last ten years. The company's experience includes the reclamation of both herbaceous wetland systems and forested wetland systems. With regard to the proposed mitigation, the primary issue at dispute in the hearing was whether IMCF can control the growth of nuisance species, such as cattail and primrose willow, in accordance with the Department's current policy. This policy, which will be implemented as a condition of any permit issued in this matter, is that nuisance species shall be limited to ten percent or less of the total cover or, if these species exceed ten percent of the total cover, their density must be declining over several years. IMCF would use several methods to limit the growth of nuisance species in the reclamation area. The company will flood the reclamation area immediately following recontouring. In addition, the company will assure that water levels are maintained in the project area throughout the vegetation period. These hydrological controls are designed to preclude seeds from nuisance species growing nearby from blowing into the area and propagating. These seeds will not propagate under water. In addition, the project area would be covered by a two-inch to six- inch layer of organic mulch material. The use of such organic material inhibits the growth of nuisance species. Finally, IMCF will plant desirable wetland species on a relatively dense basis; i.e., on three- to five-foot centers. When established, these desirable species are expected to quickly grow and outcompete any nuisance species that may enter the area. There is legitimate concern about the growth of nuisance species in the reclamation area and about the company's ability to eradicate or remove nuisance species if in fact the area does become invaded. There also is legitimate concern that the disturbance caused by the construction of the perimeter berm might induce the growth of a five to fifteen foot band of nuisance species outside of the Section 14 Area. Even if this occurred, it would not have a significant impact on the Hookers Prairie system, which already contains a large amount of "nuisance species." Finally, there is a concern whether nuisance species can be kept out of the ditch and berm area after the berm is leveled since there no longer would be hydrological controls in place. I am persuaded by the weight of the evidence presented in this matter that, with the following additional special permit conditions, IMCF has provided sufficient reasonable assurances to the Department that it will be able to successfully reclaim the Section 14 Area and to control nuisance species growth in accordance with applicable Department policy: that, in accordance with existing Department policy, the plant material used for revegetation for the reclamation project be plants that grew naturally within 50 miles of the reclamation site; that the elevations in the reclamation site be "fine-tuned" after recontouring but before removal of the ditch and berm to approximate existing elevations as closely as possible except when deviations from existing elevations might be desirable to better accomplish the goals of the reclamation project and reduce nuisance species; that, upon removal of the ditch and berm, all nuisance species (cattails and primrose willow) that may have invaded the perimeter band along the berm (see Finding 25, above) be removed and revegetation over the ditch and berm area be on two to four foot centers to aid competition with any invading nuisance species. Evaluation of Project Impacts Extensive testimonial and documentary evidence was presented at the hearing concerning a wide variety of potential impacts associated with the mining of the Section 14 Area. Potential impacts addressed included the impacts of mining and reclamation upon surface water and ground water quality, upon surface water flow conditions, and upon the availability of ground water for use as a portable water supply by the Bradley Junction residents. In addition, evidence was presented concerning potential impacts upon the Bradley Junction community in the form of fugitive dust, physical damage to structures in the community, and impacts associated with machinery noise generate during the mining and reclamation process. Surface Water Quality The perimeter berm and ditch system around the Section 14 Area will completely segregate the mining operations from the adjacent Hookers Prairie wetland system and the South Prong of the Alafia River. Therefore, the mining operations will not have a direct adverse impact upon the quality of surface water outside of the Section 14 Area. As noted in Findings Nos. 17(a) and 17(b), the temporary exclusion of just the Section 14 Area from the Western Hookers Prairie wetlands system will not have a significant adverse water quality impact. But, see "J. Cumulative Impact", below. Construction of the berm will not significantly affect dissolved oxygen levels in Hookers Prairie even in the areas immediately adjacent to the berm. Natural dissolved oxygen levels in the Hookers Prairie system are relatively low, and its waters are normally in a static or stagnated condition. (Construction of the berm probably will elevate dissolved oxygen levels in some areas near the berm by creation of small open water areas and lower levels in other areas where discarded plant material accumulates.) The weight of the evidence indicates that the construction of the berm will not cause a violation of state water quality standards outside of the Section 14 Area. During the reclamation process, water quality monitoring will take place and the resulting data will be presented to the Department. Upon Department approval, the reclaimed wetland system will be gradually reconnected to the natural Hookers Prairie system. The water quality in the Section 14 Area after reclamation will comply with applicable State water quality standards. Ground Water Quality Several residents of the Bradley Junction community have raised concerns about the quality of the water withdrawn from their portable water supply wells. While it does appear that water from certain of these wells may be of substandard quality, this condition is not a result of phosphate mining operations and will not be affected by the mining and reclamation of the Section 14 Area. The basis for this finding is: Mining in the Section 14 Area will take place in the surficial aquifer system. Portable water supply wells in the Bradley Junction community area draw water from the intermediate aquifer system. The intermediate aquifer system is separated from the surficial aquifer system by a thick, relatively impervious clay layer that significantly impedes the vertical flow of ground water. The Section 14 Area is located hydrologically downgradient from the Bradley Junction community. Any seepage from mining operations will move away from Bradley Junction, not toward that location. The quality of the water that will be found in the mine cuts and ditches in the Section 14 Area is very good and probably would not significantly adversely impact the quality of the portable water drawn from Bradley Junction water supply wells even if it were physically possible for the mining-related waters to reach the wells. The Polk County Public Health Unit of the Department of Health and Rehabilitative Services carried out a study of the quality of portable water in the Bradley Junction community. The study indicates that water from certain of the wells exhibit elevated levels of fecal coliform. The probable source of this contamination is improper sanitary conditions in the area near the well locations. There is no evidence to indicate that phosphate mining operations have any impact on the quality of the water in these wells. Surface Water Flow Conditions At this time, the construction of the berm and ditch system and the mining in the Section 14 Area will have only a minor impact on surface water flow conditions outside of the Section 14 Area. The proposed mining and reclamation project itself will not cause an increased likelihood of flooding in downstream areas nor will it cause increased erosion in the South Prong of the Alafia River. IMCF has applied for and received a "Works of the District" permit for the Section 14 Area from the Southwest Florida Water Management District, the state agency primarily responsible for evaluating the impact of construction activities on surface water flow conditions. But see "J. Cumulative Impact," below. Ground Water Availability The digging of mine cuts in the surficial aquifer can result in a drawdown or lowering of the water table in the surficial aquifer system. If controls were not employed by IMCF in connection with the mining of the Section 14 Area, the surficial aquifer in the area of the Bradley Junction community could be drawn down by as much as five feet below natural levels. IMCF has applied for and received a consumptive use permit from the Southwest Florida Water Management District, the state agency primarily responsible for regulating the use of ground water in the State of Florida. The consumptive use permit requires IMCF to maintain the water level in the surficial aquifer at historic levels taking into account the natural variations in the water table that occur during the year. IMCF will comply with the conditions of the consumptive use permit by the use of two positive control methods. The perimeter ditch surrounding the project site will serve as a hydrological barrier or recharge ditch that will maintain the surficial aquifer water levels at historic levels. In addition, during mining operations, the dragline will cast the removed overburden material against the face of the mine cut. This procedure will have the effect of sealing the face of the mine cut and inhibiting the flow of ground water from contiguous areas into the mine cut. In accordance with the consumptive use permit, IMCF will monitor water levels adjacent to the Section 14 Area to assure compliance with the drawdown restrictions. 1/ As noted in Finding No. 32(a), the portable water supply wells in the Bradley Junction community draw water from the intermediate aquifer system. Water levels in the intermediate aquifer system are not significantly affected by the water levels in the surficial aquifer. The two systems operate independently by virtue of the thick confining layer that separates them. Mining operations in the surficial aquifer in the Section 14 Area will have no effect on the water levels in the intermediate aquifer system underlying the Bradley Junction community. Therefore, the proposed mining operations will have no effect upon the availability of water in the Bradley Junction portable water supply wells. Dust Dragline operations and slurry pit operations are wet process activities that do not generally result in the emission of dust. Dust can be emitted as a result of vehicle travel on access roadways, by land clearing operations, and during reclamation activities especially in the dry season under high wind conditions. IMCF will control dust emissions from the Section 14 Area by use of water trucks to keep access roads moist. In addition, IMCF will curtail land clearing and reclamation operations during periods when high winds are prevailing in the direction of the Bradley Junction community. Physical Impact on Structures Certain residents of the Bradley Junction community have complained that nearby mining operations have caused physical damage to their homes. The evidence presented at the hearing, however, demonstrates that neither vibration caused by the equipment used in mining operations nor the construction of mine cuts will cause any adverse physical effects on nearby structures. The basis for this finding are as follows: Vibration measurements taken in the vicinity of the type of equipment that will be used in the Section 14 Area demonstrates that the vibration levels that will be experienced at the residences closest to the mining operations are far below the level that would cause any structural damage. These worse case conditions would be experienced at a point approximately 250 feet from the mining operations. It should be noted that these conditions will only occur when mining operations are taking place in upland areas outside of the Department's jurisdiction. Vibration impacts resulting from mining activities in the more distant jurisdictional wetland areas are even less significant. A slope stability analysis carried out by Dr. John Garlanger demonstrated that the construction of a mint cut at a distance no closer than 250 feet from a residence will cause no adverse impact on the structural integrity of the residence. This conclusion is underscored by the fact that the dragline, which is larger and heavier than the typical Bradley Junction home, will safely operate very near the edge of the mine cut without significant risk of slope collapse. Any current physical damage to structures in the Bradley Junction community is probably the result of age, water damage, improper site preparation, and other improper construction techniques. Noise Draglines, pumps, and other pieces of heavy equipment to be used in the mining and reclamation of the Section 14 Area will produce noise that is audible to, and will be annoying to, the people living near the project. None of the expected noise levels will exceed the guidelines established by the Federal Highway Administration ("FHA") for construction of highway projects near residential communities. The FHA guidelines require that noise levels may not exceed 70 decibels more than 10 percent of the time. Even in the worst case situation, which involves mining in the upland areas no closer than 250 feet from a residential structure, the expected noise levels will not exceed the FHA guidelines. When mining operations occur at more distant locations, the noise experienced in the Bradley Junction community will be proportionately reduced. The suggested United States Environmental Protection Agency noise level limitation is 55 decibels. At the 55-decibel level, there was scientific evidence that noise exposure resulted in irritability and sleep loss, but no actual hearing loss would occur. The 55 decibel EPA guideline is calculated differently than the FHA guidelines. The maximum levels expected to occur near the Section 14 Area based on the data collected by Mr. Nelson were essentially in compliance with the EPA recommendations. Furthermore, the predicted noise levels reflect outside noise levels. The noise levels inside the structures in the Bradley Junction community would be below the recommended EPA levels because of noise attenuation by the structure. The mining operations would have a reduced impact upon sleep because the company will not operate between the hours of 11 p.m. and 7 a.m. when close to the residences. Mining operations in the northernmost portion of the project will occur over a period of seven months. Reclamation in the immediate vicinity of the Bradley Junction community will be completed within six months following mining operations. The predicted worst case conditions during mining and reclamation will occur only over a few weeks with regard to any particular residence. These worst case conditions will occur in upland areas outside the Department's jurisdiction. Noise resulting from activities taking place within jurisdictional wetlands is at even lower levels. Polk County Ordinance. The governmental body primarily responsible for public health concerns such as dust, noise and vibration impact or structures is the local government, Polk County. Polk County has enacted a mining setback ordinance which is less restrictive than other nearby counties - - only 250' from the nearest residence versus 500' in Hillsborough County and 1000' in Manatee County. Under the Polk County ordinance, IMCF is able to mine as close to Bradley Junction residents as it proposes. Archeological Resources There are no significant historical or archeological resources in the Section 14 Area. Cumulative Impact Hooker's Prairie is a wetlands marsh system which comprises the headwaters of the South Prong of the Alafia River. The Section 14 project area is an integral part of the Prairie. Although IMCF's case thoroughly addressed all other issues raised by the opponents of the Section 14 project-- including noise, dust and even damage to structures from vibration-- its case conspicuously failed to as clearly address the question of cumulative impacts. It is not clear from the evidence if Hookers Prairie historically was 3000 acres, 3500 acres or some other size. Likewise, the current size of the Prairie, unmined and unsevered, also is unclear from the evidence. DER has issued five previous permits for phosphate mining in Hooker's Prairie. These permits are to W. R. Grace for approximately 1000 acres in the Eastern Prairie and IMCF for approximately 120 acres in the Western Prairie, including the recent IMCF Section 12 project involving mining and filling approximately 100 acres of Hooker's Prairie. It is not clear from the evidence how much of the 1000 acres already has been mined. DER's appraisal report, dated November 4, 1987, states that there has been recent mining in Section 18 in the Western Prairie. It points out that, as a result, cattails have intruded into Section 13 of the Prairie from the east. The report states that, aside from the Section 14 project area, there were then only 720 acres of wetland left in the Western Prairie, which has been almost blocked from the Eastern Prairie by mining activities, 620 in Section 13 and 100 in the west side of Section 7. It also states that almost 700 acres "in [the Section 14 project) area alone" were then permitted for mining. Although it is not clear, this appears to consist of 96 acres IMCF had under permit "in this immediate vicinity" and 580 acres of the Prairie to the east. It is not clear whether this acreage is in addition to, or part of, the acreage referred to in Finding 48, above. To date, no one has successfully restored mined wetlands in Hooker's Prairie. IMCF has restored a small, approximately 20 acre tract of wetland in the Western Prairie, but no success determination has yet been made. IMCF's approximately 100 acre restoration in Section 12 is underway. Efforts by Grace to restore mined wetland in the Eastern Prairie were delayed while Grace and DER negotiated an alternative to the original "land and lakes" restoration concept approved under the DER permits. A wetlands restoration concept finally having been agreed to, restoration now is underway. W. R. Grace has plans to mine the entire remaining wetlands of Hookers Prairie in the foreseeable future. Wetland restoration takes approximately two to four years. IMCF plans to mine in Section 14 from July, 1989, through December, 1991. Restoration is planned to take place through December, 1994. It may take longer. During part of this time period, IMCF's 120 acres of restoration in the Western Prairie still will not be functional. There was no evidence to suggest that the Grace wetlands restoration would be completed before IMCF plans to complete its Section 14 restoration project. There was no evidence as to when Grace is expected to complete any restoration of the 1000 acres it has under permit in the Eastern Prairie. The same would be true of any other parts of the wetlands that may be under permit. In light of the substantial, though undeterminable, reduction of the size of Hooker's Prairie from its historical size, the cumulative impact of removing an additional 131 acres of wetland from the system for approximately five or more years is significant. During this time, the size of functional wetland in the Prairie may be close to just half its historical size or even less. IMCF has not given reasonable assurances that the cumulative impact of the loss of another 131 acres of Hooker's Prairie for five or more years, combined with the recent reduction in the size of the functional wetland, will not be contrary to the public interest. Further phosphate mining in Hooker's Prairie should await successful restoration of wetlands in areas already under permit for mining operations.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Department of Environmental Regulation deny the application of IMC Fertilizer, Inc., to mine for phosphate in Section 14, Hooker's Prairie, at this time. RECOMMENDED in Tallahassee, Florida this 14th day of February, 1989. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 14th day of February, 1989.
Findings Of Fact Respondent, Citra Mining, Inc. (Citra), owned a proprietary interest in at least 120 acres of property located in Sections 2 and 3, Township 13 South, Range 22 East, Marion County, Florida. This property lies within a natural surface water storage system known as Black Sink Prairie, an area of approximately 3,860 acres, consisting of wetlands interspersed with open bodies of water and hammocks. Respondent corporation no longer has any interest in the property in question, does not conduct any mining or other activity there, and may soon be dissolved. In late August 1981, R. Dirk Schmidt, Director of the Division of Enforcement in Petitioner's Department of Resource Management, visited Respondent's property in question here and saw Respondent's employees collecting limerock at a depth of 5 to 10 feet below the level of the adjacent land, removing it from the pit, and hauling it away in trucks. His survey of the area during this and subsequent visits revealed that Respondent had created a hole surrounded by various spoil piles and ditches (canals) and had enlarged spoil piles in the area which had existed prior to the commencement of its mining operation. The entire mine area treated this way was ultimately expanded to 87 (plus or minus) acres of the Respondent's property. The water which existed in the mine area was pumped out by Respondent and discharged onto property outside the Respondent's boundaries. At that time, because of drought conditions which had existed for several years, the water flow was sufficiently small that pumping was able to keep the mine site dry. However, since the drought was ended sometime in 1982, the mine area has been underwater and is that way at the present time. Material has been removed from the area by the Respondent's mining operation at depths from 1/2 foot to 8 feet. Of the total 87 (plus or minus) acres disturbed by Respondent, approximately 1.5 acres have been mined to a depth of below 48 feet MSL (the undisturbed marshlands range from wet marsh at 49.5 feet MSL to high marsh at up to 54 feet MSL), 21 acres mined to between 48 and 50 feet MSL, and 27.7 acres to between 50 and 52 feet MSL. An additional 22.5 acres have been only superficially scraped. If unrepaired, natural vegetation will ultimately produce communities appropriate to these elevations and those areas lying below 48 feet MSL will remain open water communities. On April 20, 1982, Respondent applied to Petitioner for a permit to mine limestone by dragline to a depth of 60 feet. The application indicated that no water consumption or discharge would be required. This application was subsequently withdrawn before being acted upon and has never been resubmitted. Consequently, all Respondent's activity in the area has been without permit. Palmer Kinser, an environmental zoologist and entomologist for Petitioner, on several occasions during late 1982, visited the Respondent's site in question for the purpose of examining and assessing the nature of the property, including both those areas impacted by Respondent's mining activity and those areas not impacted. In completing his assessment and in addition to his on-site evaluation, he utilized soil maps of the Soil Conservation Service, aerial photographs, and vegetation and land use maps developed by the Florida Department of Transportation. Be also collected samples from the area and, upon completion of his evaluation, concluded that the larger portion of the property in question was a wetland prior to the commencement of mining. Prior to 1976, all of the mining site, with the exception of several hammocks, was classified as freshwater marsh. However, because of extended drought conditions which existed between then and 1980, terrestrial and opportunistic woody species invaded the area. The soil maps of the area indicate that by far the greatest part of the area, including the mine site, consisted of basically three types of soil: Holopaw sand; Anclote sand; and Anclote-Tomoka Association; all of which are poorly drained soils and all of which are consistent with marsh areas. There are three types of wetland communities represented in the mine area: wet marsh communities on Anclote-Tomoka Association soils and on Anclote sand; high marsh and mixed hardwood forests on Holopaw sands; and in the uplands surrounding the site, Adamsville sands dominated by mixed hardwood forests. In late 1982, visits to the site showed relatively high water levels; and collected data on the area reveals that the water level, previously due to drought conditions, had been low enough for colonies of high ground varieties of plants to become established. However, the continuation of established colonies of drought-resistant marsh species indicates previously existing marsh wetlands during more normal conditions. Marshes play an important part in the ecological scheme of things, contributing to the primary productivity of wetlands and also being important in nutrient assimilation, sediment stabilization, secondary production, provision of habitat, maintenance of species diversity, and other like activities. For example, marsh vegetation helps channel nutrients into desirable production pathways and, by competition, assists in suppressing nuisance vegetation such as the water hyacinth and others. Plants trap and consolidate sediments and, in some cases, contribute to hydrosoils by the deterioration of their own bodies. Organisms in the marsh either are themselves a part of or contribute to the continuation of the food chain for wildlife species including waterfowl, marsh and shore birds, upland game birds, and wild mammals and fish. In substance, then, mining activities by Respondent at the site have either totally removed or substantially disrupted the vegetation on approximately 87 acres of wetlands with resultant damage to the plant and animal life located there. In addition, the extensive spoil deposits generated by the Respondent's unpermitted mining activity inhibit surface water flow, interfering with the periodic exchange of surface water between the mine site and the rest of the prairie. The steep and unstable slopes on the edges of many of the excavated areas are subject to erosion and are unsuitable for the establishment of beneficial vegetation. Most of the adverse impacts of Respondent's activity, as detailed above, can be mitigated and the area restored to ecologically productive status. To do this, it will be necessary to: Level the interior spoil piles and place the spoil into the scraped area, which should then be graded and contoured to an acceptable slope ratio; and Breach the perimeter spoil piles with 50-foot openings in three sepa rate designated areas and dispose of the spoil as outlined in (a) above.
The Issue The manner and extent to which the criteria of Rule 17-7.07, F.A.C., entitled "Dump Closing" may be required by Respondent with respect to the Town of Surfside Dump.
Findings Of Fact In 1949, Petitioner purchased approximately 378.8 acres of land located in the northwest section of Miami, Florida. It sold approximately 250 acres of the eastern portion in 1959 to County Line Development Company. Petitioner utilized the remaining land as a solid waste disposal facility known as the "Surfside Dump," and in early 1955, other municipalities in North Dade and South Broward Counties also began using the facility for waste disposal. Originally, "white" goods, rubbish, garden trash, vehicle bodies, and tires were disposed of at the site, in addition to domestic garbage. Somewhat later, the receipt of vehicle bodies and other oversize waste was discontinued. For a number of years, the basic procedure for disposal was to dump the refuse into open trenches where it was compacted by bulldozers and covered with a layer of locally available material. The dump presently is bounded by Northwest 215th Street on the north, Northwest 47th Avenue on the west, Snake Creek Canal on the south, and the land previously conveyed to County Line Development Company on the east. A large portion of the dump area on the west side has not been used since 1972. (Petitioner's Exhibits 1, 3) Inspections of the dump conducted by Department of Pollution Control representatives at various times from 1973 through 1975 revealed that waste was not being covered in a satisfactory manner in that trenches were dug from old refuse, raw garbage was pushed into the water-filled trenches and then recovered with the old refuse. In 1975, the County Line Land Company filed suit against the Petitioner in the Dade County Circuit Court complaining that the dump constituted a public and private nuisance and was being operated in violation of the county code relating to uncovered garbage, Chapter 10D-12 of the Rules of the Department of Health and Rehabilitative Services governing disposal of garbage, and Chapter 17-7 of the Department of Pollution Control pertaining to regulation of solid waste. The Circuit Court found that the dump adversely affected the health and welfare of the surrounding area, and that although the facility was being used for revenue purposes by Petitioner, the conditions existing there had not been improved over the years. It therefore enjoined Petitioner from accepting further refuse at the site commencing June 30, 1976, except from within its own boundaries. It further gave Petitioner until August 1, 1976, to show that it had complied with Chapter 17-7 of the rules of Respondent or that it had received a temporary operating permit under the pertinent regulations. The decision was affirmed by the First District of Appeal on January 4, 1977. State regulations in effect since 1962 have required sanitary landfills to dispose of garbage in compacted layers with not less than a daily six inches of cover material and a final covering of two feet of compacted earth unless otherwise approved by the regulating state agency. (Rule 170C-10.07, State Board of Health; Rule 10D-12.07, Department of Health and Rehabilitative Services)(Respondent's Exhibits 1-3) On February 4, 1975, the Department of Pollution Control sent Petitioner a Letter of Notice advising that the Surfside Dump was in violation of various provisions of Chapter 403, Florida Statutes, and Chapter 17-7, Florida Administrative Code, by not applying for a temporary operation permit. By letter of March 28, 1975, that Department sent a Warning Notice to Petitioner along the same lines and advising of civil penalties for violation of pollution control laws. On May 3, 1975, Petitioner filed an incomplete application for the temporary operating permit. However, it was not until January 20, 1976, that Petitioner ostensibly furnished the necessary exhibits and public notice of its application. By letter of February 9, 1976, the acting district manager of the Respondent, which had succeeded the Department of Pollution Control, informed Petitioner that the Public Notice which had been published did not meet departmental requirements. (Testimony of Quaas, Respondent's Exhibits 5, 13) On June 1, 1976, the Respondent issued a Notice of Violation to Petitioner which stated that the Surfside Dump was being operated without a valid and current permit in an unsafe and unsanitary manner and thereby had violated various provisions of Chapter 403, Florida Statutes, and Chapter 17-7 Florida Administrative Code. The notice included a section entitled "Orders for Corrective Action" which provided that the Petitioner should reimburse the Respondent for expenses, cease to accept any solid material as of September 30, 1976, and implement a specified system of operation and render monthly reports on the same. It also required Petitioner to close the site no later than July 1, 1977, with a final cover of two feet of clean compacted fill with side slopes not to exceed 3:1 slope, and for the entire site to be seeded or planted with grass or other suitable cover vegetation. The orders also required the Petitioner to complete his operating permit application by sending Respondent a compliance schedule and proof of publication of a Public Notice. Subsequently, on January 16, 1977, the parties entered into a "Consent Agreement and Final Department Orders" after having conducted informal negotiations in the matter. The agreement provided that Petitioner waived any right to a hearing under Chapter 120, F.S., and that it would close the site or convert it to a sanitary landfill within the time established in Rule 17-7.07, F.A.C. It required Petitioner to submit plans for closing or converting the site within a certain time period and for implementation of an Operation plan to cover each day's waste and any existing exposed waste with six inches of clean compacted fill. It further required the Petitioner to submit a plan for monitoring ground water for leachate no later than January 30, 1977. Thereafter, on February 25, 1977, Nathaniel M. Zemel, a consulting engineer employed by Petitioner, submitted a "Landfill Closing Plan" to Respondent's West Palm Beach office which provided for a minimum of 24 inches of earth cover over all refuse on the site. Mr. Zemel estimated that between 250 thousand and 300 thousand cubic yards of fill material would be required to complete the covering operation. However, by letter of March 25, 1977, Petitioner advised Respondent that it did not concur in Mr. Zemel's plan and that Dr. Damodar S. Airan would "further refine the plan to reflect new information." The Airan report was submitted to Respondent on October 5, 1977, and essentially concluded that the existing vegetation on the site would be killed and that other harmful effects would result if a final cover of two feet of fill were to be placed over the landfill area. The report therefore recommended that exposed areas of the dump be covered with approximately six inches of clean fill and that corrective measures for surface drainage be accomplished, including sloping, grading, and possible catchment and retention of surface runoff by a drainage canal leading to a small retention basin on the site. A closing plan with drawings to accomplish the report's recommendations was filed with Respondent on November 1, 1977. (Petitioner's Exhibit 1, Respondent's Exhibits 6, 7, 14-17) Respondent's staff reviewed the Airan report and closing plan and was of the opinion that the study did not prove the basic premise that six inches of cover over the dump area was adequate. Thereafter, on December 4, 1977, Respondent issued a Final Consent Order for Dump Closing," Order No. 91, which ostensibly permitted the Petitioner time to undertake a soil and vegetation effectiveness study conditioned upon its agreement to implement and adhere to a final closing and cover plan as determined by the Department upon its review of the results of the study. This order obviously had been framed prior to the submission of the Airan report since that report was the "soil and vegetation effectiveness study" referred to in the consent order which was to be submitted not later than October 5, 1977. The order also provided that Respondent's determination of a final closing and cover plan would be made no later than December 1, 1977 and that the final closing would be accomplished no later than March 1, 1978. Again, the terms of the Consent Order provided that the Petitioner waived any right to a hearing or administrative or judicial review of its terms. Respondent's review and determination of Petitioner's aforesaid study was reflected in a letter to Petitioner from its subdistrict manager, Warren G. Strahm, dated January 3, 1978. It stated that Petitioner's study did not provide evidence that six inches of final cover would minimize and control potential water pollution from vertical percolation of surface water, but that Petitioner's own report showed that thirty-two million gallons more of percolation would result from a six inch as opposed to a two foot final cover. The letter therefore directed Petitioner to implement and adhere to a final closing and cover plan that included a final cover of no less than two feet of compacted earth, grading and sloping of the area, seeding or planting the site with grass or suitable cover vegetation, monitoring of ground water for leachate , and compliance with all other requirements of Rule 17-7.07, F.A.C., by March 1, 1978. Petitioner thereafter filed suit against Respondent in the First District Court of Appeal, Case No. 11-447. The suit was dismissed on May 19, 1978, by joint stipulation of the parties wherein it was agreed that Petitioner would seek a Section 120.57, F.S., hearing. On May 25, 1978, Petitioner filed such a petition with Respondent seeking to have that agency declare Petitioner's final cover and closing plan requiring six inches of final cover to be valid, and that final cover only be required on those portions of the Surfside Dump which were actually used on or after October 1, 1974. (Petitioner's Exhibit 2, Respondent's Exhibits 8, 18, 19) The Surfside Dump has been closed to the receipt of solid waste since March 1977. Although some clandestine dumping of waste has occurred since that time, it has mostly been confined to an area outside of the fenced portion of the site. There are presently relatively small areas of exposed waste in about fifty per cent of the landfill area. Some waste may be seen at the ground level in vegetated areas. A certain amount of ponding occurs in areas of both sparse and dense vegetation. There is a heavy vegetative growth over approximately 90 to 95 per cent of the dump site, consisting primarily of torpedo grass, para grass, guineagrass, common rag weed, caster bean, and sedge. Torpedo grass is a principal species and is abundant in about two thirds of the vegetated area. (Testimony of Quaas, Conn, Hudson, Stotts, Hussin, Gatewood, Busey, Airan, Petitioner's Exhibits 1, 4, 5, Respondent's Exhibits 10-12) Ground water or infiltrating surface water moving through solid waste can produce leachate, a solution containing dissolved and finely suspended solid matter and microbial waste products. Leachate may leave a landfill at the ground surface as a spring or percolate through the soil and rock that underlie and surround the waste. However, since the solid waste is of variable composition, it is not possible to accurately predict contaminant quantities. In completed fills, the amount of leachate can be expected to decrease with time. Leachate percolating through soils underlying and surrounding the solid waste is subject to purification of the contaminants in a variety of ways, but is diluted very little in ground water. Although leachate from a landfill can contaminate ground water, it is necessary to determine the quality of ground water and the aquifer's flow rate and direction to assess its results. Grading of the landfill is a means of diminishing surface infiltration by promoting surface water runoff. Vegetation of a landfill helps to stabilize cover material and thus reduce infiltration. It also reduces infiltration by intercepting and evapotranspiring some of the precipitation. The soil cover over a landfill also reduces percolation into the landfill depending upon its permeability. Clayey and silty loams are well suited for final cover, but are not readily available in South Florida. Sandy soils are primarily available in that area, but allow increased infiltration of precipitation. As a landfill ages, the earth cover will be subject to settlement and maintenance may be required to fill in depressions to avoid ponding of rain water. Such a program should provide for repairing cracks in the fill area due to uneven settlement and reseeding and fertilizing as necessary on the repaired areas, to prevent major erosion and surface water ponding. Leachate leaving the bottom of solid waste can be undesirable for drinking water, surface water, industrial water or irrigation water. However, it is most difficult to determine the character and amount of leachate from a particular area due to the many complex factors involved in such an assessment. The most common method for leachate control is to minimize the amount of water infiltrating the site. Ground water monitoring is accomplished by obtaining samples from wells placed at various locations on and near the landfill. It is generally agreed among the expert authorities that a minimum of two feet of compacted soil is required for the final cover when closing a landfill under normal circumstances. It has been the policy of Respondent to apply the sanitary landfill closing requirements of a two foot final cover, as specified in Rule 17- 7.05(3)(m), F.A.C., to the closing of dumps. (Testimony of Quaas, Conn, Hudson, Stotts, Hussin, Busey, Snider, Respondent's Exhibits 21-27) Expert testimony establishes that most of the vegetative cover on the Surfside Dump will be killed if a two foot cover is placed over it. The plants would re-colonize after such disturbance, but it takes almost two years for new plant growth to reach maturity. The present vegetation has been on the site for a number of years. Vegetation normally will grow at a better rate if its roots extend through the cover soil into the solid waste. However, certain gases created from waste material can be deleterious. A six inch final cover over vegetation would permit certain species to survive well, including torpedo grass, which is abundant on the site. In bare areas, it is best to sprig torpedo grass which provides relatively rapid growth, or to plant bahia grass. (Testimony of Hudson, Gatewood, Busey, Petitioner's Exhibit 1) The landfill site consists of an undulating terrain with surface drainage going in different directions from high to low level areas, but the overall drainage pattern is in a northerly direction. Two low-lying areas in the center and eastern portions of the landfill are subject to ponding after rainfall. These areas need to be filled, graded and planted in order to provide an overall northward direction of flow, together with grading and sloping on the eastern and southern boundaries of the area. Petitioner proposes to install subsurface drainage pipes, if found necessary, to promote horizontal movement of surface water and to provide catchment and retention of surface runoff diverted from the landfill area. This may include a shallow drainage canal along the northern boundary leading to a small retention basin in the northwest corner. Although these proposals were included in Petitioner's final closing plan submitted to Respondent, they were not considered by the latter's staff in evaluating requirements for the dump closing. Some profile corrections of the site were accomplished during the past year which eliminated ponding in the southwest corner of the landfill and improved drainage in the western portion. When further profile corrections are made to remove the remaining low spots, it is estimated that surface and subsurface runoff would increase and result in less leachate reaching the ground water table. (Testimony of Hudson, Airan, Petitioner's Exhibits 1, 4) Field and laboratory tests performed to determine the permeability of the soils on the landfill were performed by Petitioner at representative sites and by surface and subsurface soil samples. These tests showed that the infiltration rate at unvegetated locations was lower than that of adjacent vegetated areas, but this was attributed to the fact that in unvegetated areas, the soil is heavily compacted, very rocky, or no fill material is present. When infiltration was measured directly on waste material, it was found to be lower than that for surface soil. Mathematical calculations as a result of the tests showed that a maximum of 32 million gallons more would percolate annually through a six inch soil cover than a two foot cover. However, these calculations did not take into consideration the amount of surface and subsurface runoff. Petitioner's experts estimate that at least half of the percolation would be dissipated in that manner, leaving approximately 16 million gallons annually that would penetrate through the solid waste to the ground water. In considering this fact and the amount of water flowing laterally through the waste material, Petitioner concludes that only approximately one per cent of the total water flowing through the average ten foot waste layer under the water table would consist of vertical percolation. (Testimony of Airan, Petitioner's Exhibits 1, 4, 6-8, 10-13, Respondent's Exhibit 31-33) The Surfside Dump overlies the Biscayne aquifer. The Snake Creek Canal at the southern boundary of the dump site flows into Biscayne Bay some miles distant. There is a well field approximately one mile south of the dump at Carol City. Upstream of the Snake Creek Canal to the west is the North Dade County Landfill which is still in use. Snake Creek Canal is approximately fifteen feet wide and the bottom of the canal is approximately fifteen feet below original ground level. It is approximately thirty feet below the top of the landfill surface. Ground water flows generally in a southeasternly direction through the landfill. Approximately ten per cent of the ground water flows through the solid waste and the remaining 90 per cent bypasses and goes around the perimeter of the landfill. In May, 1977, a water quality monitoring program was undertaken by Petitioner that utilized nine sampling wells in three clusters of three each located in the northwest corner, center, and southeast corner of the landfill. In each cluster, one well was drilled to about five feet below the solid waste layer, the second ten feet below that point, and the third was ten feet above the waste layer. Water samples were taken in 1977 and in 1978. Tests of the samples showed that water quality generally improved with the depth of the well, and that the center group of wells had the highest level of contaminants because they were drilled in the middle of solid waste layers. In a number of instances, the pollutant levels for various substances were in excess of state standards. One well in the center of the landfill was dry during the rainy season which could indicate that the center of the landfill is less permeable than the outer layers and that a certain amount of water had been subject to subsurface runoff. It is conceded by both parties that the location and method of sampling wells does not provide sufficient definitive information concerning water quality in the area and that further monitoring needs to be undertaken in the future. Testing of Snake Creek Canal from points upstream and downstream of the Surfside Dump show that the surface water quality is most affected by contaminants from upstream. The North Dade County Landfill west of the Surfside Dump is undoubtedly a major influence on the quality of Snake Creek Canal water prior to reaching the Surfside Dump area. Leachate has not been found in canal water samples even though it is sufficiently deep to intercept the same if present. However, it is conceivable that any leachate plume could extend below the bottom of the canal. (Testimony of Stotts, Hussin, Snider, Airan, Patton, Petitioner's Exhibits 1, 4, 9, 12, Respondent's Exhibits 29 a-f) Based on the foregoing Findings of Fact, it is further found: The Surfside Dump presently is contributing to contamination of the ground water table in an unknown amount and is a potential source of pollution to the Snake Creek Canal and Biscayne Bay; The amount of pollution caused by leachate can be reduced through the implementation of corrective measures for surface drainage, including the filling of low lying areas, and grading and sloping to permit maximum surface water runoff. Additionally, infiltration of water into the landfill will be reduced by preserving the existing vegetation thereon which is an important factor in stabilizing surface cover and reducing percolation through evapotransportation most of the present vegetation will not survive if a two foot cover of soil is placed over it, and reestablishment of vegetation to its present state will take approximately two years. A surface cover of six inches over the vegetation would permit survival of most existing vegetation.
Recommendation That Respondent issue a final order requiring Petitioner to comply with the requirements set forth in paragraph 6 of the foregoing Conclusions of Law with regard to closing the Surfside Dump. DONE and ENTERED this 11th day of January, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Silvia M. Alderman, Esquire Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Joseph C. Jacobs, Esquire Melissa L. Allaman, Esquire Ervin, Varn, Jacobs, Odom and Kitchen Post Office Box 1170 Tallahassee, Florida 32302 Stephen Cypen, Esquire 825 Arthur Godfrey Road Miami Beach, Florida ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION TOWN OF SURFSIDE, Petitioner, vs. CASE NO. 78-1021 STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
The Issue The issue is whether CF Industries, Inc. (CF), has provided reasonable assurance that its proposed mining and reclamation of the South Pasture Extension (SPE) mine in Hardee County can be conducted in a manner that complies with applicable statutes and rules so that an Environmental Resource Permit (ERP), SPE conceptual reclamation plan (CRP), South Pasture Wetland Resource Permit (WRP) Modification, and South Pasture Conceptual Reclamation Plan Modification should be issued by the Department of Environmental Protection (Department).
Findings Of Fact The Parties CF is a Delaware corporation authorized to do business in the State of Florida and is the applicant in these proceedings. CF has applied for permits to conduct phosphate mining, reclamation, and associated activities on property in Hardee County known as the South Pasture Extension tract. These activities are referred to as the "Project," and the South Pasture Extension tract property is referred to as the "Project site." The Department is a state agency with jurisdiction over ERP permitting under Part IV, chapter 373, for phosphate mining activities, and jurisdiction over phosphate mining reclamation under Part II, chapter 378. Pursuant to that authority, the Department reviewed the ERP, CRP, WRP Modification, and CRP Modification applications for the Project. Petitioner is a Florida corporation in good standing, doing business in the State of Florida. Petitioner owns approximately 875 acres of land east of County Road 663 and immediately south of and adjacent to the Project site, which it leases to two affiliated companies, Florida Institute of Neurological Rehabilitation, Inc. (FINR I, Inc.) and FINR III, LLC. FINR I, Inc., operates the Florida Institute of Neurological Rehabilitation, which is a post-acute, state- licensed inpatient rehabilitation facility accredited by the Commission on Accreditation of Rehabilitation Facilities. It specializes in the treatment of children and adults who have sustained brain injury or some other form of neurologic trauma. The facility currently consists of 238 beds offering three levels of care and has approximately 135 to 140 inpatient clients, of which 115 reside on the property. The property has been used as a neurological rehabilitation center since 1986. Among other things, patients participate in organized and individual recreational activities on the property, including fishing, nature walks, baseball, and basketball games. Outdoor activities are critical to patient care, especially those with frontal lobe damage. The facility is only accessible by Vandolah Road (from the south) and that roadway serves as its only evacuation route. If the Project were to cause flooding on its property, as Petitioner alleges, it could reasonably be expected to prevent Petitioner from leasing its land to the related companies because the facility's employees or outside medical personnel could not enter the facility or evacuate the patients; it could interfere with the generators or electrical components required for patient care; it could deny the patients use of outdoor areas; and it could impede FINR I, Inc.'s ability to develop and expand facilities on the undeveloped part of the property. General Background Phosphorus is an essential element for plant and animal nutrition and is one of the primary nutrients necessary for plant growth. Phosphate rock is one, if not the only, known significant source of phosphorus, and there are no synthetic substitutes. Continued mining of phosphate rock is therefore critical to the agriculture industry as well as to the general population, both in the United States and globally. See § 378.202(1), Fla. Stat.("[t]he extraction of phosphate is important to the continued economic well-being of the state and to the needs of society"). CF has been mining in northwest Hardee County for decades. CF first began mining for phosphate in 1978 at what was then known as the North Pasture mine. Mining operations at the North Pasture mine concluded in the mid 1990s, and the lands associated with that mine have been completely reclaimed. Pursuant to local, state, and federal permits, CF relocated its beneficiation plant (which separates the phosphate ore matrix into phosphate rock, waste clay, and sand) to its present location south of State Road 62 in 1993, and began operation of its South Pasture mine in 1995. The South Pasture mine encompasses about 15,390 acres. After the startup of the South Pasture mine, CF acquired three additional land parcels totaling approximately 7,512.8 acres with mineable reserves contiguous to and immediately south of the South Pasture mine. These parcels are collectively referred to as the South Pasture Extension tract or the Project site. The Project site is bisected by County Road 663, which runs north and south through the Project site, generally in a southeasterly direction. Immediately to the west is Mosaic Fertilizer, LLC's (Mosaic's) permitted Ona Fort Green Extension and to the south is Mosaic's Ona mine, for which applications for mining approvals are currently pending regulatory approval. CF currently extracts phosphate rock at its South Pasture mine at a rate of 3.6 million tons per year. If the applications are approved, the Project will extend the life of the current South Pasture mine and beneficiation plant by ten years, permitting mining to continue at this same average rate through 2035. CF has an excellent record of compliance with respect to permits issued under chapters 373 and 378. Petitioner has raised no enforcement or compliance issues relative to CF's operation of its mining activities. In 1986, New Medico, Petitioner's predecessor in interest, established the neurological rehabilitation center on a 298-acre campus at the center of Petitioner's property and began accepting patients that same year. Petitioner actually acquired the Hardee County property in 1996, after mining activities began on the South Pasture mine. CF and Petitioner share a common boundary on three sides. The historic headwaters of Troublesome Creek are located within the Project site and along this common boundary, as well as within Petitioner's property, and they have been heavily ditched and degraded by agricultural activities. Troublesome Creek itself (as opposed to its headwaters) begins on the southeastern portion of the Project site, east of Petitioner's property, and has been reduced to a narrow, fairly incised conveyance flowing intermittently south-southeast to the Peace River. Since 1995, when CF began mining operations at its South Pasture mine, and until the present time when Petitioner filed its Petition challenging CF's Project, the parties' respective operations have co-existed and are currently approximately a half mile apart. Project Logistics Over the last five years CF has relied upon a team of experts from several different consulting firms and disciplines to assist it with preparing and supporting its application. CF will integrate materials handling on both the existing South Pasture mine and the Project site. Specifically, mining and reclamation operations at the Project site will employ the same methods currently approved by the Department for use at the South Pasture mine, and will utilize the existing operational facilities and workforce. The existing beneficiation plant at the South Pasture mine will separate the phosphate ore matrix mined at the Project site into phosphate rock, sand, and clay. Waste clays from the Project will be disposed of within existing clay settling areas (CSAs) at the South Pasture mine and new CSAs proposed for the Project site. The Project's mine water recirculation system will also be integrated with the South Pasture mine's recirculation system. As it has done at the South Pasture mine, which is located only one-half mile north of Petitioner's property, CF must install a perimeter ditch and berm system (which includes a recharge ditch system) along the Project site's boundaries prior to any clearing to contain Project water within the CF site and to protect adjacent properties during mining operations. The ditch and berm system is installed approximately six months to one year prior to the extraction of material within a particular mine block. Pursuant to Specific Condition 14 of the ERP, the recharge ditch system, which serves to provide groundwater recharge to preserved and off-site wetlands and surface waters during mining to avoid potential adverse impacts, must be constructed before mining activities can occur within 1,800 feet of any preserve or property boundary. The recharge ditch systems in each mine block adjacent to such boundaries will be designed based upon additional site-specific hydrogeologic testing and analysis and installed prior to mining after the Department has approved the final design. Specific Condition 14 also requires development and implementation of an Environmental Management Plan consistent with the requirements of that condition and with Appendix 14 of the ERP at least four years prior to mining of the Project site. Pursuant to this condition, CF must also conduct detailed baseline monitoring for at least four years prior to mining and conduct continuous during-mining monitoring, visual inspections, water table and stream flow analysis, and if necessary, implement hydrologic mitigative or remedial measures, to ensure that the recharge systems function as intended to protect unmined wetlands and other surface waters from adverse impacts by mining operations. These activities must continue until the area within 1,800 feet of the preserve or property boundary is backfilled and CF has documented that subsurface flows have achieved conditions hydrologically equivalent to those described in the Integrated Modeling Report (IMR) prepared for the Project. CF's mine plan indicates the sequence of mining on the Project site. Preparatory mining activities are scheduled to begin in 2017, with actual mining scheduled to begin in 2019, but are not scheduled to begin adjacent to Petitioner's property until 2027, progressing along CF's shared property boundary with Petitioner in a counterclockwise fashion, and west of County Road 663 through 2031. Piezometer wells and rainfall gauges must be installed along all preserves and property boundaries at least four years prior to initiating mining of the Project site, allowing for collection of an ample amount of baseline reference data before mining begins adjacent to Petitioner's property. As mining progresses within each mine block, backfilling with sand tailings and initial revegetation will follow mining almost immediately (three months) after mining, including in the vicinity of Petitioner's property. As each mine block is backfilled, within approximately three to five years after mining, the entire area will be completely backfilled, contoured, and revegetated. Within the same approximate timeframe, once the entire area is stabilized and following one year of water quality monitoring, the ditch and berm system will be dismantled and the area reconnected to its watershed. CF has sufficient water available from multiple water inputs, including very clean water from its Aquifer Recharge and Recovery Project (ARRP) on the South Pasture mine to support the proposed mining and reclamation activities on the Project site. CF will also construct a reroute ditch adjacent to Petitioner's property. The purpose of the reroute ditch is to reroute existing surface water flow in the Troublesome Creek headwater ditches off of Petitioner's property, around active mining operations, and then into Troublesome Creek as it exits the Project site to the southeast. To specifically address Petitioner's concerns regarding flooding, CF submitted conceptual designs for a reroute ditch to the Department prior to final hearing in this matter, and the Department modified its ERP accordingly. Like the recharge system, the final design of the reroute must be based on an additional site-specific assessment conducted pursuant to the ERP, prior to actually severing flow. CF's South Pasture mine has two permitted National Pollutant Discharge Elimination System (NPDES) outfalls located on Shirttail Branch and Doe Branch, both of which flow into Payne Creek, which is a tributary to the Peace River. While these existing NPDES outfalls will continue to meet all of CF's discharge needs for Project mining operations due to integration of the mine recirculation system, CF may obtain additional outfalls on the Project site to provide flexibility to supplement stream flows during mining in preserved and off-site streams. One such potential discharge point was identified on the northern boundary at Petitioner's property, as "S-1." Petitioner's Allegations Conflicting testimony was presented by the parties on the issues raised by Petitioner. These conflicts have been resolved in Respondents' favor, who submitted the more credible and persuasive evidence. Where a specific allegation is not addressed in this Recommended Order, it has been considered and found to be without merit. Petitioner alleges, on the one hand, that the Project will either cause flooding on its property so as to adversely impact its and its lessees' use and enjoyment of the property, and, on the other, will cause dewatering of its property so as to adversely affect its wetlands and other water resources. While the undersigned did grant CF's Motion to Strike, Petitioner was permitted to pursue its water resource and environmental impact issues and expressed its concerns regarding the Project's impact on Petitioner's property and development potential as well as on the health, safety, and welfare of residents or inhabitants of Petitioner's property. These concerns were addressed by Steve Freeley, FINR II, Inc.'s former director of marketing and now a Vice President, and Dr. Jorge Villalba, FINR I, Inc.'s medical director. Mr. Freeley, a fact witness, summarized Petitioner's concerns, as he understood them, to be the Project's potential for flooding, dewatering, and well contamination on Petitioner's property, particularly how these events might affect Petitioner's pocketbook and the future development potential of Petitioner's property. However, Mr. Freeley admitted that he had no knowledge of the Project application or supporting materials, had never been to the South Pasture mine, and had no familiarity with phosphate mining. Dr. Villalba testified primarily on behalf of FINR I, Inc., patients at the rehabilitation facility, in particular his concerns regarding his patients' specific sensitivity to environmental stimuli. Dr. Villalba has no legal affiliation or association with Petitioner, being solely an employee of, and the medical director for, FINR I, Inc. Dr. Villalba also testified regarding the need to internally relocate some patients due to flooding caused by hurricanes in 2004. More specifically, Dr. Villalba testified that in 2004 residential cabins on-site experienced water levels rising up to the steps of the elevated residential facilities. Like Mr. Freeley, he admitted he had no knowledge of the application materials, phosphate mining, CF's South Pasture mine operations, or the materials submitted in support of the proposed agency action. For all of the following reasons, the adverse environmental and water resource-related concerns of Petitioner are determined to be without merit and are therefore not credited. Analysis of Hydrology CF and the Department thoroughly investigated the Project's potential for causing adverse flooding and dewatering impacts on adjacent properties. Event-based stormwater runoff modeling provided reasonable assurance that peak discharge rates and outflow volumes at exit points from the Project site under post- reclamation conditions would not cause adverse offsite flood impacts. The results of CF's flood modeling are summarized in a flood modeling report (FMR). The FMR demonstrated that the proposed post-reclamation land use, topography, and soil distributions will not result in any adverse changes in the peak discharge comparison to pre-mining conditions for flood flows; peak flood values will be maintained or improved by the reclamation design; and post-reclamation peak flood values along Petitioner's shared property boundary with CF will be lower than pre-mining conditions. Three standard rainfall events were evaluated: (a) the mean annual 2.33-year, 24-hour event, (b) the 25-year, 24-hour event, and (c) the 100-year, 24-hour event. These storm events are part of a standard suite of engineering design storms that the Department commonly relies upon to assess pre-mining versus post-reclamation flooding. CF utilized a one-dimensional surface water computer model, MIKE 11, to prepare the flood modeling report. MIKE 11 uses the Natural Resources Conservation Service's (formerly the United States Soil Conservation Service's) TR-55 based approach and applies a 1-D hydraulics component that represents Florida landscape conditions well. This modeling, and the resultant FMR, which is a part of the application, were not contested. It demonstrated that the proposed post-reclamation condition will not result in any adverse flooding. In fact, local flood hazards will likely be reduced due to the lowering of peak flood values. CF also developed an integrated surface and groundwater model for the Project. Integrated modeling assesses long-term hydrologic conditions to ensure that the Project will result in hydropatterns that restore and sustain reclaimed wetlands and waterbodies on the Project site. The MIKE SHE model was used to perform the hydrologic simulations; the modeling results are contained in CF's IMR, as part of the application. It was also used to establish the normal seasonal high and seasonal low ranges for wetlands and surface waters that were used in other portions of the application, such as the Recharge Modeling Report (RMR). There was no objection to the use of this model or its results. The IMR indicates that the proposed reclamation will restore on-site wetland functions, promote the maturation of on-site wetlands, and result in an overall water balance that maintains or improves regional hydrology. Off-site stream flows to Troublesome Creek will be enhanced, which will improve that system's capacity to support aquatic fauna. During-Mining Hydrologic Analysis In addition to performing pre-mining and post- reclamation condition hydrologic analyses, CF and the Department evaluated the Project's potential for causing adverse flooding and dewatering impacts on adjacent properties during mining. The existence of several factors inherent to the mining process, discussed below, typically makes during-mining flood event modeling unnecessary to provide reasonable assurances. See Lee Cnty. v. Mosaic Fertilizer, LLC, Case No. 08-3886, 2008 Fla. ENV LEXIS 171 (Fla. DOAH Dec. 18, 2008), adopted, OGC Case No. 08- 1852, 2009 Fla. ENV LEXIS 14 (Fla. DEP Jan. 30, 2009). The application contains during-mining water balance analyses that specifically evaluated the biological integrity of on-site and off-site preserved areas, streams, and wetlands during mining and after reclamation. CF prepared a mine and production plan (MPP) describing general mine planning and scheduling, as well as its proposed integration with the South Pasture mine, that contained an operational during-mining water balance showing recirculation system inputs and outflows. The primary sources of water input into the mine recirculation system for the Project will continue to be direct rainfall capture, groundwater from existing permitted wells, water content of the mined matrix and overburden, and reclaimed water from the City of Wauchula. The primary sources of water consumption will be evapotranspiration and net waste clay entrainment; CF recycles and reuses 95 percent of its water. As described in the MPP, the primary sources of water discharge will be through its existing two (and possibly additional) permitted NPDES outfalls. There will be no substantial change in the during- mining water balance as a result of the extension of mining into the Project site. Moreover, the application, past practices and experience, and evidence presented at hearing all indicate that CF has more than sufficient amount of water available to conduct the Project while simultaneously maintaining or improving the biological integrity of downstream systems. CF has the demonstrated ability to manage large amounts of water within its mine recirculation system and store or discharge water as required to maintain downstream flows or reduce flooding potential. During mining, CF can either discharge stormwater treated to meet state water quality standards, or store it in its recirculation system, depending on downstream conditions. Thus, even without a reroute ditch, the risk of adverse flooding during mining is minimal. CF has never caused any flooding of neighboring property in over 30 years of mining. As noted earlier, upon construction of the perimeter ditch and berm system along its shared property boundary with Petitioner, CF will reroute existing water flow around active mining operations and the berm system to reconnect flow with Troublesome Creek. CF's expert witness testified that, from an engineering perspective, a reroute ditch is not difficult to design or construct, and that CF has successfully constructed similar reroutes in the past and without causing flooding. Nevertheless, in light of Petitioner's concerns, CF directed its consultants to model the potential impacts from a reroute ditch to assist in sizing the reroute ditch and associated structures. The design objective was to ensure that no off-site increases in peak flows or stages would occur during mining as compared to existing conditions as a result of the Project during high rainfall events. CF and Petitioner's consultants used the Interconnected Pond Routing (ICPR) model to evaluate the reroute ditch. CF analyzed the 25-year, 24-hour and the 100-year, 24-hour storm events. The model indicated that in many areas, where the presence or absence of a reroute ditch would not make a significant difference, water levels would remain unchanged, and that in some areas closest to the proposed reroute ditch, potential flood levels would actually be decreased by two-tenths of a foot. This would actually reduce the likelihood of localized flooding during significant storms over existing conditions, which has posed a concern to Dr. Villalba for his patients' safety during prior hurricane events. The modeling results were summarized in a Troublesome Creek Reroute Ditch Modeling and Conceptual Design Report (RDMR). Dr. John Kiefer, the co-author of the RDMR, as well as Dr. Owete, a Department expert, opined that the Project, including implementation of the proposed reroute ditch, would not cause adverse flooding or water quantity impacts on Petitioner's property during mining. Dr. Kiefer subsequently identified and corrected some minor errors in the RDMR. These changes had no effect on his ultimate opinion or this finding. According to Dr. Owete, the modeling was not necessary to provide the requisite reasonable assurances. In fact, the reroute ditch design drawings themselves were not requested by the Department to provide reasonable assurances, but were offered by CF as additional assurances in light of the concerns raised by Petitioner during these proceedings. This testimony was echoed by Dr. Kiefer, who testified regarding the various intrinsic protections against during-mining flooding that are inherent to the Project. Further, the record establishes that the design and the model are very conservative. The 100-year event, for which the reroute ditch was designed, has only a one percent likelihood of occurring in any given year within a 100-year period. The RDMR recommends that additional modeling be conducted immediately prior to implementation to confirm the design. The ERP specifically requires that the RDMR be implemented. This is similar to conditions throughout the ERP that require additional data gathering modeling or other analysis and revised designs based on this additional analysis. The ERP can provide for post-permit activities to be performed as part of reasonable assurances. See Fla. Admin. Code R. 62- 4.070(3). Petitioner's expert, Mr. Robert Burleson, opined that the Project will cause flooding of Petitioner's property during mining due to the construction of the perimeter berm. However, Mr. Burleson used a starting water elevation on Petitioner's property to run his model that was already commensurate with a 100-year flood elevation and then added a 100-year event to that elevation. Mr. Burleson's model also assumed that no reroute ditch would be constructed, and additionally assumed artificially high surface water conditions caused by the recharge system which, conversely, Petitioner's expert, Mr. Davis, opined would not prevent dewatering. Therefore, his opinion on flooding is not credited. Mr. Burleson also opined that flooding would nonetheless occur because of the construction of the perimeter berm across Lettis Creek headwater wetlands, notwithstanding the fact that there is no "stream" at this location, the landscape is relatively flat, and County Road 663 and the railroad line would lie between Petitioner's property and the perimeter berm. However, Mr. Burleson's modeling assumed that County-maintained culverts between the properties would be blocked during mining. Even under this assumed condition, his modeling showed only a slight increase in stage durations during significant 25-year and 100-year events. However, CF has committed to maintain flow from Petitioner's property onto the Project site at Lettis Creek through existing culverts under County Road 663. Mr. Burleson also testified that in his view flooding occurs "if there's an increase in water levels above what has historically or naturally [occurred] for a given condition." Tr. 522. However, Mr. Burleson did not know whether the FINR property had ever been inundated in the way inundation was depicted in the figures he provided and did not know whether the inundation in the figures he provided could be a natural condition for the property. Thus, Mr. Burleson could not testify, whether historically or naturally, the amount of water depicted on his figures would occur. It was established that the historic headwaters in this area have been heavily ditched and altered from their historic or natural condition. CF assessed the potential that the reroute ditch could result in dewatering during non-flood events. To address this concern, CF designed the reroute ditch with a bottom elevation that would match the bottom elevation of the existing ditch, meaning the water table will intersect the reroute ditch in the same manner it currently intersects the Troublesome Creek ditch. Adjacent to Wetland 10E-40 in the southeast corner between Petitioner's property and the Project property, however, the reroute ditch received special design consideration because the reroute ditch bottom will be below the bottom of the wetland at that location. There, the reroute ditch will be armored, an overland weir will regulate flow, and an impermeable geotextile liner will be installed. Several intrinsic factors, relating to both the reroute ditch design and the overall Project design, provide further assurances that adverse flooding will not occur on Petitioner's property during mining. Once CF constructs the perimeter ditch and berm system, the area of the drainage basin contributing flow to Petitioner's property will be reduced by approximately one-half, resulting in significantly less water flowing onto Petitioner's property during flood events because the ditch and berm system will divert stormwater that normally reports to Troublesome Creek into CF's recirculation system. The conveyance capacity of the reroute ditch will be equivalent to or greater than that of the existing ditch that it would replace. The reroute ditch will be installed in concert with the ditch and berm system, which as noted above will reduce peak flood flows in Troublesome Creek, meaning a lower tailwater condition can be expected in Troublesome Creek downstream of its confluence with the reroute ditch. CF thoroughly assessed the ability of the recharge ditch to maintain recharge to wetlands and adjacent properties during active mining of the Project. Specifically, CF evaluated the seepage characteristics of the areas scheduled to be mined and provided site-specific recommendations regarding recharge system design in variable subsurface conditions. CF evaluated the efficacy of treatment options that might be necessary to incorporate in the recharge ditch design in certain subsurface conditions to prevent potential adverse impacts. The goal of the recharge ditch design was to maintain the water table during mining operations, within the normal range of seasonal high and seasonal low water table elevations along preserve and property boundaries, including Petitioner's property. The normal seasonal range used to develop the RMR was obtained from the IMR analysis. In order to appropriately evaluate subsurface permeabilities at the Project site, CF's consultants first engaged in a rigorous geotechnical exploration program: they reviewed available prospect borings and design reports; they developed subsurface profiles along wetland and property boundaries within the study areas based on prospect boring data; they completed four Standard Penetration Test borings at locations selected based on the subsurface profiles; they installed a deep, intermediate, and shallow piezometer at each of the borehole locations; and they completed in-situ hydraulic conductivity tests in each of them. This information resulted in a detailed subsurface profile that ran along the entire border of the mining areas and identified a range of subsurface conditions site-wide, with both low and high permeability values, consistent with regional data and Petitioner's findings. Next, CF's consultant developed 14 design sections, including cross sections at each of the locations specifically requested by the Department, two adjacent to Petitioner's property, and conducted seepage analyses for each. For the two design sections nearest to Petitioner's property, no continuous layer of highly-permeable limestone or other high permeability strata were encountered that were reasonably likely to affect performance of the recharge ditch, and thus no particular "add on" hydrologic mitigative measures to the recharge ditch appear reasonably likely to be needed. Nonetheless, the efficacy of those additional measures in higher permeability soils was fully evaluated. Results of the seepage analyses on the 14 design cross sections are summarized in the RMR. The RMR concludes that, in most mine areas, sufficient recharge will be provided to preserved wetlands and adjacent properties during mining using a recharge ditch designed as proposed in the RMR. Nine of the 14 cross sections did not have a continuous highly permeable limestone layer, including the two near Petitioner's property; and a recharge ditch with the water level maintained at ground level was sufficient to maintain an adequate groundwater level in off-site and preserved wetlands at these nine cross sections, to the center of the wetland. Only five of the 14 design cross sections contained a continuous, permeable limestone layer within the matrix layer. For areas where such high permeability layers do exist, additional hydrologic mitigative measures were recommended in addition to the recharge ditch, such as recharge wells, permeable trenches, localized grouting, and soil-bentonite cutoff walls, in order to maintain groundwater levels. In the event a permeable limestone layer is encountered within the matrix layer, the RMR concludes that the utilization of recharge wells, sand trenches, or other treatment options will be effective in maintaining the normal range of seasonal groundwater levels. Pursuant to the RMR recommendations, decisions regarding which specific mitigative measure is appropriate to use to address a specific subsurface condition will be made based upon more detailed, site-specific data and design modifications determined through field investigations, to include additional test borings, piezometers, field measurements of hydraulic conductivities, and additional seepage analyses. These additional measures are required by the ERP conditions and the final design must be approved by the Department. While the RMR did not assume the existence of a reroute ditch, Mr. Beriswill, a professional engineer, subsequently evaluated the potential impact of a reroute ditch on the RMR's recommendations and conclusions. Based upon this subsequent evaluation, Mr. Beriswill concluded that no significant changes in the design of the recharge ditch were necessary to account for the ditch, although he and other consultants did agree that addition of an impermeable geotextile liner to a portion of the reroute ditch would reduce the potential for dewatering adjacent to Wetland 10E-40 and should be implemented. The RMR also evaluated the stability of the mine cut face seal embankment (construction of which is common in the industry) and provided recommendations to maintain adequate and stable slopes during mining activities. Based upon these analyses, CF's consultants recommended a one-foot (vertical) to five-foot (horizontal) (1:5) slope to ensure a 1.3 factor of safety for slope stability, which is within industry standards. Water Quality Impacts In addition to the above analyses, CF and the Department also thoroughly evaluated potential on-site and off- site water quality issues associated with the Project. As noted earlier, discharges will occur only through permitted NPDES outfalls. Additional water quality protection for adjacent undisturbed surface waters and wetlands will be provided by the perimeter ditch and berm systems and other proposed best management practices (BMPs), such as silt fences and stormwater collection systems. During mining and reclamation, these practices will preclude uncontrolled releases of water to adjacent unmined and downstream areas. There are also detailed requirements in the ERP for monitoring water quality during mining and reclamation activities. All of these measures will be effective in preventing violations of water quality standards, and will ensure that the water quality of preserved on-site systems will be protected during mining activities at the Project site. A Stormwater Pollution Prevention Plan (SPPP) was prepared to identify BMPs and controls for the Project during land preparation, mining, backfilling, and reclamation. The SPPP also incorporates by reference other documents already in place on the South Pasture mine pursuant to CF's NPDES permit for the South Pasture mine. Among these documents are a Best Management Practices/Pollution/Prevention (BMP3) Plan that generally describes BMPs for waste management, spill reporting and response, and other specific measures to prevent pollution, and a memorandum of agreement (MOA) between CF and the Department that describes general design and construction BMPs. The MOA has also been attached to the ERP. The BMP3 Plan, which is updated annually, must be maintained on-site during mining operations. Using these measures at the South Pasture mine, CF has never had any issues with stormwater discharges causing water quality violations. Petitioner failed to present any competent substantial evidence that the Project will cause adverse water quality impacts during mining. Its expert, Mr. Robert Burleson, opined only that certain requirements specified for generic stormwater permits associated with construction activities were missing from the SPPP. However, it is unclear whether he reviewed or considered the sufficiency of the MOA or BMP3 Plan, and these contain specific BMPs to be utilized for the Project's stormwater. Additionally, Mr. Burleson admitted that he had no familiarity with preparing SPPPs for industrial facilities with NPDES permits. Dr. Durbin, a CF expert, who has such experience and reviewed all of these materials as well as South Pasture mine water quality data, opined that implementation of these practices and the existence of the NPDES permit ensure that water quality of downstream systems will be protected during mining and that no adverse water quality impacts will occur. The application is therefore consistent with applicable ERP permitting requirements. The generic stormwater permit proffered by Petitioner does not apply, and is not available, to facilities like CF that are required to obtain individual NPDES permits that address stormwater discharges. See Fla. Admin. Code R. 62-620.100(2). Ecological Issues The level of detail and analysis provided by CF in its application to the Department for the ERP, CRP, and WRP and CRP Modifications is more than adequate. Indeed, CF provided substantially more baseline information in terms of existing site conditions, wetland conditions, and wildlife information than is provided in typical ERPs. CF expert witnesses Dr. Kiefer and Dr. Durbin both testified as to the local and regional ecological, hydrological, and wildlife benefits expected to result from the proposed reclamation. This testimony was not disputed. Pursuant to section 373.414(6)(b), wetlands reclamation activities for phosphate mining undertaken pursuant to chapter 378 are considered appropriate mitigation if they maintain or improve the water quality and the function of the biological systems present at the site prior to the commencement of mining activities. CF's reclamation achieves that mitigation goal. It provides for an acre-for-acre, type-for-type, and foot-for-foot restoration, as appropriate, of the wetlands and other surface waters proposed for impact on the Project site. The application indicates that the proposed reclamation will restore on-site wetland functions and promote the maturation of on-site wetlands. Specifically, CF is proposing to enhance 126 acres of wetlands and 57 acres of uplands, create approximately 1,711 acres of wetlands and other surface waters, and grant perpetual conservation easements to permanently preserve 1,095 acres of unmined (avoided) and 1,789 acres of reclaimed habitat, including wetlands, streams, and associated native upland habitat in the Brushy Creek, Lettis Creek, and Troublesome Creek corridors on the Project. In addition, CF will grant a perpetual conservation easement to permanently preserve an additional 915 acres of unmined wetland and native upland habitat associated with the Horse Creek and Payne Creek corridors in the South Pasture mine. Ultimately, the Project will represent a substantial improvement in the Troublesome Creek headwater system, which has been degraded by ditching. Based upon the uniform mitigation assessment method analysis, the proposed mitigation plan will more than offset proposed impacts, resulting in a net increase in wetland functions on the Project site. While mining activity is temporary, this "surplus" improvement will be permanent. CF considered the potential impacts to off-site wetlands from the Project both during mining and after reclamation, particularly those wetlands that straddle CF's shared property boundary with Petitioner. Wetlands on Petitioner's property are similar to nearby wetlands on the Project site, in that historically they have been impacted by agricultural activities, including ditching. None of Petitioner's experts provided testimony of adverse impacts to wetlands or surface waters that would be reasonably likely to occur as a result of the Project. In contrast, Dr. Durbin testified that the wetlands on Petitioner's property are degraded and dehydrated due to the prevalence of agricultural alterations and that a modicum of additional water might actually benefit them. The application indicates that the proposed reclamation will result in an overall water balance that is consistent and compatible with the region's surface and sub- surface hydrology, and the combined groundwater and surface water outflow volumes from the Project site will be similar to pre-mining conditions. As noted earlier, the proposed recharge ditch system will maintain off-site water table levels within the normal range of seasonal high and seasonal low values, which is the range of fluctuation the water table level currently experiences pursuant to the IMR. Therefore, no dewatering will occur that will have an adverse ecological effect on Petitioner's wetlands. Dr. Durbin and Dr. Kiefer opined that the improvement in ecological conditions post-reclamation on the Project site can reasonably be expected to improve the ecological condition of the immediately adjacent wetlands on Petitioner's property. Petitioner's expert, Mr. Davis, opined that CF failed to provide reasonable assurances that the Project would not cause dewatering of wetlands on Petitioner's property. He presented model results using those high permeabilities that purported to show that, at some distance proximate to the property boundary, some drawdown would occur with maximum predicted drawdown approximately 80 feet or less from the property boundary. However, Mr. Davis selected the high end of the range of the subsurface permeabilities estimated in the RMR and assumed they were present continuously along the property boundary. Although the highly permeable conditions are not continuously present along the boundary line of Petitioner's property, measures to address those conditions have been identified and recommended, should they occur. Moreover, Mr. Davis' modeling did not use the existing conditions established in the IMR as a baseline and did not evaluate any of the mitigative options recommended in the RMR for use if high permeability layers are encountered. Rather, his modeling looked at only two scenarios that were not recommended in the RMR in such cases, namely, the recharge ditch alone, and charging the recharge ditch five feet above ground surface. He admitted that the options recommended in the RMR for high permeability subsurface conditions were all widely-used options capable of being implemented. Mr. Davis' assertions regarding the potential for a half-foot of drawdown near the property line are based on a series of assumptions and conditions which are not supported by competent substantial evidence. Therefore, his testimony does not rebut the prima facie case of CF and the Department regarding reasonable assurances and is not credited. Mr. Palmer criticized the adequacy of the monitoring contained in Specific Condition 14. However, he admitted that monitoring of the proposed piezometers would detect any water table changes, and the ERP requires comparison against the baseline data as well as long-term rainfall records. He also acknowledged that he reviewed only a portion of the condition. Thus, Mr. Palmer's criticisms are not credited. CF's reclamation also consists of a Stream Restoration Plan (SRP). Implementation of the SRP will result in replacing lower-functioning streams and lotic systems, like the ditched headwaters of Troublesome Creek, with higher quality systems post-mining pursuant to state reclamation requirements. Dr. Kiefer opined that this is reasonably likely to result in both localized and regional improvements to Troublesome Creek by restoring its headwaters to a more natural condition. This evidence was not refuted. Petitioner provided no testimony regarding the ecological effect of the Project on Petitioner's wetlands and water resources. FINR witnesses Burleson, Davis, and Palmer claimed no expertise as ecologists. In fact, Mr. Davis admitted that he normally provides his modeling reports to others with expertise regarding whether a modeled water level drop could actually be expected to cause harm. This was not done here. There was no credible testimony that adverse environmental or water resource impacts would result to Petitioner's property from the Project. Materials CF has analyzed whether it will have sufficient materials available to it to accomplish the objectives within the CRP, and sufficient capacity in existing South Pasture mine and proposed Project site CSAs to dispose of waste clays generated by the phosphate matrix processing. For this purpose CF prepared a Life of Mine Backfill Plan (LOMBP). The LOMBP describes how on-site materials will be utilized by CF, during both mining and reclamation activities, over the life of the mine. Based upon CF's calculations as reflected in the LOMBP, information contained in the MPP, and testimony from CF's expert witness, CF will have sufficient materials to achieve its mining and reclamation objectives, and sufficient capacity to dispose of waste clays in existing CSAs located on the South Pasture mine and proposed CSAs on the Project site. CF will be able to accomplish the mining and reclamation as proposed. Petitioner's expert, Mr. Palmer, opined that CF had not provided reasonable assurances of sufficient overburden to create the overburden soil slopes on mine faces discussed in the RMR. For the following reasons, his testimony is not credited. He admitted no experience with mining, dragline booms, how draglines cast overburden, or how cast overburden slopes are created, and he mistakenly assumed CF was limited in the transport of overburden to a distance of 330 feet, a figure not supported by the record. Additionally, Mr. Palmer incorrectly assumed that CF would be mining to an average depth of 73.3 feet, when in fact as reflected in the MPP, CF will be mining to an average depth of 40.4 feet, which means the average overburden thickness will be 18.9 feet, far greater than the 11.5 feet he assumed in his calculations. On the other hand, CF witness Wuitschick testified that there would be sufficient overburden to create the overburden seals called for in the RMR. Mr. Blitch, a CF employee with extensive mining experience and familiarity with the Project, testified that transportation of overburden is not limited to 330 feet and confirmed that CF will have more than enough overburden to create the overburden slopes, which are needed only along preserve and property boundaries and the ability to move it where it is required. Rules Requirements With respect to the ERP criteria contained in section 373.413 and rule 40D-4.301, CF has demonstrated, by a preponderance of the evidence, reasonable assurances that the Project: Will not cause adverse water quantity impacts to receiving waters and adjacent lands. Will not cause adverse flooding to on-site or off-site property. Will not cause adverse impacts to existing surface water storage and conveyance capabilities. Will not adversely impact the value of functions provided to fish and wildlife, and listed species including aquatic and wetland dependent species, by wetlands, other surface waters and other water related resources. Will not adversely affect the quality of receiving waters such that the water quality standards will be violated. Will not cause adverse secondary impacts to the water resources. Will not adversely impact the maintenance of surface or ground water levels or surface water flows. Is capable, based on generally accepted engineering and scientific principles, of being effectively performed and of functioning as proposed. Will be conducted by an entity with financial, legal, and administrative capability of ensuring that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued. For the reasons expressed in Finding of Fact 64, a contention by Petitioner that the SPE mine application must be denied because CF failed to submit at hearing a separate document entitled "Construction Surface Water Management Plan" is rejected. This is because this requirement does not apply to facilities like CF that are required to obtain individual NPDES permits that address stormwater discharges. Assuming arguendo that it did apply, the Southwest Florida Water Management District Basis of Review for Environmental Resource Permit Applications (BOR) criteria are designed to be flexible, and other methods can be used to meet the rule objectives. Here, CF submitted numerous reports and studies which have been accepted as being the most persuasive on these issues, and collectively they show that reasonable assurances have been provided that all rule criteria have been satisfied. With respect to the additional public interest and other criteria contained in section 373.414 and rule 40D-4.302 for the protection of water resources and which are applicable to projects located "in, on, or over wetlands or other surface waters," CF has provided, by a preponderance of the evidence, reasonable assurances that the Project will: Not adversely affect the public health, safety, or welfare or the property of others. Not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Not adversely affect the flow of water. Not adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity. Be temporary in nature. Not adversely affect the current condition and relative value of functions being performed by areas affected by the Project. Not cause unacceptable cumulative impacts. Will maintain or improve the water quality and the function of the biological systems present at the Project site prior to the commencement of mining activities. The primary goal of the BOR is to meet District water resource objectives of ensuring that the permit will not authorize activities that are harmful to water resources or inconsistent with the public interest. As noted above, however, the criteria are designed to be flexible, and other methods of meeting those objectives will be considered. See BOR §§ 1.1 and 1.3. With respect to phosphate mining reclamation criteria contained in chapter 378 and rule 62C-16.0051, CF has provided, by a preponderance of the evidence, reasonable assurances that the Project will meet the reclamation criteria contained in the rule. The prima facie case provided by CF and the Department at hearing of CF's entitlement to the ERP for the Project was not successfully refuted, as discussed in the foregoing Findings of Fact. The prima facie case provided by CF and the Department at hearing of CF's entitlement to the CRP for the Project was unrefuted. No evidence concerning the reclamation criteria was presented by Petitioner. As set forth in the Order Granting the Motion to Strike and Motion in Limine issued on February 16, 2012, the Petition contained no factual allegations relative to the compliance with applicable regulatory requirements regarding, or potential for harm resulting from, the South Pasture Modifications (as opposed to the ERP or CRP for the Project). Therefore, the allegations relating to the South Pasture Modifications were stricken. The prima facie case provided by CF and the Department at hearing of CF's entitlement to the associated WRP and CRP Modifications for the South Pasture mine (South Pasture Modifications) was not refuted, and Petitioner made no proffer relative to the South Pasture Modifications prior to the close of the evidentiary proceedings. The ruling at hearing to receive in evidence the permit application and the Department's proposed agency action on these two items is reaffirmed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order approving the applications of CF Industries, Inc. DONE AND ENTERED this 30th day of April, 2012, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2012.
The Issue The issue in this case is whether the Department of Environmental Protection (DEP) should issue a permit to Out of Bounds, Inc. (Out of Bounds, or applicant), to construct, operate, and close a construction and demolition debris disposal facility (C&D facility) in Hernando County.
Findings Of Fact On September 8, 2008, Out of Bounds applied to DEP for a permit to construct, operate, and close an unlined C&D facility on 26 acres located at 29251 Wildlife Lane, Brooksville, Hernando County, Florida, to be known as the Croom C&D Debris Landfill and Recycling Facility. There were four requests by DEP for additional information, which was provided, and the application was complete on September 3, 2009. In 1994, a previous owner of the property was issued a permit to construct, operate, and close an unlined C&D facility on the property. That owner did not proceed with construction, and the permit expired in 1999. The Out of Bounds application was for a new permit, not for the renewal of an existing permit. Robert McCune owns property adjacent to the proposed C&D facility. He and his wife reside on the property, keep horses in stables on the property, and use the property for horseback riding business, which includes hosting public horseback riding events. Hernando SSK was formed by David Belcher and one or more others to continue the business being operated by Paige Cool when she died during this proceeding. The business is conducted on ten acres of property Cool owned approximately one mile west of the proposed C&D facility. Belcher is one of two co-personal representatives of Cool’s estate. Belcher and his wife hold a mortgage on the property. When the estate is finalized, the Belchers plan to assign their mortgage to Hernando SSK. It is not clear who will own the property after the estate is finalized, or how Hernando SSK will be authorized to continue the business on the property. Western pleasure and trail-riding horses are boarded on the Cool property, which is known as At Home Acres. The business also has access to 20 adjoining acres to the east, which are used for grazing. Access to the horseback riding trails in the Withlacoochee State Forest is conveniently located just across Wildlife Lane from the property, to the north. A manager resides in a double-wide trailer on the property, and another trailer and a barn to the east of it are leased out. There is a potable water well on the property, which is the source of drinking water for the manager and lessees. Well Setback In the application process, Out of Bounds disclosed two potable water wells within 500 feet of the proposed landfill disposal area. The application provided that those wells would be converted to non-potable use. Out of Bounds did not disclose the existence of a third potable water well, on property owned by Daniel Knox, which is within 500 feet of the proposed landfill disposal area. When the Knox well was brought to the attention of DEP, Out of Bounds admitted that the well was permitted for potable use but took the position that it was not for potable use because it was not in use, was not connected to a source of electricity, and appeared to be abandoned. Daniel Knox and his brother, Robert Knox, had the Knox well dug and permitted in 1979 in anticipation of using it as the source of potable water for a residence to be built on the property for their parents and sister. The Knoxes have not yet built a residence on the property, but it still is their intention to do so and to use the well as the source of potable water. Since its construction, the well had been maintained and operated periodically using a gasoline-powered generator so that it will be ready for use when needed. During the application process, Out of Bounds also did not disclose the existence of a fourth potable water well within 500 feet of the proposed landfill disposal area on property once owned by Larry Fannin and now owned by his daughter and son-in- law, Robert McCune. The McCune well was permitted and installed in mid-2005 while the sale of the land from Fannin to the McCunes was pending. The intended purpose of the well was to provide potable water for the use of the McCunes when they started to reside on the property. Despite this intent, and unbeknownst to the McCunes, Fannin had the well permitted as an irrigation well. In mid-2008, the McCunes began to reside on their property. At first, they resided in a mobile home. They ran pipes from the well to the mobile home to provide drinking water. Eventually, later in 2008, they began construction of a residence on the property and ran pipes from the well to the house to provide drinking water to the house. The well was being used for drinking water before the Out of Bounds application was complete. (They also use water from the well from time to time for irrigation purposes--i.e., when they host horseback-riding events on weekends, they truck water from the well to their horseback-riding arena to apply to the ground to control dust.) Groundwater flows from the disposal area of the proposed landfill to the west and southwest. The Knox and McCune wells are down-gradient of the groundwater flow from the proposed disposal area. Out of Bounds represented at the hearing that it would accept a permit condition that no C&D debris, but only clean debris, would be disposed within 500 feet of the Knox and McCune wells. See Fla. Admin. Code R. 62-701.200(15)-(16) and (24). However, there was no evidence of new designs, plans, or operations that would be used to meet such a permit condition. Liner and Leachate Collection Existing unlined C&D facilities in the Southwest District report various parameters that exceed groundwater quality standards and criteria. These include arsenic, benzene, iron, aluminum, nitrate, ammonia, vinyl chloride, methylene chloride, 3- and 4-methyl phenols, sulfate, and total dissolved solids (TDS). Arsenic and benzene are primary (health-based) groundwater quality standards. The others are secondary standards that relate to taste, odor, and aesthetics. The likely source of the reported arsenic violations in the Southwest District is wood treated with chromate copper arsenate (CCA). See Fla. Admin. Code R. 62-701.200(11). Out of Bounds proposes to not accept CCA-treated wood and to use a trained “spotter” to exclude CCA-treated wood from the landfill. This is an appropriate measure to prevent arsenic violations, and is now required for C&D facilities. See Fla. Admin. Code R. 62-701.730(7)(d), (8), and (20). It was not clear from the evidence whether the C&D facilities in the Southwest District with arsenic violations accepted CCA-treated wood. Even if they did, the operational plan proposed by Out of Bounds to exclude CCA-treated wood and to use a trained spotter is not a guarantee that no CCA-treated wood will enter the landfill. A C&D facility would not be expected to dispose of material that would result in benzene contamination. The reported benzene violations suggest that unauthorized material contaminated with benzene nonetheless makes its way into C&D facilities in the Southwest District. The evidence was not clear whether a trained spotter was used at those facilities. Whether or not a spotter was used at those facilities, having a trained spotter would not guarantee that no benzene-contaminated material will enter the landfill proposed by Out of Bounds. Out of Bounds suggested that ammonia violations result from C&D facilities accepting yard trash. However, there was no evidence of a connection between acceptance of yard trash and ammonia violations. The operational plan proposed by Out of Bounds to “cover as you go” is the accepted best practice to control hydrogen sulfide odor, which comes from wet drywall. Out of Bounds suggested that its cover plan would prevent any sulfate violations, but there was no evidence to prove it. There was no evidence as to whether the C&D facility proposed by Out of Bounds would be substantially different from the other existing C&D facilities in DEP’s Southwest District. Absent such evidence, Out of Bounds did not provide reasonable assurances that its proposed facility would not cause groundwater quality violations. The site for the C&D facility proposed by Out of Bounds is internally drained. There are no surface waters onsite or within a mile of the site. There was no evidence of a surficial aquifer above the Floridan aquifer. Rainfall entering the Out of Bounds property migrates downward into the Floridan aquifer. Once in the aquifer, there is a horizontal component of groundwater water flow in a generally southwest direction, towards the Knox and McCune wells. Contaminated leachate from the proposed C&D facility would migrate with the groundwater. Out of Bounds suggests that a thick clay layer under the site of its proposed facility would prevent the downward migration of groundwater into the Floridan aquifer. There are several reasons why the clay layer does not provide the reasonable assurance of a liner that contamination from the proposed landfill would not reach the Floridan aquifer. Clay is much more permeable than a geomembrane meeting DEP’s specifications for use as a liner. The clay on the proposed site is on the order of at least a thousand times more permeable. (Out of Bounds appeared to confuse the permeability of such a geomembrane with the allowable permeability of the geosynthetic clay layer or compacted clay layer underlying the geomembrane. Cf. Fla. Admin. Code R. 62-701.730(4)(f).) In the application process, Out of Bounds relied on the clay layer for purposes of sinkhole prevention and mitigation, not for reasonable assurance that no liner was needed. The limestone formation underlying the site is highly variable, with numerous pinnacles; for that reason, the thickness of the clay layer also is highly variable, making it difficult to excavate the proposed landfill with complete assurance that the clay layer would not be penetrated. To provide reasonable assurance for purposes of sinkhole prevention and mitigation, Out of Bounds proposed to leave or create a clay layer at least six feet thick underlying the bottom of the proposed landfill. Because the site is in an area of high recharge to the Floridan aquifer and drains entirely internally, the clay layer alone does not provide reasonable assurance that there will be no downward migration of contaminated groundwater to the Floridan aquifer. Reasonable assurance requires a liner and leachate collection system.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP deny the application for a C&D facility made by Out of Bounds. DONE AND ENTERED this 8th day of December, 2011, 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 8th day of December, 2011. COPIES FURNISHED: Ronda L. Moore, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Stop 35 Tallahassee, Florida 32399-3000 John R. Thomas, Esquire Law Office of John R. Thomas, P.A. 233 Third Street North, Suite 101 St. Petersburg, Florida 33701-3818 Timothy W. Weber, Esquire Battaglia, Ross, Dicus & Wein, P.A. Post Office Box 41100 St. Petersburg, Florida 33743-1100 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Stop 35 Tallahassee, Florida 32399-3000 Thomas Beason, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Stop 35 Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Stop 35 Tallahassee, Florida 32399-3000
The Issue The issues in this cause are related to the question of whether Admiral Corporation (Admiral) should be granted a construction and operation permit for a management and storage of surface waters system for the Hammock Dunes, Phase I, development. The agency with permit review responsibility is the St. Johns River Water Management District (District). This hearing is occasioned by the challenge by Petitioners to the notice of intent to grant the subject permit.
Findings Of Fact Part A The following facts are found based upon the prehearing stipulation of facts entered into by the parties: Petitioner Florida Wildlife Federation, Inc., is a non-profit corporation organized under the laws of Florida. Florida Wildlife Federation, Inc.'s, address is Post Office Box 15917, West Palm Beach, Florida 33416. Petitioner Friends of Barrier Islands, Inc., is a non-profit corporation organized under the laws of Florida. Friends of Barrier Islands, Inc.'s, address is Rt. 1, Box 161K, St. Augustine, Florida 32086. Respondent Admiral is a corporation organized under the laws of Florida. Its address is 4 Office Park Drive, Palm Coast, Florida 32037. Respondent District, a special taxing district, created by Chapter 373, Florida Statutes, is charged with the statutory responsibility of the administration and enforcement of permitting programs pursuant to Part IV of Chapter 373, Management and Storage of Surface Waters (MSSW), specifically Sections 373.413 and 373.416, Florida Statutes, and Chapter 40C-4, Florida Administrative Code. Furthermore, pursuant to Section 403.812, Florida Statutes, the District has received a delegation of the powers and duties of the Department of Environmental Regulation pertaining to the administration of Chapter 17-25, Florida Administrative Code, "Regulation of Stormwater Discharge" with power to administer the rule's requirements through implementation of Chapter 40C-42, Florida Administrative Code. The District is the agency affected in this proceeding. The District has assigned Admiral's MSSW permit application which is the subject of this proceeding the permit no. 4-035-0013A. On March 21, 1986, Respondent Admiral submitted to Respondent District an MSSW permit application no. 4-035-0013A to construct and operate a surface water management system to serve a 768 acre development known as Hammock Dunes, Phase I, located in Flagler County, Florida. Hammock Dunes, Phase I, is located on property bounded on the west by State Road A-1-A and on the east by the Atlantic Ocean. The existing Jungle Hut Road marks the majority of the northern boundary of Hammock Dunes, Phase I, and State Road A-1-A marks the majority of the southern boundary. On June 11, 1985, Respondent Admiral received from Respondent District, MSSW permit no 4-035-0001C granting conceptual approval of the surface water management system for the entire 2258 acre Hammock Dunes development, of which Hammock Dunes, Phase 1, is a part. Petitioners received written notice of the District staff's intent to recommend approval of the conceptual approval application and a notice of rights. Petitioners attended the Governing Board meeting at which the application was approved, speaking in opposition to the permit application. Petitioners did not petition for an administrative hearing or seek review of the agency action in any legal forum. On July 25, 1986, District staff gave notice of its intent to recommend approval with conditions of Admiral's MSSW permit application no. 4-035-0013A to construct and operate the surface water management system for Hammock Dunes, Phase I. Petitioners' Petition for Administrative Hearing was timely filed with the District. All surface waters which are proposed to receive surface water discharges from the surface water management system proposed by application no. 4-035-0013A which is the subject of this proceeding are Class III surface waters and are not Outstanding Florida Waters. Hammock Dunes is an approved development of regional impact. The proposed surface water management system for Hammock Dunes, Phase I, is consistent with the plans approved in the conceptual permit issued by the St. Johns River Water Management District. By an amendment to the prehearing stipulation, the parties agree that it is not necessary to consider the implications of the Hammock Dunes development as it might endanger life or property, with the exception of the implications of that development as they affect drinking water quantity and quality. The issues pertaining to drinking water are discussed in subsequent fact finding. Part B The remaining facts are found based upon the record created at hearing, in view of the demeanor of witnesses who testified and based upon suggested facts proposed by the parties. Florida Wildlife Federation, Inc., has statewide membership with approximately 20 members living in the Hammock Dunes area, including several who use shallow wells immediately west of Phase I. The groundwater associated with those wells and in other locales in the vicinity of the proposed project is the source of potable water for commercial and domestic uses by local residents. Some of these individuals use purification treatment devices on the groundwater extracted. Members of the Federation also enjoy the wildlife found in the area. Friends of the Barrier Islands, Inc., has hundreds of members, some of whom own and reside on lands adjacent to the Hammock Dunes tract and who are dependent on area groundwater for their potable water. Some members fish the mosquito control ditches along the boundaries of the tract. Hammock Dunes is a proposed development located on the Atlantic Ocean coast, midway between St. Augustine and Daytona Beach. Hammock Dunes is an approved development of regional impact (DRI). The total project covers over 2200 acres, and approximately 6670 residential units are planned to be constructed over a 20-year build-out period. The residential units will cover approximately 40 per cent of the Hammock Dunes property, with the other 60 per cent being left as open space and public facilities. Approximately 400 acres will be preserved in their natural state, and an additional 500 acres will be converted into golf courses, parks, school sites, and other public amenities. The approval of the Hammock Dunes, Phase I, development, including the approval sought in this proceeding, triggers the dedication by Admiral to Flagler County of 67 acres for oceanfront parks. These recreational facilities will have a capacity for 20,000 peak-day user, and provide parking for over 3,000 cars. In addition, dune walkovers will provide access to the beach while protecting the dunes. Admiral Corporation will also contribute to the cost of constructing a dune driveover. Phase I of Hammock Dunes covers approximately 768 acres on which a little over 1700 residential units will be built. Thirty-seven per cent of the Phase I property will be used for residential land uses, while 63 per cent will be left as open space and other activities, including a preserved hammock, functional wetlands, and a golf course. Based upon this land use mix, the runoff coefficient for the Phase I development will be 0.3. The Hammock Dunes DRI, of which Phase I is a part, includes a bridge over the Intracoastal Waterway to connect the Palm Coast area to the Hammock Dunes area. The bridge and its stormwater runoff management system are not part of Phase I. They have been previously permitted. In the vicinity of the project site, Washington Oaks State Gardens is found. It is a tract of public land located to the north of the northern boundary of the Hammock Dunes DRI project. It uses groundwater as potable water and for irrigation. Private lands are located between the northern boundary of the overall Hammock Dunes and the southern boundary of the public land. Phase I of Hammock Dunes exists in the southern part of the Hammock Dunes. The project in question will cause no adverse effects to the public or private property to the north related to water quality or quantity or otherwise. Hammock Dunes is surrounded by salt waters. It contains several habitat types ranging from beach and dune communities near the ocean to a hardwood forest at the westerly edge of the site. In order to determine the geologic and hydrogeologic characteristics of Phase I (hereinafter referred to as "on site" or "the site"), Admiral conducted a study which included the drilling of eleven shallow wells and two deep wells on site. It also conducted a pump test at the site in furtherance of this inquiry. The well drilling information revealed that medium to fine grain sands exist to a depth of approximately ten feet. Below-this level to an approximate depth of forty feet below land surface are found a series of undifferentiated sand and shell materials. At an approximate depth of forty feet, which constitutes the base of the surficial aquifer, to a depth of approximately fifty feet, there exists a very stiff clay layer known as the Hawthorn formation. This formation acts as a confining unit between the surficial aquifer and the Floridan aquifer which underlies the formation. An outcropping of consolidated material known as the Anastasia formation can be seen on the Atlantic coast beach to the east of the site. This formation does not extend to the western boundary of the site. The pump test performed on the site by Admiral was sufficient to determine the characteristics of the surficial aquifer. The transmissivity of the surficial aquifer, i.e., the ability for the water to move through the aquifer, is approximately 12,500 gallons per day per foot. Expert witnesses in the field of hydrogeology who testified at hearing did not find this value for an aquifer of that type to be other than as expected. A lens of fresh water that is of drinking water quality underlies most of the island. This is related to the surficial aquifer. Rainfall is the only source of replenishment or recharge. As a consequence, the water table fluctuates depending on rainfall patterns and seasonal or climatic cycles and drawdown by the mosquito control district in operating its ditches. Currently on the site there exists a groundwater divide located approximately 2,000 feet east of State Road A-1-A. This groundwater divide runs in a north-south direction. Therefore, the groundwater movement occurs in an east-west direction. In other words, a molecule of water landing on the west side of the divide will percolate into the soil and flow westward toward the Intracoastal Waterway, while water landing on the east of the divide will flow eastward to the Atlantic Ocean. The direction of the flow will remain the same after construction of the system. It will not be possible for a molecule of groundwater anywhere within the proposed Phase I project to migrate to Washington Oaks State Garden because the groundwater flow will not proceed in that direction. The Hammock Dunes, Phase I, surface water management system which Admiral proposes on the site will include 77 acres of excavated lakes interconnected with 11 acres of created freshwater marsh and integration of 19 acres of existing wetlands. After excavation the lakes will directly connect with the groundwater in the surficial aquifer and mix surface waters with the groundwater. This will increase the amount of water exposed and lost to evaporation. The excavations will occur below the water table and penetrate the surficial aquifer. However, on balance, the water management system will increase the amount of water at the site. As stated, the mosquito control ditches currently serve to drain the surficial aquifer of its stored Water. Most of these ditches will be filled; however, one 800 foot ditch in the southeast section of the site will not be filled, and a dredge and fill permit application related to that ditch as previously filed with the Department of Environmental Regulation has been withdrawn. Water control structures will be constructed to control the discharge from the proposed system to surface waters. These water control structures will maintain the water level in the system at or above 4.0 NGVD 77 percent of the time. The minimum water level in the system, even in a dry year, will be 2.7 NGVD. Presently, discharge to adjacent surface waters occurs through existing culverts at invert 1.2 feet NGVD. These culverts are connected internally north/south by the existing mosquito control ditches and this tends to bleed down groundwater in the area to the elevation 1.2 NGVD, thus allowing flow into the receiving surface waters. The entire site is located above the 100-year flood elevation, and the proposed control structures have been designed to withstand the 100-year storm event. A 100-year storm surge is not expected to overtop the dunes. However, in the unlikely event that ocean waves did wash over the dunes, any salt water in the water management system will be detected by a monitoring system and will be collected and drained from the system through sumps and water control structures. There are numerous dune breaches on the site which have been caused by various events over time. As part of Phase I, Admiral will repair these dune breaches and restore them to their natural state. The golf course to be constructed as part of the Phase I development will be irrigated with treated domestic wastewater, except within 500 feet of the Phase I property boundaries. The area to be irrigated with treated wastewater will include about 90 percent of the Phase I golf course, or about 75 acres. The remaining golf course area, within a 500-foot buffer, will be irrigated with potable water. All golf course irrigation water, whether treated wastewater or potable water, will be imported to the Phase I development from west of the Intracoastal Waterway. The golf course fairways will receive approximately two inches of treated wastewater per week, or approximately 100 inches per year. This is approximately twice the annual rainfall on site. The amount of water imported to the Phase I development for golf course irrigation purposes will be about 600,000 gallons per day. The irrigation water on the golf course will percolate through the soil and into the groundwater table. It will then move laterally into the lake system. The flow of this groundwater will be from the water table into the lake system at all times, rather than in the other direction, except for a small portion of the flow beneath part of three golf fairways which will tend to flow off site. Nothing about these flow regimes will adversely affect off-site locales through violation of applicable water quality standards. As described, the treated effluent for fairway irrigation will be piped initially from the existing wastewater treatment plant in the western part of Palm Coast, a development located west of the Intracoastal Waterway. Later, it is expected that treated effluent from a wastewater treatment plant located at Hammock Dunes will be used for irrigation. This plant will be located north of the Jungle Hut Road, outside the boundaries of Phase I. The plant will serve to treat sewage from the entire Hammock Dunes development. Until it is constructed and builds up sufficient effluent volume to supply the effluent needed for golf course irrigation, effluent will continue to be piped from the Palm Coast plant. The interim effluent for fairway irrigation will be supplied from a domestic sewage treatment plant which has no industrial component to its wastewater influent. Water quality analyses of the effluent reveal no heavy metal concentrations or presence of any priority pollutants. Any surface runoff from Phase I will be conveyed by overland flow and grassy swales to the interconnected lakes which will serve as wet detention ponds. The created lakes and marshes will be planted with littoral zone vegetation. The created marshes will have 4:1 side slopes from finished grade (about eight feet NGVD) to the control elevation of four feet NGVD. From the control elevation to a water depth of eighteen inches, the side slope will be 10:1. The design water depth of the entire remainder of the marshes will be eighteen inches except for a channel about 20 feet wide, the sides of which will slope to a depth of 6 feet at a 2:1 ratio. The lakes themselves will have over ten miles of shoreline. About three and one-half miles of this lake shoreline littoral zone (or about one- third of the total) will be at a side slope of 10:1 with the remainder being at a side slope of 4:1. In determining the impact of the proposed system on the recharge and storage in the surficial aquifer, factors which must be considered include rainfall, filling, excavation, evaporation from water bodies, evapotranspiration from vegetation, and effluent application. The net effect of the system proposed by Admiral will be to increase the amount of recharge and storage in the surficial aquifer. The increase in stage of the surface waters on site to elevation 4.0 feet NGVD as a result of the water control structures, combined with the approximately 600,000 gallons per day of water imported to the Phase I development, will increase the availability of groundwater in the general area of the project site. Presently, in the area of Phase I, water table elevations range from approximately one and a half feet above mean sea level to about six and a half feet above mean sea level. The lowest points in the water table are located on property closer to the Intracoastal Waterway. This explains why individuals with shallow wells tapping the surficial aquifer experience salt water intrusion from the Intracoastal Waterway. Removal of the existing system of mosquito control ditches and associated structures and replacement with the proposed surface water management system and treated effluent irrigation will result in higher groundwater elevations. As a result, the saltwater/freshwater interface will be improved in favor of the freshwater side, limiting saltwater intrusion. This aspect of the proposed system will benefit existing users of the surficial aquifer located between the western boundary of the site and the Intracoastal Waterway. The use of treated effluent rather than potable water for golf course irrigation allows increased availability of potable water for other uses which require the water to be potable. In essence, this arrangement conserves the water resources of the region. Pollutants which are expected to be present in tide runoff from Phase I are the metals: cadmium, chromium, copper, iron, lead and zinc; nutrients: total nitrogen, total Kjedahl nitrogen, nitrates, total phosphates and orthophosphates; coliforms: total coliforms and fecal coliforms; oil and grease; and pesticides. Admiral does not propose a stormwater discharge facility which utilizes a design described in Rule 40C-42.035, Florida Administrative Code, entitled "Stormwater General Permits." In lieu of this design, Admiral has proposed an alternative treatment system. The alternative treatment system utilizes grassed swales, created freshwater marshes and created lakes which act as wet detention basins with a mean residence time of approximately 92 days, gradual sideslopes and planted littoral zone vegetation. Admiral's proposed system maximizes treatment efficiencies, i.e., pollutant removal, through the following mechanisms: filtration, sedimentation, adsorption, precipitation, biological activity and dilution. The alternative treatment system proposed by Admiral, will provide equivalent pollutant removal when compared with the stormwater facility designs generally permitted. The proposed system discharges at two culverts at the south end of the site to the Florida East Coast Canal and at the existing 800 foot ditch in the southeastern part of the project. These three points are considered as discharge into the receiving surface waters. Maximum metal concentrations in the groundwater seepage through the proposed fairways and swales are found immediately below the fairways and swales. These concentrations do not exceed allowable values for drinking water and Class III waters. Concentrations of nutrients can be expected in the groundwater seepage below the fairways and swales. The concentration for nitrate will not exceed the drinking water standard. Concentrations of all nutrients are expected to fall within the background range of the surrounding receiving surface waters and will not cause an alteration so as to cause an imbalance in natural populations of aquatic flora and fauna. Metal concentrations in the groundwater seepage will exist immediately below the proposed wet detention ponds. They will not exceed drinking water standards and Class III standards. Nutrient concentrations in the groundwater seepage will exist immediately below the proposed wet detention ponds. The expected concentrations of nitrate immediately below the ponds will not exceed the drinking water standard for nitrate. Expected nutrient concentrations fall within the range of existing background conditions in the receiving surface waters and will not result in an alteration so as to cause an imbalance in natural populations of aquatic flora and fauna. The quality of the surface water in the proposed lake system will meet Class III surface water quality standards. This applies in the lakes and, at the point of discharge from the proposed lake system, to the adjacent Class III receiving surface waters. This is true for all of the pollutants likely to be generated by the Phase I development, including metals, nutrients, oil and grease, coliforms, and pesticides. In addition to meeting the Class III criteria, the concentrations of pollutants in the discharge from the proposed Phase I lake system will be within the range of the concentrations of those pollutants already in the adjacent Class III surface receiving waters. Consequently, the discharge will not result in the dominance of nuisance species; not alter nutrient concentrations so as to cause an imbalance in natural populations of aquatic flora or fauna; not create nuisance conditions or conditions harmful to health or safety; and not contain constituents in concentrations which are carcinogenic, mutagenic, teratogenic or toxic to humans or aquatic species. All minimum criteria will be met in both surface water and groundwater. Due to the type of soil and the removal mechanisms present, no coliform bacteria levels are expected in the groundwater as a result of the proposed system. Coliform bacteria discharged into the receiving waters will not exceed standards for Class III waters. Oil and grease in runoff from Phase I will be prevented from entering the wet detention systems and any receiving waters by the installation of oil baffles or skimmers. Given the type of development proposed for Phase I and the pollutant removal mechanisms in the proposed system, the concentrations of metals, nutrients, oils and grease, and coliform bacteria will meet primary and secondary drinking water standards prior to discharge into the wet detention ponds. Admiral will employ an integrated pest management program to control pests. This plan is required to be submitted to the District staff for review and approval. Given the limitations on class and characteristics of allowable pesticides, there will be no exceedance of groundwater water quality standards. The proposed system will not create a water quality nuisance or a condition harmful to health or safety or discharge pollutants in concentrations which are harmful to humans, wildlife or aquatic species. Admiral will employ a surface water and groundwater monitoring program for all parameters of concern. This will alert the applicant to problems that may occur related to the parameters and allow remedial action to be taken. Given the high degree of pollutant removal in the proposed system, a zone of discharge of 100 feet would be sufficient to protect the existing users of the surficial aquifer. The groundwater beneath the golf course fairways and swales will meet the primary and secondary drinking water standards and the other G-1 groundwater standards within 100 feet of the point of discharge. The quality of the groundwater beneath the proposed lakes will be unaffected by the lakes because the groundwater flow will basically be from the water table into the lakes, rather than in the other direction. Even if water were to flow out of the proposed lake system into the adjacent groundwater, no groundwater quality standards would be violated because the water in the lakes will meet the primary and secondary drinking water standards. Groundwater flowing off site will also meet the primary and secondary drinking water standards. During the construction, erosion problems will be prevented by Admiral's erosion control plan. The erosion control plan submitted with the application for the Phase I MSSW permit is adequate to protect Class III water quality standards during construction of the Phase I surface water management system. Dewatering during construction will be conducted in accordance with the Hammock Dunes Surficial Aquifer Mitigation Plan to ensure that groundwater levels are not lowered and existing users of the surficial aquifer are not harmed. The Dunes Community Development District, organized pursuant to Chapter 190, Florida Statutes, will own, operate and maintain the proposed water management system. This organization will perform any necessary littoral zone management. The proposed system will be easy to operate. The proposed system will not cause an increase in the peak rate of discharge from the Phase I site. Phase I will promote no effect on surface water levels off-site. On the project site, both ground and surface water levels will be stabilized. Phase I will not adversely impact the off-site storage and conveyance capacity of any surrounding water bodies or water courses. On site there presently exist two maple swamp areas which have been identified as wetlands. They are imperfectly drained. These areas will be preserved with the exception of approximately one acre on the northern end of the southernmost maple swamp which will be filled for construction of a roadway. Varn Lake is a borrow pit presently on the site. It has nearly vertical side slopes. The lake supports a very narrow strip of littoral vegetation. However, it is heavily overgrown with aquatic weeds and is presently very low quality habitat for fish. Varn Lake will, according to the plan of development, be renovated by the mechanical removal of aquatic vegetation resulting in a vastly improved aquatic and wetlands habitat which is more accessible than that which presently exists. A small isolated cattail pond of less than one acre in size was also identified as a wetland area. It will be filled as a result of the development. The mosquito ditches on site are weed-choked and subject to periodic weed removal by the East Flagler County Mosquito Control District, which disrupts the aquatic species that are found there. The mosquito control ditches which exist on the Phase I property have served to lower the water table, thus reducing or eliminating any wetlands functions served by what were once interdunal swales. Although the mosquito control ditches do support some fish and some aquatic and wetlands vegetation, the quality of the vegetation is poor. Varn Lake is not a very good fish habitat. Because of the vertical side slopes of the ditches and because of the heavy overhanging canopy of trees, the suitability and availability of the ditches as a foraging area for wading birds such as the wood stork is severely limited. In summary, there are limited wetlands functions being served by the mosquito control ditches. The development of Hammock Dunes, Phase I, will have a beneficial effect on wetlands in the area. The lakes to be constructed as part of the proposed surface water management system will be a habitat far superior to the existing mosquito ditches. Several marsh wetlands will be created. There will be a substantial increase in water body edges planted with littoral zone vegetation around the lakes and marshes. These littoral zones, of which 70 per cent will be at a 4:1 slope and 30 per cent will be at a 10:1 slope, will serve as shallow water habitat for fish. Varn Lake, after being renovated by mechanical removal of the aquatic weeds, will be incorporated into the connected lake system. The proposed surface water management system would raise the water table and thus serve to rewater two maple swamp wetland areas which are left undisturbed by Hammock Dunes. This change in elevation of the water table enhances wetlands functions performed by the swamps. The hammock located to the west of the site will also profit by the increase of the elevation of the water table by making it more resistant to severe freezes. Aquatic or wetland-dependent species are those species which depend upon aquatic or wetland habitats for the propagation or reproduction of the species such that if the aquatic or wetland habitat were eliminated, the species would not survive in that place. Aquatic or wetland-dependent species which have been identified as possible users of the project site includes various varieties of fish, waterfowl, aquatic birds, alligators, marine turtles, peregrine falcons, raccoons, opossums, Florida water rats and gopher frogs. The proposed surface water management system will have a beneficial impact on aquatic and wetland-dependent species, and the diversity of these species utilizing the Hammock Dunes, Phase I, property should increase. The present linear system of mosquito ditches on the Hammock Dunes, Phase I, property is not adequate to provide food for large numbers of water fowl and aquatic bird species. Consequently, few of these birds are present and virtually none of them nest in this area. There will be a great increase in the utilization of the Hammock Dunes, Phase I, property by water fowl, wading birds, and other water-dependent bird species after the proposed surface water management system is constructed. This increase will result from the increased amount of surface water, the extensive littoral zones and the created marshes. Wading birds such as the woodstork, snowy egret, and blue heron are rarely present on the Hammock Dunes, Phase I, property. These birds find little opportunity to successfully feed in the area due to the vertical side slopes of, and the canopy of vegetation over, the existing mosquito ditches. No nesting of these species presently occurs on the Hammock Dues, Phase I, property. Woodstorks nest with the occurrence of seasonal shallowing of open wetlands which creates a range area to gather food for their young. The present situation at the site is not conducive to nesting activities for the woodstorks. Following the construction of the proposed surface water management system, these bird species will become more prevalent, feeding in the created marshes and the lake littoral zones. Also, the islands to be created in the marsh areas may serve as rookeries, or breeding areas, for some of these wading birds in the future. Woodstorks have not been sighted on the property. Other wading birds such as the snowy egret and the blue heron infrequently attempt to forage in the mosquito ditches or along the edge of Varn Lake. The proposed repairs to the breaches in the dune system will have a beneficial effect on the peregrine falcons and marine turtles that use the beach area. Gopher frogs are apparently not present on the Hammock Dunes, Phase I, property, and therefore impact to this species as a result of the construction and operation of the proposed surface water management system is doubtful. Residents and occasional wildlife will be adversely impacted by the loss and disturbance of the wetland habitats and edges of the mosquito control ditches on site during the intervening construction phase, but in the finished product, wildlife habitat will be superior to existing circumstances. The District staff has recommended and Admiral has indicated that it accepts the following conditions to the issuance of the proposed MSSW permit: All retention basin side slopes must be seeded and mulched within 30 days following their completion and a substantial vegetative cover must be established within one year of seeding. A bleeddown orifice or weir must be incorporated into the final design of the outfall structures from the water management system. This bleeddown device must have an invert elevation of 4 feet NGVD and discharge capacity of 2 cfs. Plans showing the bleeddown device must be submitted to the District for District staff approval prior to the construction of the outfall structure. All construction dewatering must be performed in accordance with the Hammock Dunes Surficial Aquifer Mitigation Plan dated June 27, 1984. All construction activities must be performed in accordance with the Hammock Dunes Phase I Erosion Control Plan received by the District on June 6, 1986. In addition to the parameters set forth in the surface water monitoring plan submitted by the permittee, the following parameters shall be sampled on a quarterly basis at the stations specified in the plan: Total coliform Fecal coliform Total N Nitrate as N TKN Orthophosphate Pesticides applied to golf course Cadmium Chromium Copper Lead Iron Zinc After three years of operation the permittee may request a modification in the parameters, frequency and duration of the monitoring program based on a demonstration that there is an adequate data base to predict future trends in the effects of discharge from the proposed project and the treatment efficiency of the system. A staff gauge with a known datum, established by the Florida Registered Land Surveyor, must be installed in the Phase I lake system. Admiral Corporation will be responsible to document the surface elevation of the lake system on a daily basis for a period of three years following the completion of the Phase I discharge structures. This data will be reported to the District on a yearly basis. Concurrent with the beginning of excavation of the proposed stormwater lakes, the permittee must submit a planting and management plan for the littoral zone and freshwater marshes for District staff approval. The plan must include the wetland species which will be used, the planting densities, timing of planting and any management activities that are intended to ensure the continuance of health of the littoral zone. Application of sewage treatment plant effluent to the golf course is contingent upon approval by the Department of Environmental Regulation pursuant to Chapters 17-4 and 17-6, F.A.C. Prior to pesticide use, the permittee must submit an Integrated Pesticide Management Plan for District staff approval. The selection of pesticides must be based upon short half-lives (1-10 weeks), a low n- octanol/water partition coefficient and suitability to site specific soil and groundwater ph. The use of organochlorides will not be allowed. Permittee must adhere to the fertilizer recommendations set forth in the manual for Commercial Turfgrass Management by the University of Florida complied by Florida Turf-Grass Association. The nutrient loading attributable to the application of effluent shall be considered a source of fertilizer for the golf course and additional non-effluent fertilizer sources shall be utilized only to supplement the quantity supplied by the effluent in supplying the total golf course fertilizer needs. Permittee must excavate sumps in Lakes A, B, K, Q and Varn Lake to the following dimensions: bottom elevation -8.0 feet; side slopes 2H:lV (below 1 foot NGVD); and bottom dimensions of 10 ft. x 10 ft. Permittee must alter the design of Water Control Structure #3 and #2 to incorporate an operable water control gate or valve which is capable of draining the surface water management system down to an elevation of 1.0 ft. NGVD. These gates or valves must be sluice type devices which are capable of draining water from the bottom of the lake. These gates or valves must be locked in the closed position and may only be opened at the direction of the District. Permittee must monitor chloride concentrations at depths of 1, 3 and 5 feet at surface water monitoring stations SW-5 through SW-12 on a quarterly basis. This data must be submitted to the District annually. Should the lake system become contaminated with seawater due to storm surge overtopping the dunes, permittee must take appropriate action to drain the saltwater from the lakes through the use of the gate or valves placed in Water Control Structures #2 and #3 and the sumping or siphoning of saltwater from the lakes at the locations of the Sumps. Permittee must notify the District before undertaking any plan to drain the saltwater from the lakes to ensure that water quality standards are met. These conditions are reasonable and are accepted as fact and as a justifiable policy choice.
Findings Of Fact Ocean Reef Club, Inc., is the developer of certain lands located on the northern end of Key Largo, Monroe County, Florida. The development began as a fishing village in the 1940's and now includes private residences, a marina, and residential docking facilities. Ocean Reef applied in 1982 to DER for a permit to construct a residential docking facility known as Fisherman's Wharf. The facility was to provide a number of parallel docking spaces with an access channel following an existing tidal creek to the northeast connecting to a waterway known as the Harbor House Basin. The permit was issued on October 5, 1984, authorizing construction of a 4-foot wide parallel dock approximately 600-feet long, the dredging of a turning basin through the excavation of approximately 1800 cubic yards of material and the dredging of some 200 cubic yards from an existing tidal creek along a 480 lineal foot length of the creek to a width of 5-feet; all located in No Name Creek, a tidal creek connecting Harbor House Marina to Pumpkin Creek, in Card Sound, Key Largo, Monroe County, Section 11, Township 59 South, Range 41 East. That permit was extended by a letter dated June 10, 1987, and now carries an expiration date of October 5, 1989. The existing permit held by Ocean Reef Club, valid until 1989, would allow the direct dredging of a tidal creek vegetated by seagrasses over a 400- foot length yielding a direct dredging of seagrasses of some 3000 square feet. During the two-year processing time leading to issuance of the permit, Ocean Reef sold a portion of the property comprising the access channel to third parties who now will not grant their permission authorizing channel construction across their property. As a result, in 1987, Petitioner requested a major modification to permit no. 440601649. Although Petitioner attempted to show that its change of plans had been inconsistently processed by DER as a new permit application when DER was obligated to treat it as a modification of a prior permit which would require no new application, processing, or permit, Petitioner was unable to do so. Petitioner's expert professional land surveyor, Joseph Steinocher,, concurred with DER witnesses Kelly Jo Custer and David Bishof that the Ocean Reef plan changes were so significantly altered as to constitute a wholly new project. Steinocher specifically indicated it was a "significant change in that there is no relationship between the two," and Custer, DER's marina permitting specialist, testified that DER's consistently applied policy is to require all such significant permit modifications to be processed de novo as wholly new permit applications because to do otherwise would not be in the public interest. Custer was also qualified as an expert in marine biology and water quality, and from Custer's viewpoint, the changed plans constitute a new and different project for many reasons but primarily because the project impacts on water which have been designated Outstanding Florida Waters (OFW) during the intervening years. The project revision/new permit application plans changed the configuration of the turning basin, providing for a kidney-shaped upland basin with the utilization of an additional portion of No Name Creek, extending Southeasterly toward the entrance of a water body known as Fisherman's Cove. Because the project initially proposed disturbance of wetlands and dredging of mangroves, a mitigation area of some 10,300 square feet was included in the plan. The original proposal called for the straightening of an oxbow in the existing tidal creek and the placement of fill through approximately one-half the reach of the tidal creek to gain access to the dredge area with the fill to be removed after construction. During the processing of the latest permit application, adverse comments were received from DER staff members, and the Petitioner modified the application to eliminate the straightening of the oxbow. The pending proposal involves the construction of 24 boat slips along a floating dock, the installation of boulder rip-rap, and the placement of culverts to allow access to a central island to remain after construction of the docking facility. As a result of prior permit agreements between the parties, Ocean Reef Club had conveyed approximately 730 acres to the State of Florida Board of Trustees of the Internal Improvement Fund by special warranty deed dated March 17, 1982. Petitioner asserted but failed to prove up that all construction involved in the pending proposal is landward of those lands either conveyed by that special warranty deed or otherwise in the control of the State of Florida and in fact would be wholly upon its own property. Even had the private property encapsulation of the construction been established, Petitioner's registered land surveyor admitted that the tidal creek entrance is within the limits of the deed to the State of Florida. Access for the proposed 24-slip facility will be through the existing tidal creek that has water depths ranging from minus 2.2 feet to in excess of minus 8 feet at low tide. The earlier proposal would have required only a small portion of the natural creek to be used by motor boats. The project contemplated in 1984 and the one which is the subject of the present litigation are not comparable either biologically nor legally. It is noted that one condition of the 1984 permit even required navigational barriers to be placed at the mouth of No Name Creek. Accordingly, it is specifically found that the significant plan changes render the pending Ocean Reef permit application truly a new project rather than a minor modification as contemplated by Chapter 17-12 F.A.C. Petitioner also attempted to demonstrate that DER's denial of the new permit application was inconsistent with its issuance of permits for similar marina projects in other locations. Neither these allegedly similar applications, supporting plans therefor, nor permits were offered in evidence for comparison. Moreover, for one reason or another, some of the named projects differed so much from the subject application that one witness, Kenneth L. Eckternacht, expert in hydrographic engineering, physical oceanography, and navigation, characterized the comparison as "apples to monkies." Some projects could only be compared to the applicant's proposal by one similar component, i.e. elimination of, and mitigation with regard to, mangroves. For this reason, Dr. Snedeker's limited testimony in this regard is discounted. Some projects could not be conclusively identified as within OFW. None involved the use of the type of creek system involved in the instant project. Ocean Reef Club also could not show that the current permit denial is inconsistent with the granting of the permit for the project as previously conceived in 1984, and which project cannot now be constructed due to Ocean Reef's sale of certain land to uncooperative third parties. As set forth in the foregoing findings of fact, the two projects are neither biologically nor legally identical or even clearly comparable. Petitioner's assertion that it has proposed special or enhanced mitigation because the existing permit, still valid until 1989 but now impossible to comply with, allows direct dredging of approximately 3,000 square feet while the present permit application, as modified, would not require dredging this 3,000 feet, is rejected. Under the new project plans, the proposed basin will be located immediately adjacent to the existing tidal creek which would provide the navigational access to and from the basin. The connection will be created between the basin and the creek by excavating only 100-150 square feet of mangroves which lie between the creek and the area of the proposed basin. In making the immediately foregoing finding of fact, the testimony of witnesses has been reconciled without imputing any lack of credibility to any of them. Respondent's expert, Kelly Jo Custer, expert in marine biology and water quality and also their agency marina specialist, testified that the cross-hatching on the project plans, if read to scale, confirms the testimony of Petitioner's witnesses that the square footage of mangroves to be removed is 100-150 square feet and that the cross-hatching must take precedence over the raw number copied onto the plans. The wetlands in and around the project site, including No Name Creek, are within an OFW, specifically the Florida Keys Special Waters. The project site is located in North Key Largo, approximately one-half mile north of John Pennekamp State Park within the Atlantic Ocean and adjacent to the Biscayne Bay/Card Sound Aquatic Preserve. All of these waters are Class III surface waters. The marina basin itself will be excavated to a depth of minus four feet mean low water. The 24 proposed boatslips will accommodate moorage of boats as large as 25 feet with a draft of two feet. The marina basin will enhance recreational values and channel, despite its greater depth, and at the inner portions of its several bends. It is also implausible that Petitioner's plans to limit boat size through condominium documents to be enforced through a homeowners association, to install mirrors, signalling devices, and latches at certain points along the creek, and to install tide staffs at creek entrances will prevent potential head-on boat collisions or bottlenecks in No Name Creek. It is equally implausible that these procedures can provide reasonable assurances that there will not be a chronic increase in water turbidity from increased use or damage to biota from propellers and boat impact. The witnesses generally concurred as to the present ecological status of No Name Creek. It contains Cuban shoalweed and turtlegrass scattered with varied density throughout, and especially found in two patches between the proposed basin and the point at which there is a drastic bend or oxbow in the creek. The seagrasses in the creek serve many valuable functions including providing a substrate upon which epiphytes may attach, and providing a source of food and refuge for fish and small invertebrates. Seagrasses also fix carbon which they absorb from the sediments and water column through photosynthesis. Green and red algae found throughout the creek provide habitat and carbon fixing functions similar to that provided by the seagrasses. Corals and sponges are present. Three species of sponge located in the creek are found only in the Florida Keys and nowhere else in the United States. Other creek biota include barnacles and oysters attached to mangrove roots, lobsters, anchovies, needlefish, grunts, mojarres, electric rays, various small fish, and invertebrates. Biological and botanical diversity is an important measure of the creek's rich ecological quality and value. The increased boat use of No Name Creek inherent in this dredging project will adversely affect the quality and diversity of the biota. In a creek of this configuration with mean low tide occurring roughly every 12 hours and NEAP tides approximately every two weeks, direct impact of boat propellers is a certainty. The shallowest parts of the creek tend to be limerock shelves which provide a hospitable substrate for the corals, and which are most susceptible to propeller damage, as are the seagrasses and sponges. Petitioner's assertion through Mr. Castellanos and Dr. Roessler that all boaters can be relied upon to employ tilt motors to best advantage in shallow water so as to avoid overhanging mangrove branches at the creek's edges (shores) and so as to keep their boats within the portion of the channel away from submerged mangrove roots and further can be trusted to proceed slowly enough to allow slow-moving water creatures to escape their propellers is speculative and unrealistically optimistic. Despite all good intentions, the strong currents of this creek and its meandering nature work against the average pleasure boater keeping to the narrow center channel. An even more compelling problem with this project is that increased sustained turbidity from propellers and boat movement within close range of the creek bottom will scour the creek bottom and/or stir up the bottom sediment on a regular basis. Once suspended, bottom particles will be redeposited on the seagrasses, impeding photosynthesis and smothering the sponges and corals. Upon the testimony of Custer, Echternacht, and Skinner, and despite contrary testimony of Roessler and Larsen, it is found that the admittedly strong currents in the creek will not flush the particles sufficiently to alleviate the loose sediment problem, and may actually exacerbate the chronic turbidity problem. Strong currents can create a cyclical situation in which, as the seagrasses die or are uprooted, even more particulate matter is loosened and churned up. Chronic turbidity of No Name Creek has the potential of violating the applicable water quality standards for biological integrity, for turbidity, and for ambient water quality. These impacts will not be offset by Petitioner's creation of 38,100 square feet of new underwater bottom because, although this new area will become vegetated, it will never be as rich or as diverse as the existing bottom. This is also true of the pilings and rip rap in regard to sessile animals/barnacles. Petitioner's plan to replant red mangroves over 10,300 square feet may be sufficient in mitigation of the loss of 100-150 square feet of mangroves by itself (see Finding of Fact 16) but for the foregoing reasons, it does not constitute full mitigation for the new permit application. The project will be of a permanent nature. The project will not adversely affect significant historical and archeological resources.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered denying the requested permit. DONE and RECOMMENDED this 20th day of September, 1988, at Tallahassee, Florida. ELLA JANE DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1988. APPENDIX TO RECOMMENDED ORDER DOAH Case No. 87-4660 The following constitute specific rulings upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1, 2, 3, 4, 5, 7, 10, 11, 20, and 25 are accepted. Accepted except for the last sentence which is rejected upon the greater weight of the credible evidence as a whole. Accepted but specifically not adopted as stated because the plan calls for destruction of certain mangroves (100- 150 ft.) and the planting of others as opposed to mere "addition." 6, 9, 12, and 27 are accepted in part and rejected in part. There was a failure of proof by both parties as to whether the Petitioner would or would not be conducting all activities landward of those lands conveyed. Although there is testimony to this effect, none of the surveys introduced nor other competent evidence allow the undersigned to definitely plot the description contained in Exhibit P-9 with respect to the current permit application plans. In any case, the proposals are not dispositive of the material issues in this case. The reservation, if it does apply, supports denial of the permit. See FOF 9. 8, 26, 28, 29, and 32 are rejected as subordinate and unnecessary, and in some cases as mere recitation of testimony or unproved. See next ruling. 13, 14, 15, 16, 17, 18, 19, 21, 22, 30, 31 and 33. Portions of these proposals are accepted in substance as reflected in the FOF. In part, they are rejected as mere recitation of testimony or as subordinate and unnecessary. The remainder is not accepted due to the relative weight of the credible testimony which is reflected in the facts as found. 34-36. Rejected for the reasons set out in FOF 13. Respondent's PFOF 1, 2, 4-6, 9, 11, 14-22, 24-34, 38-43, 48-52, 54, sentence 2 of 57, all except sentence 1 of 59, and 60 are accepted but not necessarily adopted in the interest of space and clarity or because they are cumulative or mere recitations of testimony. 3. Rejected for the reasons set out in FOF 16. Rejected. There was a failure of proof by both parties as to whether the Petitioner would or would not be conducting all activities landward of those lands conveyed. In any case, the proposal is immaterial to the environmental issues dispositive in this case. See FOF 9 and ruling on Petitioner's 6, 9, 12 and 27. Rejected as this was the unproven opinion of Mr. Poppel. No consent judgment is in evidence. 10, 12, and 13. Portions of these proposals are accepted in substance as reflected in the FOF. In part, they are rejected as mere recitation of testimony or as subordinate and unnecessary. The remainder is not accepted due to the relative weight of the credible testimony as reflected as the facts as found. 23, 53, sentence one of 57, and sentence one of 59, are rejected as argument of counsel or statement of position. 35-37, 44-47, 55, 56, 58, and 61-64 are rejected as subordinate, unnecessary or cumulative to the facts as found. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Robert A. Routa, Esquire Post Office Drawer 6506 Tallahassee, Florida 32314-6506 Richard Grosso, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
