The Issue The issue is whether the comprehensive plan amendment adopted by Ordinance No. 96-28 is in compliance with Chapter 163, Part II, Florida Statutes, and Chapter 9J-5, Florida Administrative Code.
Findings Of Fact Petitioners are residents of Tarpon Springs. By stipulation, Petitioners have standing. This case arose out of a final order sustaining a challenge to a land development regulation adopted by Respondent City of Tarpon Springs (Tarpon Springs). The land development regulation allowed the construction of swimming pools and enclosures up to within eight feet of seawalls, despite Plan requirements of a 15-foot buffer along all wetlands and a 30-foot setback for all shoreline construction outside of the Sponge Dock Area. In Jeff and Laura Johnson and Department of Community Affairs v. City of Tarpon Springs, Case No. 95-6206GM, the Administrative Commission determined that the land development regulation was inconsistent with provisions of Tarpon Springs' comprehensive plan (Plan). However, the Administrative Commission withheld sanctions, as long as Tarpon Springs repealed the land development regulation, amended the land development regulation to make it consistent with the Plan, or amended the Plan to make it consistent with the land development regulation. Choosing the third option, Tarpon Springs amended its Plan by adopted Ordinance No. 96-28 on August 5, 1997. The ordinance revises Policy 2 of the Coastal Zone and Conservation Element (Conservation) of the Plan. Petitioners have challenged Conservation Policy 2, as amended by Ordinance No. 96-28. With the new language underlined, Conservation Policy 2 declares that the policy of Tarpon Springs is to: Require a minimum 30 foot aquatic lands setback for non-water dependent uses along the City's shoreline with the exception of the historic Sponge Dock Area and accessory structures on parcels where an existing seawall has effectively eliminated the natural function of the shoreline. Accessory structures are defined as those detached from the principal building located on the same lot and customarily incidental and subordinate to the principal building or use. Accessory structures shall not include any structure having an impervious roof supported by columns or walls and intended for the shelter, housing, or enclosing of any individual, animal, process, equipment, goods, or materials of any kind[.] (Objectives 1 and 11) The Plan contains several other relevant provisions, which were not the subject of the amendment. In general, Tarpon Springs has taken a comprehensive approach to comprehensive planning by adopting, as part of its Plan, supporting data and analysis and even provisions of Chapter 9J-5, Florida Administrative Code (Chapter 9J-5). For instance, the Conservation Element recites each provision of Chapter 9J-5 requiring a goal, objective, and policy. As for objectives, various parts of the Conservation Element state, "It is the objective of the City of Tarpon Springs to . . .," and the Plan restates individual provisions of Rule 9J-5.012(3)(b). Responding to each objective reprinted from the rule, the Plan states various planning provisions. Eight Conservation policies follow Rule 9J-5.012(3)(c)1, which requires a policy identifying regulatory or management techniques for: "Limiting the specific impacts and cumulative impacts of development or redevelopment upon wetlands, water quality, water quantity, wildlife habitat, living marine resources, and beach and dune systems." The eight policies provide: Place all wetland areas in the preservation designation as shown on Schedule A, and ensure that no additional loss of wetland vegetation occurs; (Objectives 1, 2, and 11) [This is Conservation Policy 2 cited above. Require a minimum 15 foot buffer zone adjoining all wetlands; (Objectives 1 and 11) Identify design alternatives and funding sources for bayou erosion control; (Objective 3) Utilize wetlands for stormwater filtering in accordance with the discussion under Section II.D.5, FDER, SWFWMD, and Chapter 17-25 requirements for water quality, quantity, and use; (Objectives 1, 6) Restrict seawalling along the Gulf Coast shoreline, and require the replacement of seawalls in the Coastal High Hazard Area with stabilization techniques as exhibited by Figure 9 of this element in the event they are destroyed in excess of 50% of their replacement cost; (Objectives 1, 2, 3) Require all development or redevelopment adjacent to wetlands or upland natural areas to assess the impact upon wildlife in order to evaluate and eliminate or minimize adverse impacts; (Objectives 1, 2, 11) Require that post development runoff shall not exceed pre-development runoff for the 25 year frequency storm, 24 hour duration[,] in order to limit adverse impacts of water quantity and quality resulting from development or redevelopment; (Objectives 1, 2, 4 and 6 Other Conservation provisions are: Goal 2. Reduce shoreline conflicts through the land use planning process. Policy 11. Include the restoration and utilization of wetlands as a part of the Master Drainage Plan[.] (Objectives 4, 6) Policy 14j. Existing hazard mitigation programs that include shoreline restoration and enhancement, building code and floodplain regulations, development management techniques such as land regulations, development management techniques such as land use, zoning, and subdivision regulations, and other applicable hazard mitigation measures[,] shall continue to be implemented. These mitigation programs shall be amended, as necessary, to remain consistent with federal and state requirements. Policy 22. All hurricane evacuation routes will be clearly posted within the City of Tarpon Springs by the Tarpon Springs Fire Department[.] (Objective 14) Petitioners and Respondents dispute the meaning and effect of Conservation Policy 2. It is necessary to interpret Conservation Policy 2 before considering specific challenges to whether it is in compliance with various provisions of Chapter 163, Florida Statutes (Chapter 163), and Chapter 9J-5. The obvious purpose of adding the accessory-structure exception to Conservation Policy 2 was to liberalize land uses within the 30-foot aquatic lands setback. Petitioners argue that the amendment also liberalizes land uses within the separate 15-foot wetlands buffer. This argument is incorrect; the amendment does not affect the restrictions accompanying the 15-foot wetlands buffer. Before and after the amendment, the 15-foot wetlands buffer applies a separate land use restriction whose effect is not in any way dependent upon the existence of the 30-foot aquatic lands setback. Regardless of the amendment, if a proposed land use is within the 15-foot wetlands buffer, the land use is subject to the restrictions imposed by the buffer. The Future Land Use Element contains the following definition of "buffer": "A reserved area attractively landscaped and perpetually maintained as common open space, free of structures, impervious surface, roadways, storage, and other enclosures or appurtenances." The 15-foot wetlands buffer thus prohibits the conversion of open space to other uses, which would include swimming pools. The accessory-structure exception in no way lessens the restrictions imposed by the 15-foot wetlands buffer. After consideration of the definition of "buffer," it is clear that the accessory-structure exception would only allow the installation of a swimming pool in the portion of the 30-foot aquatic lands setback that is outside of the 15-foot wetlands buffer. Petitioners contend that the phrase, "existing seawall," is vague and ambiguous. The Plan fails to define these two words. As for the meaning of "seawall," the record contains some evidence that Tarpon Springs officials may have difficulty determining whether a deteriorated seawall constitutes an "existing seawall" or, effectively, riprap. Less likely, there may be some confusion as to whether a seawall fronted by riprap constitutes a seawall. However, it is at least fairly debatable that Conservation Policy 2 is not so vague or ambiguous as to be unenforceable with respect to its definition of an "seawall." The word, "existing," is not entirely free of ambiguity. The two best alternative interpretations are that "existing" refers to seawalls in existence when the subject Plan amendment becomes effective or that "existing" refers to seawalls in existence when the landowner files an application for a building permit for the accessory structure or when Tarpon Springs grants the permit application. The better interpretation of "existing" is that it refers to seawalls in existence when the landowner files his or her application or Tarpon Springs grants the application. Conservation Policy 2 addresses the installation of accessory structures, not seawalls. Although the accessory-structure exception is dependent on the presence of a seawall, the exception directly addresses accessory structures, not seawalls. Absent an explicit attempt to regulate seawall construction, nothing in the accessory-structure exception in Conservation Policy 2, or the policy itself, suggests an attempt to grandfather in only those seawalls in existence at the time of the adoption of the Plan amendment. The focus of the accessory- structure exception in Conservation Policy 2 is not on limiting the construction of seawalls, but on assuring that landowners will install accessory structures only behind functional seawalls. The more natural and practical reading of "existing" is thus that it applies to seawalls in existence as of the time of the filing or granting of the application. An interpretation that requires that the seawall be in existence as of the time of the granting of the permit serves the practical purpose of assuring that the seawall is in place when the accessory structure is installed. This important practical effect is not assured by the grandfathering-in interpretation, unless Tarpon Springs artificially stretches its interpretation of "existing" to mean only those seawalls in existence as of the effective date of the subject amendment and continuing in existence from that time through the date of the granting of the application. Lastly, Petitioners contend that the clause, "effectively eliminated the natural function of the shoreline," is meaningless. This contention is legitimate. No seawall effectively eliminates the natural function of a shoreline, if "effectively" means "completely" or even "substantially completely." There is no fairly debatable definition of "effectively," "eliminate," "natural function," or "shoreline" that can assign meaning to this clause. Tarpon Springs apparently intended to use the "effectively eliminated" clause to limit the applicability of the accessory-structure exception to uplands immediately landward of some, but not all, seawalls. However, the record offers no real guidance as to the grounds on which Tarpon Springs would distinguish between these two classes of seawalls. Undoubtedly, the natural functions of a shoreline can be substantially reduced by a seawall, but a seawall cannot eliminate all of the numerous natural functions of a shoreline. Two examples should suffice. Biologically, the installation of a seawall does not eliminate all of the organisms occupying the shoreline ecotone, including the seawall. Physiographically, the installation of a seawall does not eliminate the natural function of a shoreline as a geographic line of demarcation between uplands and open waters. However, the shortcomings of the "effectively eliminated" clause do not render Conservation Policy 2 meaningless. This attempt to differentiate between functional and nonfunctional seawalls is merely an attempt to create a nonfunctional-seawall exception to the accessory-structure exception. If the "effectively eliminated" clause were disregarded as meaningless, Tarpon Springs could continue to apply the accessory-structure exception without regard to the functional status of the seawall. Although, as far as this case is concerned, Tarpon Springs may attempt to distinguish between those seawalls that it believes have effectively eliminated the natural function of the shoreline and those seawalls that have not done so, the remainder of this recommended order will consider Conservation Policy 2 as though it would apply to all seawalls. Crucial subsidiary issues in this case involve the effect of the amendment on various natural resources. Given the proximity of the area affected by the 30-foot aquatic lands setback to wetlands and open waters, the environmental issues primarily involve the effect of stormwater runoff on nearby wetlands and open waters. In analyzing the stormwater runoff issue, the first issue involves the extent to which the accessory-structure exception may cause the conversion of pervious to impervious surface. However, the record fails to reveal two important pieces of information: the extent of the affected area that is presently pervious and the extent of this pervious area that will likely become impervious. In considering the extent to which pervious area will likely become impervious, due to the accessory-structure exception, it is necessary to consider the types of accessory structures that landowners will likely construct. Although it is possible that the accessory-structure exception may facilitate paving, which obviously creates an impervious surface, swimming pools are the most likely structures to be installed under the accessory-structure exception, which prohibits roofed structures. Where a swimming pool replaces pervious surfaces, the pool could adversely affect stormwater runoff. If one were able to project the pervious surface area annually to be converted to swimming pools, possibly one could model progressively more intense storm events and durations (but not in excess of the design storm event) to determine whether (and, if so, to what extent) the typical swimming pool would receive runoff, rather than divert it around the pool, as is normal construction practice. Other calculations would need to consider the capacity of the typical pool to collect additional water prior to discharging the water and the input received by wetlands and open waters, in relevant storm events, directly from rainfall and, if applicable, indirectly from runoff. The record contains no such analysis, nor is the issue so clearcut as to permit an inference that swimming pools, or other accessory structures, would, in storm events up to the design storm event, adversely affect the quality, quantity, rate, or hydroperiod of the runoff through nearby wetlands and into nearby open waters. The absence of a demonstrated relationship between the accessory-structure exception and adverse environmental effects is independent of the area of land affected by the accessory- structure exception. The absence of such a demonstrated relationship is further underscored, though, by the relatively small area of uplands that would likely be converted annually to swimming pools. Although the record contains varying estimates of the amount of land involved, Petitioners have failed to demonstrate that the area of affected land is more than minimal. In terms of water quality, the record does not establish the net effect of converting the pervious portion of the affected area into pool areas. If grassy or planted, the pervious area may receive undisclosed infusions of insecticides, herbicides, and fertilizers. Undisclosed amounts of these substances may enter the nearby wetlands and open waters directly in runoff, leading to adverse environmental effects. The pool areas probably will receive undisclosed infusions of pool chemicals. Undisclosed amounts of these substances may enter the nearby wetlands and open waters directly in spillage and indirectly through evaporation and atmospheric deposit, leading to adverse environmental effects. The state of the record precludes findings, at a level of probability as to exclude fair debate, with respect to which land use would likely have a greater impact on water quality. Other environmental issues raised by Petitioners are insubstantial. For instance, the record does not disclose the significance of the loss of assertedly contiguous wildlife corridor following the conversion into swimming pools of 15-foot wide strips of backyards running parallel to the shoreline starting at a distance of about 15 feet from the edge of the wetlands. On these facts, Petitioners cannot show, to the exclusion of fair debate, that Tarpon Springs' planning decision to adopt the accessory-structure exception to the 30-foot setback is inconsistent with the various environmental and planning criteria of Chapters 163 and 9J-5. This deferential evidentiary standard acknowledges the basically political or legislative nature of the process by which local governments plan land uses. In general, to overturn this political or legislative process, Petitioners must make a more definitive showing of environmental or planning harm caused by the adoption of the subject Plan amendment that will allow landowners to construct swimming pools in their backyards relatively close to open water. The absence of such a showing generally precludes a determination that the subject Plan amendment is inconsistent with the relevant criteria of Chapters 163 and 9J-5--such as supporting data and analysis, internal consistency, and other specific provisions. For instance, on the basis of the present record, it is impossible to determine whether the conversion of pervious surfaces to swimming pools would be environmentally harmful, especially on the scale reasonably envisioned by Tarpon Springs. This state of the record precludes a finding that Petitioners have shown, to the exclusion of fair debate, the alleged environmental inconsistencies that they must show in order to prevail. Petitioners have failed to prove to the exclusion of fair debate that the subject Plan amendment is inconsistent with Sections 163.3177(6)(g)1-5 and 10, and Rules 9J-5.012(3)(b)6 and 8 and (c)2, 3, and 7. These criteria require local governments to adopt plan provisions serving various planning, environmental, aesthetic, and public-safety criteria. No plan amendment addressing a single topic, like the accessory-structure exception, is required to address all of the criteria contained in Chapters 163 and 9J-5. It is possible that the effect of a plan amendment addressing a single topic may be to cause the plan, as amended, to fail to satisfy certain criteria. If so, the more likely challenge would be that the plan amendment is internally inconsistent with the various plan provisions that, prior to the amendment, satisfied the criteria in question. Petitioners have failed to prove to the exclusion of fair debate that the subject Plan amendment is inconsistent with the criterion of Sections 163.3177(8) and (10)(e) and 163.3178(2)(b) and Rule 9J-5.005(2). As previously found, the data and analysis contained in the record would support a planning decision to adopt the accessory-structure exception, even without the functional-seawall exception, or to reject the accessory-structure exception. Petitioners have failed to prove to the exclusion of fair debate that the subject Plan amendment is internally inconsistent with Conservation Goal 2 or Conservation Policies 2, 3, 6, 11, 14j, and 22. As already noted, there is no inconsistency between Conservation Policy 2, as amended, and Conservation Policy 3, which imposes the 15-foot wetlands buffer. To the extent that Petitioners have adequately raised an issue of internal inconsistency between the subject Plan amendment and Plan provisions governing the coastal high hazard area, the record does not support a finding that the accessory-structure exception would result in a material increase of either persons or property in the coastal high hazard area. Petitioners also assert that the process by which Tarpon Springs adopted the subject amendment was inconsistent with the criterion of public participation. In challenging the process by which Tarpon Springs adopted the subject amendment, Petitioners assert that Tarpon Springs failed to comply with the Plan Administration Element, which Tarpon Springs adopted as part of its Plan. As described by Petitioner Constance S. Mack in her proposed recommended order, this element generally requires that Tarpon Springs notify all landowners affected by a proposed amendment, encourage public participation, and consider and respond in writing to comments from the public. The record reveals an imperfect planning process. Tarpon Springs probably considered some erroneous data and analysis. Tarpon Springs ultimately adopted a Plan amendment containing the meaningless nonfunctional seawall exception to the accessory-structure exception. Petitioners correctly contend that little real dialogue took place between them and Tarpon Springs officials during the planning process. Communications between the two sides were less than ideal. By the end of the planning process, relations between the opposing parties deteriorated to the point that the Tarpon Springs planning director was, at times, treating legitimate attempts by Petitioners to participate in the planning process as unreasonable attempts at interference, and Petitioners were, at times, equating an unfavorable planning decision as a denial of public participation. But Tarpon Springs nonetheless satisfied the minimum criteria involving public participation. Petitioner Constance S. Mack accurately concedes in her proposed recommended order that Tarpon Springs allowed public participation at a "minimal level." The record reveals that Tarpon Springs complied with all state law governing public participation. Tarpon Springs also materially complied with all local law governing public participation. Any shortcomings in individual notice notwithstanding, published notice effectively put the community of Tarpon Springs on notice of the proposed amendment. The origin of this planning exercise was in a prior case that had been recently concluded. Tarpon Springs is a small community that, as evidenced by Petitioners' presentation of a petition with over 225 signatures protesting the proposed amendment, was in fact well informed of the ongoing planning process involving accessory structures. The record reflects that Tarpon Springs entertained Petitioners' objections, and the record supports the inference that Tarpon Springs considered these objections. In a perfect planning process, Tarpon Springs would have opened a dialogue with Petitioner Lisa Mack and responded to her carefully developed aesthetic vision of the future of Tarpon Springs' waterfront with an aesthetic vision of its own. In a better planning process, Tarpon Springs would have given more thoughtful consideration to Petitioners' objections to the language of the accessory-structure exception and eliminated some of the ambiguities present in the subject Plan amendment. In the end, the planning process resulted in a decision by Tarpon Springs to allow waterfront landowners to build swimming pools in their backyards, relatively close to the water. Petitioners worked hard during the planning process to achieve a different result. However, these facts, together with the shortcomings in the planning process, do not describe a planning process that is inconsistent with the criterion of public participation. Petitioners thus did not prove, to the exclusion of fair debate, that Tarpon Springs failed to give Petitioners reasonable notice of the proposed amendment and a reasonable opportunity to participate in the planning process. Petitioners failed to prove to the exclusion of fair debate that the adoption process failed to satisfy the public- participation criteria of Sections 163.3181(1) and (2) and Rule 9J-5.004.
Recommendation It is RECOMMENDED that the Department of Community Affairs enter a final order determining that the subject Plan amendment is in compliance. DONE AND ENTERED this 1st day of June, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1999. COPIES FURNISHED: Laura Johnson 30 Central Court Tarpon Springs, Florida 34689 Sam H. Mack 23 Central Court Tarpon Springs, Florida 34689 Thomas R. Cuba Qualified Representative Post Office Box 3241 Saint Petersburg, Florida 33731 Marika Samarkos 944 Bayshore Drive Tarpon Springs, Florida 34689 Lisa L. Mack 23 Central Court Tarpon Springs, Florida 34689 Thomas J. Trask Frazer Hubbard Post Office Box 1178 Dunedin, Florida 34698 Karen Brodeen Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100
Findings Of Fact Petitioner Melvin J. Laney is the owner of Rodriguez Key which is located approximately one and one-half miles from Key Largo, Florida, in the Atlantic Ocean. The island consists of about 170 acres and is undeveloped. It is approximately 9/10 of a mile long and 3/10 of a mile wide. By application, dated July 31, 1978, Petitioner requested a permit from Respondent Department of Environmental Regulation (DER) to conduct specified activities incident to the establishment of a primate breeding and research farm. The proposed activities included the construction of a floating pier, filling a sunken barge which is located 100 feet from the shoreline with coral rock and riprap, constructing two buildings on stilts on the east end of the island, clearing some 8.9 acres of black mangroves to provide trails for the placement and servicing of cages, installation of prepackaged waste treatment units, and temporary cages. (Testimony of Petitioner, Exhibits 1,8) DER's South Florida branch office personnel reviewed the application and issued an intent to deny the requested permit by letter of March 8, 1979, for the reason that Petitioner had failed to obtain local approval required pursuant to Section 253.124,. F.S., and that violations of State water quality standards could be expected by the proposed project. Further, the notice noted that the project would result in adverse effects to marine productivity and wildlife population contrary to the public interest under Chapter 253. Petitioner thereupon requested a hearing. (Petition, Exhibit 6,8) Petitioner plans to bring rhesus, squirrel, and other research primates into the State for the purpose of establishing a breeding and research farm on Rodriguez Key. The primates would be owned by sponsors who would pay Petitioner to provide housing, care and associated services. The project is designed to meet the needs of researchers for the testing of vaccines and other scientific purposes. There is currently a shortage of primates in this country due to a 1978 embargo on the export of such animals by the government of India who had previously been the primary supplier of research primates. (Testimony of Petitioner, Darrow, Exhibit l) Petitioner intends to fill a partly sunken barge near the northeast shoreline with boulders and riprap, cover it with a concrete floor, and construct a floating pier approximately 130 feet long between the shore and the barge for off-loading of supplies and equipment. The project contemplates the construction of an animal care house and a residence, both to be placed on stilts which will each contain a maximum of 10,000 square feet of space. No filling or dredging is planned for either structure. This is a modification from the original permit application which called for some 3,000 cubic yards of fill at the building site. At the western end of the island, Petitioner plans to install 16 rows of prefabricated cages with 64 cages per row, which represents a total area of approximately 12.48 acres. About 4.16 acres of that area will be cleared or otherwise disrupted to place and connect the cage rows. The cages will be secured and there is little likelihood that the animals will escape. Under a current permit from the Fresh Water Game and Fish Commission, the holding cages must be constructed to withstand hurricanes, surge and wind, and provide adequate protection for the animals during such storms. They must also meet or exceed minimum pen specifications established by the Commission. The permit submitted in evidence expired on June 30, 1981. The cages will be prefabricated and placed on metal pilings which are attached to underground rock. There will be troughs located underneath a grate floor for animal wastes which will be collected and pumped to a sewage disposal system. In order to take supplies, materials, and animals to and from the cage area, Petitioner intends to clear a 20-foot wide perimeter "trail" around the island which would be attached at both ends by lateral similar trails. The total distance of the trails is approximately 9,000 feet. The need for a perimeter trail is to deliver materials on one side of the island, service the animals, and then leave by a different route for the purpose of transporting employees, ill animals, or transporting of any animal that might affect the control area for testing and conducting vaccine research. The perimeter trails are designed to be no closer than 75 feet from a red mangrove fringe border around the island. For transportation purposes, it is proposed to use gasoline powered "all terrain" wheeled vehicles which will traverse the trails along two parallel two-inch diameter cables suspended horizontally 36 to 48 inches above the ground level. The cables will be attached to concrete anchors consisting of four inch by four inch steel tubes which are placed at 100 foot intervals along the trails. The tubes will be either hand-driven into subsurface rock several inches or driven by means of a portable pile driver. The tubes will additionally be supported by a concrete block "dead man" attached to a 5/8-inch cable on either side of the tubes and placed underground. Turning platforms would be placed at trail intersections on top of the cable road so that a vehicle could drive upon the platform and execute a turn to a connecting cable road. The low pressure tread vehicles used to traverse the roads will be equipped with shoes or flanges on the inside of the tire rims to securely ride on the pretensioned cables. They will also have low pressure pneumatic tires. The vehicles will also be used in interior areas where mangroves are not present. They will ride on the ground or upon metal plates. These areas are covered with about 9,000 square feet of batis (saltwort) cover which eventually will be killed by vehicle use. Batis is important for sediment stabilization and its removal can cause siltation problems in waters surrounding the island. The need for a 20-foot swath for the cable road is explained by the fact that transport of the 17-foot cages must be accomplished by placing them sideways on the transporting vehicles in order to install and periodically provide service, repair or replacement. A soil study made in representative areas of Rodriguez Key except the west end shows that coral rock exists at levels of approximately 11 to 15 feet below the ground surface, thus necessitating the use of pilings for support purposes rather than shallow footings. Although no soil borings were taken at the west end of the island, the soil expert is of the opinion that the borings reflect general rock characteristics of the entire island. Petitioner's civil engineer who designed the current cable road system prepared several alternative methods of construction, and is of the opinion that suspension of the cables at a height of 15 feet instead of three to four feet as currently planned would be feasible except for cage servicing purposes. A further alternative that was proposed by Petitioner's engineer expert is to place the cages at the east end of the island and utilize a boardwalk constructed of an eight-foot wide precast concrete slab walkway as a boardwalk for positioning of the cages. Six inch by six inch timber posts would be driven to the hardrock layer for a minimum of ten feet to anchor the Platform. The engineer testified that this alternative would be cost effective if used in lieu of the cable road. Respondent's Environmental Specialist testified that such a modification to concentrate the project on the east end of the island would be recommended because it would eliminate the cable road and its adverse environmental consequences Rodriguez Key is almost completely vegetated by mangroves with a red mangrove fringe around the perimeter and black mangroves on the higher interior areas. Some of the red mangroves are 100 to 150 feet in height and the black mangroves range from 20 to 40 feet high. In the east center of the island is an open area of batis, and red mangroves are located in the center and west end of the island. White mangroves are also present in the south side of the island. Throughout the island, there are watermarks on trunks and prop roots ranging from four inches to six inches, and an abundant growth of brown algae. Such algae requires regular submergence to exist. No significant forms of wildlife are present on the island. Batis is a submerged species which is important for sediment stabilization. In order to clear the 20-foot wide trails with cable suspensions as low as 36 inches above ground, it will be necessary to prune or cut back a large number of mangroves to that height. However, the prop roots of the red mangroves extend above six feet in some areas. If the trees and roots are cut to a three-foot height, it is unlikely that they would survive. Red mangroves produce leaf detritus which forms a part of the food chain for marine life. Such trees are island stabilizers which provide filtration and uptake of nutrients associated with runoff and intertidal waters. The waters surrounding the island are categorized as Class III waters under State regulations. The presence of brown algae on prop roots is evidence that the island is regularly inundated to some degree. Turtle grass, which is an indicator of regular tidal flushing, is in abundance on the flats waterward of the island but not found in the interior. During a visit to the Rodriguez Key in 1981, DER personnel observed standing water across the entire island to a depth of from one inch to one foot at high tide. (Testimony of Carroll, Key, Helbling, Exhibits 6, 8) Thirteen public witnesses testified at the hearing, including residents, landowners, and representatives of housing developments in the Key Largo area. They were uniformly opposed to the proposed project for a variety of reasons. Primarily, they fear that the presence of primates on the island a short distance away from Key Largo will produce excessive noise, odor, and water pollution in the adjacent waters which are used for recreation. Additionally, some are of the opinion that their property values will decrease as a result of the activity. A District Naturalist employed by the Department of Natural Resources at the nearby Coral Reef State Park testified that her agency opposes the proposed activity due to concern that it will cause degradation of water quality in the surrounding waters and that increased boat traffic could damage the shallow coral reef beds which lie near the State park. There is also general apprehension among the nearby residents that a hurricane could destroy any facilities on Rodriguez Key and cause damage to their property. A petition signed by a large number of Key Largo residents reflects their opposition to Petitioner's use of Rodriguez Key as a primate breeding and research facility. (Testimony of public witnesses (Hearing Officer's Exhibit 2) Exhibits 9-10) There probably would be no odor problem connected with the presence of monkeys on Rodriguez Key if the cages are regularly cleaned and fecal waste is disposed of according to sanitary methods. Although primates are inclined to vocalize at feeding time or when strangers appear, they do not screech at great length and the presence of trees and other foliage would modify the sound. (Testimony of Darrow)
Recommendation That the application of Petitioner Melvin J. Laney, as modified in the above Conclusions of Law, be approved and that a permit authorizing the requested activities be issued pursuant to Chapter 403, F.S., together with water quality certification under PL-500, subject to standard conditions reasonably necessary for prevention of pollution. DONE and ENTERED this 14th day of September, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1981. COPIES FURNISHED: Ross A. McVoy, Esquire Madigan, Parker, Gatlin, Swedmark and Skelding Post Office Box 669 Tallahassee, Florida 32302 Ray Allen, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Honorable Victoria Tschinkel Secretary, Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 =================================================================
The Issue Whether the orders for corrective action DER proposes to enter should be made final against the persons to whom the notice of violation is addressed for the reasons alleged in the notice?
Findings Of Fact Eugene and Marian O. Black, Thomas A. Johnson, Dennis Black, Daniel V. Black and Ronald E. Black do business under the name Gulf Bait & Tackle. Mr. Johnson and Mr. R. E. Black fish for bait from boats that the business moors in a canal on Hernandez Point in Santa Rosa County. The canal enters Class II waters approved for shellfish harvesting in Escambia Bay near East Bay. By 1986, shoaling at the mouth of the canal began to interfere with ingress and egress. The Blacks attributed the shoals to the failure of the sea walls along the canal sides near the mouth. Three hurricanes in rapid succession had left a tattered remnant of the creosote-soaked wooden structures. Vandalism and a ditch the county dug behind the western wall, which stood on county property, also contributed. In October of 1986, perhaps half the sea wall paralleling the eastern canal bank survived. At the southern end of this segment, the sea wall turned a corner and ran east till it reached shore. What had been land inside the corner was badly eroded. Only the four easternmost panels of the southern portion of the sea wall east of the canal remained intact. Water moved freely past wooden piles resembling, in their disconnectedness, a skeleton which most of the flesh had let go. DER's Exhibit No. 1. On January 28, 1986, the Blacks bought "Lot 37, Garcon Subdivision," the Partly submerged parcel once protected by perpendicular seawalls east of the canal. DER's Exhibit No. 8. West of the canal mouth, the Blacks volunteered their time and equipment to install a concrete seawall abutting the county property. Neither the county nor the Blacks sought or obtained a permit for this work. Joseph Charles Harp, a dredge and fill inspector in DER's employ, testified that the western seawall was exempt from permit requirements, although it extends into the bay beyond the mean high water line. Lot Resold The Blacks and Mr. Johnson agreed to sell Lot 37, Garcon Subdivision, to James F. Richardson and Susan M. Richardson for what they had paid for it, and to construct a sea wall, if the Richardsons would furnish materials for the job, as Santa Rosa County had done, for the sea wall west of the canal. In keeping with this agreement, a deed was executed in favor of the Richardsons, DER's Exhibit No. 9, who furnished materials with which, in two weeks' time, the Blacks constructed a vertical, concrete seawall and dredged the canal, using a bulldozer, a crane and a dragline. Before the work was undertaken, neither the Blacks nor the Richardsons sought or obtained a DER permit. The new seawall stands in about the same place the wooden seawall on the eastern side of the canal, which "had been nonfunctional for years," once stood, consisting, as the older structure had, of two perpendicular sections. The new southern leg runs east along a line about one foot south of its predecessor, until it intersects the shore of the bay. DER Finds Project Work on the Richardsons' seawalls was almost done when it came to DER's attention on April 1, 1987. In conversations on site, the Blacks asked Mr. Harp, the dredge and fill inspector, if they could go forward with capping the seawall. The seawalls were in place, and sand dredged from the canal had been deposited between the seawalls and the mean high water line, but the walls had not yet been capped. Mr. Harp, who in any event lacked authority to order work stopped, told them they might. Nobody from DER ever told the Blacks, Mr. Johnson or anybody else that seawalls east of the canal would not require a DER permit. When DER's Mr. Harp told Whitfield Casey that Mr. Casey could repair his own seawall, without a permit, he made it clear that the exemption depended on the seawall's being "functional," when repaired. After the sea wall had been built, Mr. Harp suggested making application for a dredge and fill permit. He assisted Mr. Richardson in filling out an application for an after the fact permit. The Blacks wrote the $100 check in favor of DER that accompanied the Richardsons' application for a permit to dredge and fill, after the fact. Resold Lot Resold In a telephone conversation with Mr. Richardson Mr. Harp learned, about three weeks after the fact, that Mr. Johnson and the Blacks were once again the owners of Lot 37. It was in the course of this conversation that Mr. Richardson relayed an offer to place riprap against the south side of the southern seawall. Having decided against building on Lot 37 after all, Mr. and Mrs. Richardson had reconveyed to Mr. Johnson and the Blacks by warranty deed filed at the courthouse in Milton on May 4, 1987. The way the Richardsons calculate it, the Blacks owe them about $7,000, and they are sure the Blacks and Mr. Johnson will do the right thing by them. In the same telephone conversation in which he apprised Mr. Harp of the reconveyance, Mr. Richardson told him he should, in the future, deal with Mr. Johnson and the Blacks. Mr. Harp understood him to ask that the pending application for an after the fact permit be withdrawn. At hearing, however, Mr. Richardson testified that he never requested that the application be withdrawn. DER sent Mr. Richardson a check for $100, refunding the permit application fee. The check reached him in North Carolina in July, and eventually one of the Blacks. The status of the application was apparently unknown or unclear to Messrs. R. E. Black and Johnson before the final hearing in the present case, however. They expressed a desire to pursue a permit application. Enforcement Proceedings In August of 1987, a meeting among various DER employees, Mr. Johnson and the Blacks yielded more heat than light, and the notice of violation with which the present proceedings began ensued. Perhaps friction at the meeting also inspired the false and wholly baseless insinuations or allegations against DER personnel which mar the petition for administrative proceedings.
The Issue The basic issue in this case is whether the Petitioner is entitled to the issuance of an individual construction permit for a proposed stormwater management system intended to serve Phase II of the Petitioner's land development project.
Findings Of Fact Based on the admissions and stipulations of the parties, on the exhibits received in evidence, on the testimony of the witnesses at the hearing, and on the matters officially recognized, I make the following findings of fact. On October 8, 1985, the applicant filed a notice of intent to utilize a general permit for the construction of a new stormwater discharge facility. This request was denied by the Department of Environmental Regulation by letter of November 7, 1985. Subsequently, on November 21, 1985, the applicant filed an individual construction permit application, which was later supplemented with additional information which was requested by the Department. This original application was the subject of an April 9, 1986, notice of an intent to deny. The basis for proposed denial was that the discharge elevation from the proposed stormwater management system was too low in relation to predicted stage elevations of Little Lake Santa Fe and Lake Santa Fe and thus efficient operation of the stormwater management system would be prohibited when the discharge elevation was lower than the elevation of the lakes. In response to the Department's concerns and suggestions, the applicant modified its application on August 26, 1986, and submitted the modification to the Department and provided a copy to SFLDA. Upon review of the August 26, 1986, modifications to the application, the Department changed its position and at the time of the hearing in this case, the Department proposed to grant the application, as modified. The proposed stormwater management system is designed to serve all of Phase II of the Santa Fe Pass development, which consists of approximately 20 acres. Phase II contains an access road, tennis and racquet ball facilities, 50 cabanas or villas (constructed as duplexes) which will serve as overnight accommodations for a private club, a restaurant and other common buildings for recreational use, and a dry boat storage facility. These light intensity uses proposed for Phase II should result in relatively low concentrations of pollutants in the stormwater runoff. The impervious surface resulting from the construction of Phase II will involve less than 5% of the overall surface area contained in this phase of the development. In addition to serving Phase II, the proposed stormwater management system will also treat approximately 26,000 cubic feet of runoff generated from 43 acres of the Phase I residential development in a basin to be constructed in the northwest corner of Phase II. This Phase I acreage contains infrastructure and a few residential units but many of the one-acre, single-family lots have yet to be constructed. The treatment of runoff from this Phase I acreage is not required pursuant to Chapter 17-25, F.A.C. The construction of the holding facility will have the effect of improving stormwater runoff which currently discharges directly through a swale into Santa Fe Lake. This proposed improvement to the existing system is the result of an agreement between the developer and Alachua County. There are basically four types of treatment being provided in the proposed stormwater management system: Runoff from the tennis/racquet ball facility will be provided in the detention/filtration basin; The first 1 1/2 inches of runoff from the roadway which provides access to the project will be retained in eight-foot gravel shoulders underlain with sand; Retention basins will also be constructed in association with each of the overnight residential structures with treatment being provided by infiltration of runoff generated from the roofs of these structures; and One and one-half inches of runoff from 4.56 acres of Phase II will be treated (via extended settling biological uptake and adsorption) within a wet detention facility consisting of a man-made lake and a natural wetland/transitional area. Every aspect of the proposed stormwater management system exceeds the Department's design and performance criteria, and the evidence clearly establishes that the facilities comply with the best management practices and performance standards outlined in Chapter 17-25, F.A.C. The recreational facilities, roads, and residential units are treated by facilities which will provide adequate detention with filtration volumes or retention volumes. Section 17-25.04(5), F.A.C., specifies that an applicant must provide treatment for the first 1/2 inch of runoff or runoff from the first 1 inch of rainfall. In the instant case, the storage volume is increased by 50% because the receiving waters are designated Outstanding Florida Waters. Thus, runoff from the first 1 1/2 inch of rainfall from the tennis/racquet ball courts must be detained and filtered before being discharged to Lake Santa Fe. The required treatment will be provided in the proposed compensation basin and additional treatment will be provided in a 150-foot swale which will convey these treated waters to Santa Fe Lake. Similarly, in the case of the road surfaces and impervious roofs, the system is designed to collect and retain 1 1/2 inches of runoff from these facilities and treat that water through percolation into the soils before it moves laterally to the lake. The wet detention system is an innovative equivalent treatment proposal authorized in the equivalent treatment provisions in Section 17-25.04(5), F.A.C., and the design criteria for the proposed system has been promulgated by the Department based on the successful experiences of the South Florida Water Management District, which has for a number of years successfully permitted wet detention facilities. The proposed man-made lake has been properly sized and designed so as to maximize the physical, biological, and chemical processes which result from detaining stormwater runoff and promoting contact between the runoff and natural substrates. In the instant case, the man-made lake will provide the first form of treatment. It will then discharge at a specified elevation into a 19,000 square foot wetland/transitional area where natural polishing filtration functions will be performed by existing macrophytes and vegetation before being discharged through a control structure to Little Lake Santa Fe. In order to insure no threat of water quality degradation in the use of wet detention systems, the Department has promulgated policies and design criteria which require a doubling of the storage volumes which would otherwise be required should a more traditional retention or detention with filtration approach be utilized. For purposes of the instant case, this doubling results in the applicant treating 1 1/2 inches of runoff before it allows discharge into Little Lake Santa Fe, and that storage volume is twice (.75 inches) that which would otherwise be required even with the additional 50% treatment required for waters discharging into Outstanding Florida Waters. By employing the wet detention equivalent treatment approach and raising the control discharge elevation to 141.25 feet, the applicant has satisfactorily addressed the concerns that were previously expressed by the Department's original proposed agency action. The Petitioner's proposal, as modified, complies with all Department permitting criteria and there are no constraints or limitations which would preclude the system from operating as designed. The design for this system includes ample considerations for sediment, turbidity, and erosion controls during the construction phase of this project, and the operation and maintenance schedule will ensure continuing compliance with Department criteria. The design is sound, as demonstrated by the fact that analogous facilities have functioned as claimed. The biological and chemical interaction of the runoff with macrophytes contained in the littoral zones of the man-made lake and in the wetland/transitional polishing area will provide valuable nutrient assimilation and uptake. These natural treatment processes ensure that water quality standards will be satisfied and that no adverse water quality degradation will occur with respect to the receiving waters. The concentrations of pollutants in the waters discharged from the stormwater management facility would not exceed Class III water quality standards and would, in fact, be better than the ambient water quality documented in Little Lake Santa Fe and Lake Santa Fe. Even though the proposal, as modified, meets all of the Department permitting criteria, the proposal would be even better if the following changes were made to it. The oil skimmer device should be metal rather than wood. The littoral zone planting should be at 1 1/2 foot centers for the limited area east of the man-made lake where it connects to the natural wetland/transitional area. Reasonable storm event related monitoring should be conducted for one year following the completion of construction of the impervious surfaces specified in the application. Parameters to be tested should include suspended solids, turbidity, pH, conductivity, dissolved oxygen, nutrients, lead, zinc, and hydrocarbons. Samples (time weighted composite) should be collected at the outfall structure while the system is operating following four storm events during the year. The applicant does not object to making the changes described in this paragraph. The SFLDA's concerns were limited largely to the prospects of a washout due to an extraordinary storm event and doubts it possesses relative to the maintenance required for the system. There was no evidence presented, however, which indicate that a washout or severe disruption to the management system would occur except in extremely rare circumstances such as those attending a 100-year storm. The Department's rules and permitting criteria governing stormwater management systems do not, however, require an applicant to prevent discharges from stormwater management systems during extraordinary events, such as a 100-year storm. The applicant has, in this case, provided the necessary reasonable assurances that this facility will function as designed. The maintenance schedule presented by the applicant is facially sound, and the experts agreed that maintenance of the wet detention system would be minimal. The maintenance and operational features of this proposal are important; however, they are straightforward and the property owners association, which shoulders the burden of compliance, is properly equipped with the powers and authorities to insure successful implementation.
Recommendation Based on all of the foregoing, it is recommended that the Department of Environmental Regulation issue the requested stormwater discharge construction permit with the Department's standard permit conditions and with special conditions requiring the changes described in paragraph 7 of the findings of fact, above. DONE AND ENTERED this 24th of November 1986 at Tallahassee, Florida. MICHAEL M. PARRISH, 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 24th day of November 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-1445 The following are my specific rulings on each of the findings of fact proposed by the parties. Findings proposed by Petitioner and Respondent Paragraphs 1, 2, and 3: Accepted in substance with some unnecessary details deleted. Paragraph 4: Accepted. Paragraphs 5, 6, and 7: (There are no paragraphs 5, 6, and 7 in the proposed findings submitted by the Petitioner and Respondent.) Paragraphs 8, 9, and 10: Accepted. Paragraphs 11 and 12: Accepted in substance with some unnecessary details and editorial remarks deleted. Paragraph 13: The first sentence of this paragraph is rejected as constituting argument rather than proposed findings. The remainder of the paragraph is accepted in substance. Findings proposed by Intervenor Paragraphs 1, 2, and 3: Accepted in substance with some unnecessary details omitted. Paragraph 4: Rejected as subordinate, unnecessary details (much of the material from this paragraph has been included in the introductory portion of this Recommended Order.) Paragraphs 5, 6, the seven unnumbered paragraphs following paragraph 6, and 7: Accepted in substance. Paragraph 8: Rejected as constituting primarily summaries of conflicting evidence and argument rather than proposed findings of fact. Further, portions of this paragraph are contrary to the greater weight of the evidence. Paragraph 9: Rejected as irrelevant. Paragraph 10: Rejected as irrelevant or as subordinate unnecessary details. Paragraph 11: Rejected as constituting a summary of testimony rather than proposed findings of fact. Also rejected as being inconsistent with the greater weight of the evidence. Paragraph 12: Rejected as irrelevant or as subordinate unnecessary details. Paragraphs 13 and 14: First sentence rejected as unnecessary commentary about the record. The remainder is for the most part accepted in substance with deletion of some unnecessary details and with modification of some details in the interest of accuracy and clarity. COPIES FURNISHED: Frank E. Matthews, Esquire Kathleen Blizzard, Esquire HOPPING BOYD GREEN & SAMS Post Office Box 6526 Tallahassee, Florida 32314 Bradford L. Thomas, Esquire Assistant General Counsel 2600 Blair Stone Road Tallahassee, Florida 32301 Timothy Keyser, Esquire Post Office Box 92 Interlachen, Florida 32048 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue General Project Description 6 Economic Benefits and Cost Savings from Project 7 Fuel Cost Savings from Conversion to Orimulsion 7 Socioeconomic Impacts and Benefits of the Project 10 Project Site and Vicinity 13 Lan Use and Comprehensive Plan Consistency 14 Existing Plant and Facilities 16 Orimulsion Conversion Project; Modified and New Facilities 20 Fuels and Fuel Delivery, Storage and Transportation 20 Air Emission Controls 22 Water Uses and Treatment 24 By-Product Reuse and Disposal 24 Rail and Road Improvements 28 Surface Water Management Systems 29 Project Construction and Schedule 30 Transportation 31 Noise Impacts 34 Archaeological and Historic Sites 34 Air Emissions, Controls, and Impacts 34 Existing and Proposed Emissions 34 Best Available Control Technology for 36 Nox Air Quality Impact Analysis 45 Effect of Proposed NOx Emissions on Ozone Levels 46 Effect of Proposed NOx Emissions on Water Quality 51 Human Health Risks Associated with Proposed Air Emissions 57 Plant Water Supply and Use 59 Water Supply 59 Cooling Pond 62 Impacts of Groundwater Withdrawals and Discharges 64 Wetland Impacts and Mitigation 68 Impacts to Flora and Fauna Including Listed Species 70 Impacts of Water Withdrawals on Little Manatee River and Tampa Bay 71 Potential Impacts of Fuel Spills 75 Spill Prevention 76 Spill Mitigation 79 Ecological Effects of Orimulsion Released in Tampa Bay 87 COSAP's Comparative Ecological Risk Assessment (CERA) 90 COSAP CERA Conclusions 92 Peer Review of COSAP Research and Conclusions 92 Effects of Estrogenic Compounds Following a Spill 93 Summary of Comparative Spill Risks 95
Findings Of Fact General Project Description FPL proposes to convert its existing 1600 megawatt (MW) power plant in Manatee County, Florida (the Plant), to the use of Orimulsion. The existing Plant currently operates only on relatively expensive low-sulfur fuel oil. The conversion of the Plant to the use of Orimulsion will realize significant savings in fuel costs to FPL's customers because Orimulsion will be supplied at prices much lower than the current costs for the fuel oil burned at the Plant. As a result, the Project will allow FPL to increase the average annual capacity factor of the Plant from its historical level of 30 percent up to 87 percent. Orimulsion is a mixture of bitumen, a heavy hydrocarbon, and water. Orimulsion is produced in Venezuela and will be supplied to FPL under a 20-year contract with Bitor America Corporation (Bitor). The new fuel will be shipped by Bitor America to Tampa Bay, unloaded by FPL at an existing FPL fuel terminal at Port Manatee, and sent to the Plant via an existing pipeline. The Project will involve installation of new pollution control equipment, new combustion controls, and efficiency enhancements to the existing boilers. The air pollution control equipment will be designed and constructed by Pure Air, a partnership of Air Products and Chemicals Inc. and Mitsubishi Heavy Industries America Inc. Pure Air of Manatee, a subsidiary of Air Products and Chemicals, will operate the pollution control equipment. Other than this equipment and ancillary facilities, few changes to the existing plant itself will be required. Economic Benefits and Cost Savings from Project Fuel Cost Savings from Conversion to Orimulsion The conversion of the Plant to burn Orimulsion is the best way that FPL has found to reduce the cost of the electricity it produces and to reduce FPL's dependency on any single type of fuel. The conversion is projected to result in approximately $4.0 billion (or $1.5 billion net present value in 1998 dollars) of savings to FPL's customers over 20 years under FPL's base case, or most likely fuel price forecast. These savings represent the net amount by which FPL's savings in fuel costs ($4.4 billion) and SO2 emission allowance costs ($169 million) are projected to exceed FPL's revenue requirements for the Plant modifications over 20 years ($180 million) and increased operation and maintenance costs ($382 million). FPL sought advance approval from the Florida Public Service Commission (FPSC) of the method for recovering the costs of the Project and the method of passing through to its customers the Project's net savings. In Order No. PSC-94-1106-FOF-EI, issued September 7, 1994, the FPSC found that "FPL's plan to convert its two Manatee units to burn Orimulsion is reasonable and prudent." Under that order, the net savings from the Project will be passed on directly to FPL's customers through reduced charges in the fuel cost recovery clause portion of customers' monthly bills. These fuel savings result because Orimulsion is priced by contract equivalent to the price of coal delivered to the St. Johns River Power Park plant in Jacksonville. The price of that coal is much lower than the price of oil or natural gas that FPL purchases, and coal prices are forecast to remain low and stable in the future. It is expected that the Plant's reduced fuel cost will cause the Plant to run more often under the principle of economic dispatch by which FPL operates its generating system. Orimulsion burned at the Plant will also displace the burning of higher- priced fuels elsewhere on FPL's system, to the extent not required as a result of population growth or changes in arrangements for the purchase of power, as other units using higher-priced fuels are operated less frequently. To determine whether the Project would provide savings under extreme conditions, FPL performed what it called an "acid test" analysis which assumed that future prices of oil and gas would not continue to diverge from the price of coal and Orimulsion. Under this conservative (though unlikely) scenario, the Project would still produce approximately $655 million ($261 million net present value in 1998 dollars) of savings to FPL's customers over 20 years. The Project is a continuation of the effort that FPL began in the late 1970's to obtain a balanced fuel mix, so that future volatility in the price of oil, and events such as the oil shocks of the 1970's, would not affect the cost of electricity to FPL's customers. FPL has reduced the amount of oil-fired generation in its fuel mix from 56 percent in 1981 to 31 percent in 1994 by the addition of nuclear and coal plants to its system, as well as by obtaining firm supplies of natural gas. With the conversion of the Plant to Orimulsion, oil generation would be reduced to 9 percent of FPL's energy mix by 1999. From an economic perspective, the Plant is the best site for an Orimulsion conversion. Because of economies of scale in converting a large plant to a new fuel, and because the Plant currently burns one of the most expensive grades of fuel oil on FPL's system, conversion of the Plant maximizes the Project savings. The Plant has port access and a pipeline which facilitates the safe and economic delivery of Orimulsion. As one of the newest plants in the FPL system, the Plant will have a long time in service following conversion. It is reasonable to expect that Orimulsion will be a stable fuel source. Bitor America Corporation is a wholly-owned subsidiary of Bitor S.A., which in turn is a wholly-owned subsidiary of Petroleos de Venezuela, the national energy company of Venezuela and the fourth largest energy company in the world. Petroleos de Venezuela companies have an excellent record of contract performance. The recoverable reserves of bitumen from which Orimulsion is made exceed 40 billion metric tons, comparable to the amount of crude oil in Saudi Arabia. Fuel production facilities planned and in place in Venezuela are more than adequate to meet the needs of the Plant. The conversion of the Plant to natural gas is not a viable alternative. Such a conversion would not reduce electricity costs to FPL's customers, but instead would increase them by approximately $233 million over 20 years due to the relatively higher cost of natural gas compared to the No. 6 fuel oil currently used at the Plant. Socioeconomic Impacts and Benefits of the Project The Project will have a positive impact on the economy of Manatee and Hillsborough Counties. Construction employment will average 347 direct employees over the two-year construction period, for a direct payroll ranging from $12.5 to $17.5 million in 1996, $19.0 to $24 million in 1997, and over $2 million in the first quarter of 1998. An average of 333 indirect jobs also will be created during construction by increased expenditures of construction employees, for average indirect wages of $6.4 million a year. Operation of the Project will result in 190 new jobs with an annual payroll of about $4.5 million. This includes 40 direct permanent jobs at the Plant with an annual payroll of $1.5 to $2.0 million, and 69 additional indirect jobs with a $1.3 million annual payroll. Trucking of limestone, gypsum and fly- ash will create another 45 direct jobs and 36 indirect jobs, with a combined annual payroll of $1.5 million. FPL's property taxes paid to Manatee County government will increase by $700,000 per year and port charges paid by FPL to Port Manatee for fuel shipments through that port will more than triple, to about $2.2 million per year. Assuming that the new operations employees will be new residents to the area, the increased employment will result in approximately $203,000 of additional costs to Manatee County for community services. This compares to additional tax revenues to Manatee County from those families and the Plant of about $2,530,000 per year, for a net positive governmental revenue impact of about $2.3 million per year. Additional annual tax revenues of $108,000 to Hillsborough County are within 10 percent of the additional annual cost of services of about $119,000 per year for employees expected to reside in that County. Fuel savings from the Project will have a significant positive impact on economic activity in the state. The $4.0 billion in net savings over 20 years will generate an average of $136 million a year in increased sales or business activity in the state, $41 million a year in increased earnings, and an average of 2,056 new jobs, in addition to the local economic impacts of construction and operation of the Plant. Overall electric bill savings to tax-supported governmental customers of FPL will range from $1.75 million to $22.83 million a year, even assuming that these customers' electric consumption does not increase from 1994-95 levels. This money will be available either to fund additional governmental services, or to reduce or offset tax increases. The Project will enable FPL to be a more competitive electric utility by substantially reducing its fuel costs, which are about 99 percent of the variable costs of generation, about two-thirds of the total cost of generation, and about one-quarter of the retail price of electricity. Conversion will make the Plant cost competitive with coal-fired plants in adjacent and nearby states, with which FPL will have to compete if and when retail wheeling -- the ability of customers to choose their supplier of electric generation -- becomes a reality in Florida. In the long run, by allowing FPL to remain a low-cost provider of electricity, the Project will help keep electric generating business activity in Florida, with the associated jobs, tax revenues, and economic activity. This creates a win- win-win situation for FPL's customers, FPL's investors, and the citizens of Florida. Project Site and Vicinity The site of the Project is within the existing 9,500- acre Plant site. This site is located in the unincorporated, north-central area of Manatee County, Florida. The site is approximately 15 miles northeast of Bradenton and 25 miles southeast of Tampa. The site is located north of State Road 62 and approximately 5 miles east of both the community of Parrish and U.S. 301. Saffold Road marks the eastern boundary of the 9,500-acre site while an FPL-owned railroad line is along the western boundary of the site. The Little Manatee River flows through the northern boundary of the Plant site. Principal access to the Plant site is provided from State Road 62 which intersects with U.S. Highway 301 to the west. The FPL-owned rail line that serves the site connects to the Palmetto area, southeast of the Plant. An existing FPL fuel pipeline connects the Plant site to Port Manatee, approximately 14 miles to the northwest. Existing electrical transmission lines run east and west from the Plant site. The Project will be undertaken within a 470-acre parcel which encompasses the existing Plant and other existing facilities, including two 500,000-barrel fuel storage tanks, wastewater treatment areas, switchyards, and other buildings. The Project site also includes areas that are currently used for agriculture that may be used for storage and disposal of by- products from the new pollution control equipment. The existing 9,500-acre site includes a 4,000-acre cooling pond which provides cooling water to the power plant. A makeup water pumping station located on the Little Manatee River provides makeup water to the cooling pond. A spillway structure for emergency releases during high water levels in the pond is also located along the Little Manatee River. Other on-site facilities include various maintenance buildings, an existing electrical switchyard and an on-site rail spur. The other areas of the Plant site are used for various agricultural, cattle or timber operations. Existing land uses within 5 miles of the Plant site consist mainly of agricultural and pasture lands, interspersed with low-density residential areas and undeveloped vegetative areas. Individual residences are located on one of the two outparcels that are located within the boundaries of the Plant site, as well as along State Road 62 at the southern perimeter of the site and along Saffold Road to the northeast. FPL also owns and operates an existing fuel terminal along the eastern edge of Tampa Bay as an associated facility for the Plant. The 55-acre fuel terminal is located at Port Manatee, approximately 14 miles northwest of the Plant in the unincorporated area of northwestern Manatee County. Light and heavy industrial uses are located in the immediate area surrounding the terminal. Land Use and Comprehensive Plan Consistency The site is an appropriate location for the Project from a land use planning perspective and will not cause any adverse impact on land use. The Project involves installation of pollution control equipment at an existing power plant site that has been used for power generation since the 1970s. The area in which the Project will be undertaken is located some distance from adjacent to surrounding properties. A 350-foot landscaped buffer will be established adjacent to the nearest property west of the Project area. A landscaped buffer will also be established to screen the site from residences located to the south along State Road 62. The Project also will comply with the development standards contained in the Manatee County Land Development Code, with the exception of one aspect of the landscape standards for which FPL is seeking a variance. The Manatee County Code, Section 715.6.5, allows the County Planning Director to approve relocation of up to 30 percent of the required landscaping to another portion of the site. The requested variance would allow 100 percent of the landscaping materials normally installed as foundation plantings for new buildings and parking lots to be placed instead within the designated landscape buffers near the boundaries of the site. The variance would allow landscaping to be done where it would benefit the most people. The Project will comply with all other applicable ordinances and regulations of Manatee County, including the County noise ordinance and building codes, if the 53 conditions recommended by Manatee County are included in the certification order. The Project, if approved with the conditions proposed by Manatee County, is consistent with the goals, objectives and policies of the adopted Manatee County Comprehensive Plan with one exception relating to the wetland mitigation ratios contained in the Comprehensive Plan. The site is designated for power plant use under the Manatee County Future Land Use Map under both the agricultural rural classification and the Public/Semi-Public I uses. Objective 3.2.1 of the County's plan is to maintain and enhance water quality and quantity of Lake Manatee; the Project is consistent with the septic tank use and other policies through which the objective is to be achieved under the plan. The Project will comply with Manatee County zoning standards. The Project site also is consistent with the goals and objectives of the State Comprehensive Plan and the Comprehensive Regional Policy Plan of the Tampa Bay Regional Planning Council. Existing Plant and Facilities The Plant currently consists of two oil-fired generating units of 800 MW each, for a total generating capacity of 1600 MW. The first unit went into service in October 1976, and the second unit in December, 1977. Electricity is generated in the existing units by combusting fuel in the boilers. The heat of combustion converts water in the boiler tubes to high pressure steam. This steam drives a large steam turbine which is connected to an electrical generator. Electricity then flows out to the existing switchyard and out of the site over the existing transmission lines. The Plant currently burns low-sulfur No. 6 fuel oil with a sulfur content no greater than 1 percent. No. 6 fuel oil is principally the residue of operations in which light and medium crude oils are fractionally distilled and processed to produce gasoline, diesel fuel, and other products. As the "bottom of the barrel," No. 6 fuel oil is a heavy viscous material from which higher value products can no longer be economically recovered. The Plant is also currently permitted to burn No. 2 fuel oil, natural gas, and on-specification used oil from FPL operations. Existing controls for air emissions include several combustion techniques within the boiler to minimize formation of nitrogen oxides (NOx). Particulate matter (PM) from fuel combustion is controlled using mechanical dust collectors that use centrifugal force to remove PM from the flue gas. Emissions of sulfur compounds, such as sulfur dioxide (SO2), are controlled only by limiting the sulfur content of the fuel oil. Cooling water is continuously pumped from the cooling pond through the Plant condensers and heat exchangers that absorb the rejected energy from the steam turbine. Heated water from the condensers is discharged back into the cooling pond where the energy is dissipated to the atmosphere through evaporation. Ultimately, the cooling water circulates through the pond back to the Plant intake structure and is recirculated through the Plant condensers and heat exchangers. Water loss is continually experienced in the cooling pond as a result of evaporation. Water losses from the pond also occur due to seepage through the pond embankment and bottom and as a result of other Plant water consumptive uses. Makeup water is therefore required to maintain the pond at its design operational level. Makeup water is currently provided through a combination of rainfall and water diverted from the Little Manatee River. A system of toe drains around the perimeter of the pond also captures the seepage through the embankments and returns that water to the pond. Service water, including process water for current operation of the Plant, is primarily obtained from the cooling pond, with three existing on-site wells used as a backup source. Service water is used for various processes in the Plant, such as soot blowing from boiler surfaces and for fire protection. The Plant process water system also provides ultra-pure water for the Plant, such as for makeup to the steam and water cycles in the power generating process. The existing wastewater treatment facility for the Plant includes two lined neutralization basins, two lined solids settling basins, a drying basin, and a lined stormwater basin for collection of runoff from equipment areas. Such stormwater runoff is stored in the stormwater basin, drained through an oil/water separator and recycled to the cooling pond. Industrial wastewaters are treated either in the neutralization basins or in the solid settling basins and recycled to the cooling pond. Collected solids are periodically transferred to a drying basin where they are stored and dried prior to off-site disposal in a licensed facility. FPL receives No. 6 fuel oil for the Plant at Port Manatee, to the northwest. Fuel is stored at the existing fuel terminal near Port Manatee, transferred to the Plant via a 14- mile-long buried pipeline, and then stored in storage facilities at the Plant. At Port Manatee, vessels are moored at the port berth and unloaded through dockside unloading hoses. Fuel unloading is monitored continuously by personnel at the dock as well as operators at the terminal. Fuel is transferred from the port berth to the FPL Port Manatee terminal via a 1.7-mile, 30-inch diameter pipeline which is cathodically protected against corrosion and hydrostatically tested annually to insure its continued integrity. At the Port Manatee terminal, fuel is stored in two 500,000-barrel fuel storage tanks that are contained within earthen berms to provide secondary containment in the event of an overfill or loss of a storage tank. The four fuel storage tanks at Port Manatee and at the Plant are equipped with safety shutdowns to prevent overfilling of the tanks. The four storage tanks are cathodically protected against corrosion. Fuel is transferred from the Port Manatee terminal to two 500,000-barrel fuel storage tanks at the Plant via a 14-mile- long, 16-inch-diameter steel pipeline. The pipeline is jacketed and coated to provide corrosion resistance and also is cathodically protected by an impressed electrical current to dampen corrosion of the pipeline. The pipeline is equipped with a midpoint block valve as well as valves at the terminal and at the Plant ends of the pipeline. Both pipeline facilities are patrolled at least 26 times a year by FPL and are enrolled in the State's "One-Call" locating system to advise FPL in the event that excavation occurs near the pipelines. During all transfers of fuel, continuous monitoring of the transfers is conducted by monitoring the volumes of fuel transferred across the pipeline. Orimulsion Conversion Project Modified and New Facilities Conversion to Orimulsion will involve changes to several of the existing facilities and the installation of new equipment, principally for the control of air emissions. Enhancements to heat transfer surfaces within the existing boilers will allow them to operate more effectively and efficiently with the firing of Orimulsion. Fuels and Fuel Delivery, Storage and Transportation Orimulsion is an emulsion composed of approximately 70 percent bitumen and 30 percent water, with less than 0.65 percent additives, including a nonylphenol polyethoxylate surfactant. The surfactant in Orimulsion comprises approximately .17 percent (+/- .02 percent) by weight of Orimulsion, and may be increased in the future to as much as .2 percent (+/- .02 percent), for a maximum of .22 percent. Orimulsion is currently used as a boiler fuel in 6 power plants in England, Denmark, Japan and Canada. After conversion, FPL may use high-sulfur fuel oil (HSFO) with maximum sulfur content of 3.0 percent, as an alternative fuel at the Plant if Orimulsion is not available. Low-sulfur fuel oil will also be an alternative fuel. No. 2 fuel oil, natural gas and/or propane may be fired during unit startup. On- specification used oil from FPL operations may also be fired. Orimulsion will be transported from Venezuela to Port Manatee by Bitor America Corporation. Ownership of the Orimulsion will transfer to FPL when the fuel passes the flange between the vessel and offloading hose at Port Manatee. Following the conversion of the Plant to Orimulsion, there will be approximately 100 vessels each year delivering Orimulsion to Port Manatee, which is approximately double the number of current No. 6 fuel oil deliveries to FPL. The system used currently for delivery of No. 6 fuel oil from Port Manatee to the Plant will be used in the future for deliveries of Orimulsion. Prior to the conversion of the Plant to Orimulsion, new unloading hoses will be installed at Port Manatee and pressure tested to insure their structural integrity. All four fuel oil storage tanks will be inspected and improved through the installation of internal fiberglass liners. The 14-mile fuel delivery pipeline will be electronically inspected using a "smart pig" that will survey the wall thickness of the entire circumference of the pipeline. Following conversion, a "smart pigging" inspection program will be implemented for the 14-mile pipeline with the first inspection within 30 months and then conducted every five years. The monitoring system for the 14- mile fuel pipeline will be upgraded to incorporate a computer- based monitoring system that will be tied into FPL's leak detection system for the pipeline. This new leak detection system will lower the detection limit for the pipeline down to 25 barrels. In addition, FPL will continue to perform tank-to-tank mass balances and end-of-batch inventory reconciliation to track fuel leaving the terminal and arriving at the Plant. These measures will allow FPL to detect a leak as small as 1/64th of an inch in the pipeline. These fuel storage and transportation facilities will continue to be operated in accordance with all applicable regulations. Over the past 17 years, FPL has experienced no leaks or breaks in these pipelines. In the event a future leak or break occurs, operation of the pipeline involved will be halted immediately upon detection and the pipeline will be surveyed to locate evidence of fuel outside the pipeline. FPL would then conduct appropriate cleanup and remediation, using techniques similar to those used to clean up fuel oil spills on land. Air Emission Controls Within the boilers, the existing fuel burners will be replaced with new low-NOx burners that will control the formation of NOx during combustion. Reburn technology also will be installed in both boilers to stage the combustion process and further minimize the formation of NOx. The new low-NOx burners and reburn fuel injectors will replace the existing NOx controls for the Plant. Two electrostatic precipitators (ESPs) will be installed for each generating unit to control particulate matter (PM) resulting from fuel combustion. The ESPs remove PM by passing it through an electrical field. A negative charge is placed on the PM, causing it to migrate toward positively charged plates in the ESP. The PM collects on the surface of the plates and is periodically removed by rapping the plates, causing the layer of collected dust to shake loose and fall to compartments at the bottom of the ESP as flyash. Approximately 90 percent of the PM entering the ESP will be removed. The ESPs also will remove toxic substances from the flue gas. Following the ESPs, a flue gas desulfurization (FGD) unit, or scrubber, will remove SO2 and other sulfur compounds from the flue gas. Flue gas enters the scrubber where it meets a limestone/water slurry mixture and the limestone reacts with the SO2, forming calcium sulfate or gypsum. The water and gypsum fall into a tank at the bottom of the scrubber. The clean flue gas then passes through a mist eliminator, which recovers some of the water vapor in the flue gas. The clean flue gas then exits the Plant via the existing chimneys or stacks. The scrubber will remove 95 percent of the SO2 formed during combustion. ESPs and scrubbers are well-proven technologies that have been in use for more than 30 years. Limestone used in the scrubber will be delivered by truck to the site. It will be transferred to a receiving hopper and then into on-site limestone storage silos, which will provide three days of storage. A backup limestone storage pile, providing 30 days of supply, will also be established to insure limestone availability if deliveries are interrupted. The limestone will be processed in a ball mill, combining it with water and grinding it to a fine consistency to create the limestone slurry used in the scrubber system. Measures will be taken during delivery and transfer of limestone to control emissions of PM and fugitive dust that might be generated. These measures include covered trucks, paving of on-site roadways and use of covered transfer conveyors. The limestone will be moist when received and therefore will not be dusty. However, water sprays will be used on the open storage pile if it gets dusty from prolonged dry periods. Water Uses and Treatment The conversion to Orimulsion will increase service and process water uses within the Plant. The principal increase in such water use will be for the new pollution control equipment. Water from the groundwater wells will be used directly in the scrubber with a membrane softener system added, if needed, to treat hardness in the well water. Additional process water treatment systems will be installed, consisting primarily of an upgrade of an existing reverse osmosis plant to provide up to 500 gallons per minute of process water for use in the boiler makeup water system and in soot blowing. The existing industrial wastewater treatment system will continue to handle wastewaters produced by the converted Plant with a new wastewater treatment plant added to treat rinse and wash waters from the existing solids settling basin. Treated wastewaters from both the wastewater treatment system and the water treatment systems will be recycled to the cooling pond to the maximum extent practicable. The existing potable water treatment system and domestic wastewater treatment system will not require any changes as a result of the conversion except to extend distribution lines and service lines, respectively, to the new buildings. By-Product Reuse and Disposal Gypsum recovered from the scrubber will be dewatered, filtered, and rinsed to produce high-quality gypsum usable as the primary ingredient in wallboard or dry wall. Pure Air of Manatee has a 20-year contract for National Gypsum to use the scrubber gypsum to produce wallboard at its Tampa production plant. Use of scrubber gypsum to manufacture wallboard has occurred for many years, including use by National Gypsum. In addition to this major off-site use of gypsum, Pure Air has contracts to supply local cement manufacturers with gypsum for use in the manufacture of Portland cement. The combined capacity of the contracts is greater than the converted Plant's annual gypsum production. Flyash will be collected in the ESPs and conveyed by pneumatic conveyor system to totally enclosed silos. The flyash will then be fed into a processing facility to make commercial by- products for shipment to off-site users. Pure Air has developed several potential commercial uses for flyash with the primary market expected to be the asphalt products industry. Pure Air is seeking to sell all of the flyash to that industry. In addition, flyash may be sold for use in Portland cement manufacturing. These environmentally sound uses of flyash would add value to the ultimate products produced. The volume of flyash to be produced at the Plant could be used entirely by three cement manufacturers within the Manatee County/Hillsborough County area. A 15-acre temporary storage area for the gypsum by- product will be constructed west of the existing Plant. The purpose of this temporary by-product storage area is to stockpile gypsum so that it can be supplied to the off-site users when the Plant is shut down for maintenance or to store it during periods when the wallboard manufacturer or cement plants may not be in operation. Normally, one to two months of gypsum will be stored in this area, which will have capacity for up to six months of gypsum production. Gypsum will be trucked to the on-site temporary by-product storage area over internal roads. It will be reclaimed as needed and transported to the various manufacturing facilities. While there are no specific agency regulations or design standards that apply to the design and operation of the temporary by-product storage area, FPL has committed that the storage area will be lined with a composite gypsum/synthetic liner designed in accordance with DEP's liner requirements for phosphogypsum management under Rule 62-673, F.A.C. The design of the storage area will comply with all of the design criteria of DEP Rule 62-673, F.A.C. Use of these design standards as a guide will insure that surface water and groundwater will be adequately protected from any impacts associated with the temporary by- product storage area. The temporary by-product storage area is outside the 100-year flood plain, is not located within 200 feet of any natural or artificial surface water body that might receive untreated surface discharges, and is not within 500 feet of an existing or approved drinking water supply. Any rainfall that contacts the stored gypsum will be collected and used as makeup water in the pollution control system and not discharged off-site. The storage area will be bermed to contain rainfall from a 100-year/24-hour storm event. Groundwater monitoring wells will be installed around the temporary by-product storage area and sampled semiannually to monitor for any possible groundwater contamination from the storage area. To insure long term operation of the converted Plant, the Project design has included a 158-acre on-site disposal area for gypsum and flyash. The long-term disposal area will only be constructed if it becomes infeasible, impracticable, or uneconomical to continue to sell the by- products or to use off- site disposal facilities. The backup by-product disposal area would be located west of the existing units and is sized to hold 100 percent of the by-products generated over a 20-year period. While no specific agency regulations or design standards apply to the backup by- product disposal area, it would be designed in accordance with the requirements of Rule 62-701, F.A.C., which establishes design standards for Class I landfills. The gypsum disposal area, designed for a full 20 years of by- product, would be approximately 100 acres with a maximum height of 115 feet above ground surface. The separate flyash disposal area would be approximately 20 acres with a maximum height of 45 feet. The other 38 acres would be used for stormwater and leachate ponds and perimeter berms and roads. The disposal areas would be divided into ten phases or cells, each holding approximately two years of ash or gypsum production from the Plant. This phasing would minimize the required construction which further minimizes environmental damage, including impacts to wetlands. A 350-foot-wide vegetated buffer would be maintained between the western edge of the disposal area and the FPL property line along the nearest outparcel. The by-product disposal area will be constructed with a double liner system to prevent impacts to groundwater. The bottom liner will be above the seasonal high groundwater table. The disposal area will have a primary leachate collection system above the upper liner and a secondary leachate collection system between the upper and lower liners. The leachate will drain to sumps in the leachate collection system and then will be pumped to two double-lined leachate ponds capable of containing a 25- year/24-hour storm event with three feet of freeboard. Any leachate collected in the ponds will be pumped for use in the pollution control equipment and not be discharged off-site. Once a disposal cell is filled, it will be closed and capped with a synthetic geomembrane and protected by about two feet of soil to prevent rainfall from leaching in and contacting the gypsum or flyash. The soil will be grassed to prevent erosion. Following closure of the disposal area, continuing maintenance and monitoring will be undertaken. Rail and Road Improvements FPL will construct new turn lanes and acceleration lanes at the intersection of the Plant entrance road and State Road 62. These roadway improvements will facilitate turning in and out of the Plant and reduce delays for through traffic on State Road 62. FPL will improve the existing rail line serving the Plant and install a new rail curve where the existing Plant spur intersects with the existing rail line north of the Plant. The existing rail line between the Plant and Palmetto will be repaired and maintained to American Railway Engineering Association Class I standards. This rail line will be used for delivery of materials during construction and maintenance of the existing units and in the future, if feasible opportunities or needs develop, to transport limestone to the site and remove gypsum and flyash from the site. Surface Water Management Systems Construction and operation of the Project will involve treatment, storage and management of surface water runoff resulting from rainfall on the Project site. A surface water management system and associated facilities, consisting of a series of swales, culverts, and treatment ponds, already exist within much of the Project site. During Project construction, the existing stormwater treatment areas will provide management of stormwater runoff and will meet the applicable regulations of SWFWMD, Manatee County and other agencies. During operation, rainfall that falls within areas that could potentially be contaminated by fuels are treated as industrial wastewater and treated in the Plant's industrial wastewater treatment system prior to discharge to the cooling pond. As part of the Project, new drainage areas with stormwater runoff that may potentially contact Orimulsion will be isolated from the existing runoff collection system and processed through a new, lined stormwater basin and a new bitumen/water separator. A new stormwater detention pond will be constructed south of the power block to capture and treat runoff from new roadways. A perimeter swale system will be constructed to serve the new railroad curve between the existing main rail line and the existing Plant spur. Rainfall within the area around the three new wells adjacent to the west bank of the cooling pond will be captured in a closed system designed to hold a 100- year/24-hour storm. At the Plant fuel terminal, the existing surface water management system will be modified to incorporate a new bitumen/water separator, in addition to the existing oil/water separator. The water will be discharged within the embankment area around the fuel storage tanks, which has the capacity to hold the rainfall from a 100-year/24-hour storm. For the 15-acre temporary gypsum storage area, a perimeter berm will contain a 100- year/24-hour rainfall within the storage area. This rainfall will be isolated from the watershed and pumped to the pollution control equipment for use as makeup water. For the 158-acre backup by- product disposal area for gypsum and flyash, rainfall that may come in contact with by-products in open cells will be pumped to a separate stormwater and leachate pond and recycled as makeup water to the pollution control equipment. Runoff from closed portions of the disposal area will be routed to new stormwater ponds, treated and pumped to the cooling pond. All of these stormwater management facilities will comply with the criteria for water quality treatment and water quantity retention prior to discharge, as established by the SWFWMD, Manatee County, the DEP and the Steam Electric Guidelines under 40 CFR Part 423. Project Construction and Schedule Construction of the Project will require approximately two years. Following permit approval, construction would commence with the relocation of existing equipment and the installation of foundations for the new pollution control equipment. During initial construction, the Plant would still be operated. For the last 90 days of construction the Plant would cease operation and FPL would undertake the boiler enhancements. This would involve installation of the new low-NOx burners and tie-in of the pollution control equipment. Pure Air will design and install the new pollution control equipment while FPL will be responsible for construction of the boiler modifications and alterations to the fuel delivery system. Construction impacts to natural areas are expected to be minor since much of the construction will be undertaken within the existing developed area of the Plant and only localized excavation, grading and levelling will be necessary. Temporary dewatering of groundwater may be necessary during construction of foundations for the pollution control equipment. Fugitive dust generated from construction traffic and excavation will be minimized by water sprinkling. Other open areas will be either paved or vegetated to reduce fugitive dust and wind erosion. Under the arrangement between FPL and Pure Air, of the total capital cost of approximately $263.54 million, approximately $83.5 million will be paid for by FPL, and $180 million, including pollution control facilities, will be paid for by Pure Air. Transportation FPL conducted traffic analyses to determine if the existing roadways in the area would operate within established levels of service based upon increased volumes of traffic associated both with construction and operation at the site. During construction, the magnitude of traffic impacts will be directly related to the number of construction employees. While peak construction employment is expected to reach 577 employees, for purposes of the traffic impact analysis it was assumed that construction employment would peak at 640 employees, representing a worst case assumption. During Plant operations, 40 new employees are expected to work at the Plant. In addition, trucks will be used to deliver limestone and remove gypsum and flyash from the site. The maximum number of trucks used for this purpose would represent 202 round trips per day, in and out of the Plant site. However, it is expected that the same trucks used to remove gypsum from the site will be used to backhaul limestone into the site. Backhauling would reduce the number of trucks for delivery of limestone and gypsum to about 60 percent of the maximum level. Existing roadways and intersections in the site vicinity are currently operating at acceptable levels of service as adopted by county and state transportation agencies. A traffic impact analysis, using conservative methodologies and assumptions, demonstrated that with the additional Project traffic, the area roadway network and intersections will continue to operate acceptably in accordance with agency standards and levels of service. All of the roadways in Manatee County and Hillsborough County that would be used for truck traffic are designated by functional classifications for truck traffic. All of these roadway segments are currently serving through traffic and truck traffic today. While Project-related traffic will comply with applicable agency standards, FPL has committed to several roadway improvements to enhance traffic-related movements in the area. FPL will construct a left-turn lane from State Road 62 into the Plant entrance, as well as a west-bound acceleration lane along State Road 62 leaving the site. These improvements will reduce delay for traffic travelling along State Road 62 past the FPL site. FPL will fund installation of a traffic signal at the intersection of State Road 62 and U.S. 301 west of the Plant site, if the Florida Department of Transportation decides that traffic signal is warranted. Project truck traffic for delivery of limestone and removal of gypsum will be limited during morning hours when school buses would be operating along the trucking haul route. In addition, FPL will install school bus stop signs and school bus shelters along the primary haul route. FPL will pay its fair share of the cost of any deterioration of area roadway surfaces caused by the Project's trucks. These improvements are beyond what would be required to comply with applicable agency standards as all of the roadway facilities are operating within agency standards. Rail delivery of limestone and removal of gypsum was considered during the original development of the Project. However, rail shipments of these products was deemed not to be feasible currently for several reasons. Investigations showed that both the gypsum that would be produced at the Plant and the limestone and limerock likely to be delivered to the Plant cannot be unloaded from conventional rail cars, based on testing of available rail car types. Several of the limestone quarries that may be used to supply limestone do not have rail access or rail facilities. Also, National Gypsum does not have rail facilities for unloading gypsum at its existing plant. Moreover, if use of rail shipments were feasible, trains hauling gypsum to the Tampa wallboard manufacturing plant would pass through 150 at-grade crossings in Manatee and Hillsborough counties and the rail route would go through downtown Tampa. Noise Impacts Noise impacts from the Project will not exceed applicable noise standards. Archaeological and Historic Sites The Project will not affect any known archaeological or historical sites. Appropriate Conditions of Certification have been proposed to protect such resources if discovered later. Air Emissions, Controls, and Impacts Existing and Proposed Emissions FPL received air construction permits for the Plant units from the Florida Department of Air and Water Pollution Control (DWPC) in 1972 and air operation permits from the Florida Department of Environmental Regulation (DER) in 1977 and 1978. FPL currently utilizes fuel quality and combustion controls to achieve existing permitted emission limits for SO2, NOx, PM, and visible emissions. The existing emission limits for SO2 and NOx are more stringent than emission limits for most power plants in Florida. Although the Plant units currently are permitted to operate at a 100 percent capacity factor (i.e., utilization rate), the units historically have operated at an average annual capacity factor of approximately 30 percent, due in large part to fuel oil costs. As a result of the conversion to Orimulsion, the Plant units are expected to operate at an annual average capacity factor of 87 percent. Despite the increase in Plant utilization, total short-term (hourly) and total annual (tons per year or "tpy") air emissions are expected to decrease in comparison to both permitted and historical levels. With installation of FGD, actual emissions of SO2 will decrease by approximately 13,000 tpy or 45 percent from historical levels. Similarly, with installation of ESPs, annual emissions of PM and toxic substances also will decrease, and visible emissions will be limited to 20 percent opacity instead of the 40 percent level authorized under existing permits. Although low-NOx burners and reburn technology will be installed on both units to achieve a reduction from the existing short-term NOx emission rate, annual emissions will increase by approximately 6,000 tpy due to increased Plant operation. Likewise, short-term emissions of carbon monoxide (CO) will decrease; but annual emissions will increase by approximately 3,500 tpy. Because the converted Plant is expected to displace other plants in FPL's generating system, it is expected that the Project also will affect air emissions on a system-wide basis. Based on an analysis of projected fuel usage and emission rates for the various units in FPL's system through the year 1999, the Project will result in system-wide reductions in air emissions of all pollutants except CO. In the first year of Project operation, for example, system-wide emissions of CO are predicted to increase by 2,607 tons; but there will be significant reductions in all other pollutants, including PM (-2,252 tons), SO2 (-48,626 tons), NOx (-10,425 tons), volatile organic compounds or "VOCs" (-109 tons), and toxics (-181 tons). The analysis made appropriate assumptions concerning other FPL permits, power purchase contracts and changes in power demand from population growth and other factors. Best Available Control Technology for NOx DEP has determined that conversion of the Plant units to fire Orimulsion constitutes a "modification" subject to review under DEP's Prevention of Significant Deterioration (PSD) regulations in Chapter 62-212, F.A.C. For modifications of existing sources, these regulations require a determination of Best Available Control Technology (BACT) for all air pollutants which will experience emission increases in excess of applicable significant emission rates. Rule 62-212.400(1)(f), F.A.C. Because NOx and CO emission increases exceed applicable significant emission rates as a result of the conversion to Orimulsion, BACT is required for those pollutants. DEP rules define "Best Available Control Technology" or "BACT" as: An emissions limitation, including a visible emission standard, based on the maximum degree of reduction of each pollutant emitted which the Department, on a case by case basis, taking into account energy, environmental, and economic impacts, and other costs, deter- mines is achievable through application of pro- duction processes and available methods, systems and techniques (including fuel cleaning or treatment or innovative fuel combustion techniques) for control of each such pollutant. Rule 62-212.200(16), F.A.C. In determining BACT, DEP must give consideration to prior BACT determinations of the U.S. Environmental Protection Agency (EPA) and any other state, all available scientific and technical material and information, and the social and economic impacts of application of such technology. Rule 62-212.410(1), F.A.C. DEP has no rule on making BACT determinations. In making BACT determinations, DEP attempts to follow EPA guidelines. Unfortunately, EPA also has not promulgated the guidelines as rules; they consist of a 1990 draft entitled EPA New Source Review Manual. To make matters worse, one reason why the EPA draft guidelines have not been adopted as rules may be that they are so complicated and confusing. It was noted by one expert practitioner in the field that it is with good reason that the design of the cover of the EPA draft guidelines is a jigsaw puzzle and, notwithstanding their official title, practitioners commonly refer to the guidelines as "the puzzle book." In accordance with EPA requirements, DEP currently uses a "top down" approach in determining BACT. Under the "top down" approach, alternative control technologies are ranked in terms of stringency. An emission limit reflecting the most stringent control alternative generally is selected as BACT unless rejected as technically or economically infeasible. Under the "top down" BACT approach, the most stringent NOx emission limit for sources similar to the Plant units is 0.17 lbs/mmBtu (pounds per million British thermal units) of heat input, using selective catalytic reduction (SCR) and combustion controls. SCR involves the injection of ammonia into the flue gas in the presence of a catalyst. The ammonia reacts with NOx on the surface of the catalyst, thereby transforming NOx into nitrogen and water. The SCR is not entirely selective; it also results in undesired reactions, including the conversion of SO2 to SO3 and the creation of ammonium sulfate and bisulfate. SCR systems require a flue gas temperature in the range of 600 to 750 degrees (F) which for some applications can be achieved between the boiler and the air preheater upstream of the ESP and FGD system. This configuration is referred to as a "front-end" SCR system. With fuels such as Orimulsion and high sulfur fuel oil which contain relatively high amounts of sulfur and vanadium, however, a front-end SCR can lead to significant problems because the vanadium in the fuel deposits on the SCR catalyst and results in an ever-increasing SO2 to SO3 conversion rate. Despite an extensive research program conducted jointly by European and American corporations involved in SCR manufacture, design, and operation, there are no available means of avoiding the ever-increasing SO2 to SO3 conversion rate when a front-end SCR is used with high-sulfur and high-vanadium fuels on utility units operated at base-load (i.e., operated continuously). Excessive SO3 created by a front-end SCR can plug the air preheater, which is a large piece of equipment approximately 45 feet in diameter. In addition, the SO3 condenses into sulfuric acid which corrodes the air preheater and ESP. There are no available means of protecting the air preheater from the excessive SO3 created by a front-end SCR system. Additional ammonia can be injected after the air preheater to neutralize the increased SO3 and thereby protect the ESP. However, additional ammonia injection causes more operational problems including ammonia slip, which can contaminate the water in the FGD and partially leave the stack as an emission, as well as an additional ash stream which would result in either higher particulate emissions or the need for a larger ESP. For these reasons, a front-end SCR system is technically infeasible for the converted Plant units, which are expected to operate base-loaded while firing Orimulsion. There was some testimony that a front-end SCR has been used on a unit which apparently has fired Orimulsion in Japan for approximately one year. However, that was a small peaking unit that could be shut down for maintenance when needed. In contrast, FPL's plans for the converted Manatee Plant units is to operate them as base-loaded units. Unlike peaking units which operate sporadically, base-loaded units operate continuously and are not out of service enough to allow for the performance of the additional maintenance required for a front-end SCR system. For that reason, a front-end SCR is not technically feasible for base-loaded units firing Orimulsion. Under a "back-end" design in which the SCR system is located downstream of the air preheater, ESP and FGD, the operational problems associated with the front-end system are avoided because the ESP removes vanadium, and the FGD removes sulfur from the flue gas. However, there are significant energy, environmental, and economic disadvantages to a back-end system. A back-end system would require installation of additional fans to overcome significant pressure loss and either duct burners or steam heat exchangers to reheat the flue gas to achieve the temperature necessary for the catalytic reaction. Approximately 6.72 percent of the energy generated by the boilers would have to be used to power this additional equipment--the approximate equivalent of the electrical use of 30,000 homes. In addition to higher energy consumption, a back-end system would result in secondary emissions from the burning of additional fuel and increased capital and operating costs. The EPA guidelines seem to say that both average and incremental cost effectiveness should be used to evaluate particular control options. Average cost compares the total amount of pollutant reduction from a combination of technologies to the cost of those technologies. Incremental cost effectiveness assesses the cost of adding a technology to emissions already controlled to some extent by other technologies. Of the two analyses, DEP believes that incremental cost effectiveness is the better accepted engineering practice, and there is a larger incremental cost database that can be used for making project-to-project comparisons. For these reasons, DEP relies more on the incremental cost effectiveness analysis. In prior BACT determinations for NOx emissions, DEP has viewed incremental costs in the range of $4,000 per ton of NOx removed as economically viable. By comparison, DEP has considered incremental costs in the range of $5,000 per ton of NOx removed to be unacceptable in determining BACT for NOx. The total capital costs of a back-end SCR system are on the order of $80 million to $100 million per unit. When capital costs are considered with operational costs and annualized over time, the total per-unit cost of a back-end SCR system ranges from $27 to 29 million per year. Unlike SCR, which reduces NOx that has already formed in the boiler, low-NOx burners minimize the formation of NOx by reducing the temperature and amount of time that nitrogen and oxygen have to react in the boiler. For the converted Plant units, low-NOx burners are capable of achieving a NOx emission rate of 0.27 lbs/mmBtu or lower at a total capital cost of approximately $5 million per unit. Operating costs are low, and the incremental cost effectiveness of low NOx burners used to achieve a .27 lbs/mmBtu emissions rate is only about $670 per ton removed. When compared to use of low-NOx burners at a 0.27 lbs/mmBtu NOx emissions rate, the incremental cost of adding a back-end SCR to achieve a 0.17 lbs/mmBtu rate is in the range of $8,000 to $9,000 per ton of NOx removed, which is well in excess of costs previously found to be too high in prior BACT determinations. Shortly before the start of the final hearing, FPL agreed to add reburn, another combustion control technology, on one unit as a test to ascertain if it could further reduce NOx emissions during the generating process; if so, FPL agreed to add the technology to the other unit as well. However, FPL still maintained that the BACT emissions limit should be set at .27 lbs/mmBtu. By the end of the hearing, a stipulation was entered into among FPL, DEP, EPC and Pinellas County that reburn technology also will be installed on both units to achieve a NOx emissions limit of no greater than 0.23 lbs/mmBtu (30-day rolling average) while firing Orimulsion. In addition, it was stipulated by those parties that DEP may modify the NOx emissions limit if it is determined that a rate lower than 0.23 lbs/mmBtu can be practicably and consistently achieved based upon the results of a six-month test program to be developed by a NOx Emissions Reduction Team consisting of representatives from FPL, the low- NOx burner supplier, FPL's reburn technology consultant, DEP, Pinellas County, Manatee County and EPC. The evidence was somewhat confusing as to the capital and operating costs of the reburn technology. It appears that the capital cost would be approximately an additional $8 million per unit, making the total capital cost of the combination of low NOx burners and the reburn technology approximately $13 million per unit. The evidence did not specify the operating costs. However, the evidence was that incremental evaluation of the addition of back-end SCR using the lower .23 lbs/mmBtu emissions limit would result in SCR being even less cost-effective--more on the order of $15,000 per ton of NOx removed. There is some indication that, while BACT emission limits for SCR systems have been set at .17 lbs/mmBtu, the technology actually might be capable of achieving emission reductions on the order of .10 lbs/mmBtu. If the lower emissions rate is assumed, SCR would look more cost effective. However, no calculations were made based on the lower emissions rate, and there was no competent evidence on which a finding could be made that, for purposes of determining BACT, the cost-effectiveness of back-end SCR should be assessed based on the lower emissions limit. The evidence was that the .10 lbs/mmBtu was a design emissions rate for certain SCR equipment; the evidence called into question the ability of SCR to achieve a continuous emission rate of .10 lbs/mmBtu. Although DEP has declined to give much weight to consideration of the average cost of NOx removal, some evidence was introduced at hearing on the average cost of reducing NOx emissions at the converted Manatee Plant using a combination of low NOx burners and back-end SCR. Under an average cost effectiveness analysis, the emissions limit determined to be achievable by a combination of control technologies is compared to what EPA calls the "realistic upper bound" uncontrolled emissions rate. Using an "upper bound" emissions rate of .58 lbs/mmBtu, and an emissions limit of .17 lbs/mmBtu, one witness found the average cost of reducing NOx emissions at the converted Manatee Plant using a combination of low NOx burners and back-end SCR to be on the order of just $2,000 per ton removed. But the use of .58 lbs/mmBtu as the "upper bound" number was based on incomplete and to some extent inaccurate information. FPL and DEP presented evidence that the actual average cost per ton of NOx removed is more on the order of $4,300. These analyses used .395 (or .4) lbs/mmBtu as the "upper bound" starting point. This starting point was based on more complete and more accurate information, but there seems to be room for argument as to the most suitable starting point. There also was evidence of an earlier FPL calculation that average cost per ton of NOx removed is approximately $2,900. However, the evidence was not clear as to the assumptions used in this calculation. Although DEP has declined to give much weight to consideration of the average cost of NOx removal, there was some indication that other states do. Pennsylvania was said to use average cost of $4,000 per ton of NOx removed as a benchmark for determining the economic feasibility of BACT emissions limits, and Wisconsin was said to use $6,000. However, the evidence was not clear as to how those states make BACT determinations for NOx emissions. In light of the excessive incremental costs of SCR for the converted Plant units, imposition of SCR is not warranted. Although concerns have been raised about the potential effect of NOx emissions on ozone levels and nitrogen deposition in the Tampa Bay area, as discussed infra, NOx emissions from the converted Plant units are not expected to have a significant impact on either ozone levels or water quality. Moreover, the evidence was not clear that such environmental impacts would be significantly different whether or not SCR is installed on the converted Plant units. Based upon a case-by-case consideration of the energy, environmental, economic, and other factors discussed above, a NOx emission rate of 0.23 lbs/mmBtu based upon use of low-NOx burners and reburn technology constitutes BACT for the converted Plant units when firing Orimulsion. For CO emissions from the converted Plant units, BACT is an emissions limit of 0.325 lbs/mmBtu based upon use of combustion controls. Other than combustion controls, there are no feasible means of controlling CO emissions from fossil fuel- fired steam electric generating units. Air Quality Impact Analysis Ambient air quality impact analyses demonstrate that emissions resulting from maximum operation of the converted Plant will comply with applicable ambient air quality standards and PSD increments for CO and NO2. Because the NO2 analyses were based upon a NOx emissions rate of 0.3 lbs/mmBtu, actual impacts on ambient NO2 concentrations are expected to be lower in light of the subsequently agreed-upon NOx emissions rate of 0.23 lbs/mmBtu. Although ambient impact analyses are not required for SO2 and PM because emissions will be below significant emission rates, FPL also performed air dispersion modeling demonstrating compliance with ambient air quality standards for those pollutants. Additional impact analyses demonstrate that projected emissions of SO2, NOx, and CO will have no adverse impact on soils, vegetation, wildlife, or visibility in the vicinity of the Plant. Likewise, the results of air dispersion modeling demonstrate that projected emissions will not adversely impact air quality related values (AQRVs), such as vegetation, soils, wildlife, and visibility, in the Chassahowitzka National Wilderness Area which is the PSD Class I area closest to the Plant. Effect of Proposed NOx Emissions on Ozone Levels Ambient air quality analyses for ozone typically are not required for sources, such as the Plant, which are located in areas that are in attainment of the ozone standard. However, because the Plant is located within a mile of the Hillsborough County/Manatee County line, and not far from Pinellas County, and because Hillsborough County and Pinellas County are in the process of being redesignated from nonattainment to attainment for ozone, concerns have been raised regarding the potential effect of proposed NOx emissions on ozone levels. Ozone formation is a complex process involving precursor pollutants such as NOx and VOCs (volatile organic compounds). There is no direct relationship between increased NOx or VOC emissions and increased ozone levels. Depending upon conditions in the particular area in question, NOx reductions may or may not benefit ambient ozone levels. The impact of a NOx emissions point source, such as the Manatee Plant, on ozone levels is difficult to predict. There are no EPA-recommended models to analyze the effect of NOx emissions from a particular source on ozone concentrations, but other models and tools that are available can be used to try to assess whether a particular source may have a significant impact on ozone formation in a particular urban area. FPL used the models suggested by DEP. To assess the impact of projected NOx emissions on ozone formation, FPL first utilized the Empirical Kinetics Modeling Approach (EKMA), which DEP used in support of the ozone redesignation request submitted to EPA for the Tampa Bay area. The EKMA model is not a dispersion model designed for use in predicting ozone impact of a NOx emissions point source, such as the Manatee Plant. It essentially evenly distributes NOx and VOC's within a certain volume of air, such as the air over the Hillsborough/Pinellas nonattainment zone, and models the totality of what occurs within the airshed. It also does not account for either other additions from outside the zone being modeled or components of the air mass leaving the zone being modeled. FPL essentially adjusted the model by adding the NOx emissions from the converted Manatee Plant. It is a relatively crude model used primarily for screening purposes. Because of the difficulty in predicting the impact of the converted Manatee Plant, and the limitations of the EKMA model, DEP requested that FPL also use the Reactive Plume Model (RPM) to further assess the effect of the projected emissions on ozone concentrations in Hillsborough and Pinellas counties. The RPM model also has its limitations and is not approved by the EPA for predicting ozone concentrations resulting from a point source. The RPM models ozone precursor reactions resulting from the point source being studied that occur within the plume. It is clear that, as a result of the complex nature of the ozone precursor reactions, significant ozone formation also will occur "off-plume." RPM attempts to account for this ozone formation as well. In any event, it is not clear how "off-plume" reactions would be affected by the point source being evaluated. Like the EKMA model, the RPM model used by FPL also did not account for either additions from outside the zone being modeled or components of the air mass leaving the zone being modeled. FPL did not attempt to predict future additional sources of ozone precursors and run either the EKMA model or the RPM model assuming impacts from those additional sources. The evidence was that this exercise would have been difficult if not impossible to undertake. It is not clear whether, with new air pollution regulations, NOx levels will increase or decrease, and it is difficult to predict where new source will originate. (The same probably could be said for VOC's.) For these reasons, such an exercise, if undertaken, would have been of questionable predictive value. Despite its limitations, the RPM model does provide additional useful information in attempting to assess the impact of the converted Manatee Plant on ozone formation, and it is the only other reasonably available tool. Better models or "observation-based approaches" that might be effective for purposes of point source permitting have not been developed yet. An Urban Air Shed Model (UASM) would provide useful additional information, but UASM's are extremely complex and typically are conducted by a consortium of governments and universities for entire metropolitan areas. UASM's take years to complete and cost hundreds of thousands of dollars. It is not reasonable to require FPL to finance and conduct such a study in this case. Although there are limitations to the EKMA and RPM models, FPL has done more to analyze potential impacts of NOx emissions, using the reasonably available tools, than any other applicant in the history of Florida's air permitting program. The EKMA and RPM modeling indicate that NOx emissions from the converted Plant will not have a significant impact on ozone levels in the Tampa Bay area. Based on these modeling analyses, FPL has provided reasonable assurances that the Project will not cause or contribute to a violation of the ozone standard. By notice published in the Federal Register on December 7, 1995, EPA proposed to redesignate the Hillsborough/Pinellas county area as attainment for ozone. Under the proposal, EPA would approve the redesignation request and maintenance plan jointly submitted by DEP, Pinellas County, and Hillsborough County. The Orimulsion Conversion Project itself will not trigger any specific action under the maintenance plan because the Manatee Plant is located outside of Hillsborough and Pinellas counties. There are two "triggers" for a response under the maintenance plan. The first would be a violation of the ozone ambient air quality standards in the two-county area, i.e., the fourth maximum daily value greater than .12 parts per million (ppm). The only recorded exceedances since 1990 occurred on June 10, 1995. The second "trigger" has two conditions: the first is an increase in the inventory of NOx or VOC emissions in the inventory update years 1994, 1997 or 2000 exceeding 5 percent over the levels recorded in 1990, a year in which there were no ozone violations; the second would be the a design value for the update year of greater than .114 ppm (compared to the ambient air standard of .12 ppm). While the 1994 inventory of NOx emissions was between 7 and 8 percent over the 1990 inventory, no maximum concentrations over the "design value" have been recorded. (The 1995 inventory was not available at the time of the hearing.) Recognizing the limitations of the EKMA and RPM modeling, it nonetheless is not expected that emissions from the Project will trigger any action under the maintenance plan. If an ozone violation or other specific contingencies occur in the future, however, the maintenance plan would require the state to undertake rulemaking to implement corrective action. Such corrective action could include imposition of Reasonably Available Control Technology (RACT) for existing sources of NOx in the region and expansion of NOx and/or VOC control strategies to adjacent counties. FPL also has agreed to further minimize NOx emissions during the "ozone season," which generally lasts from May 15 through September 15. Under the stipulation between FPL, DEP, EPC and Pinellas County, daily NOx emissions from the Plant shall not exceed 42.23 tons during the ozone season when Orimulsion is fired. This daily cap is more restrictive than a 30-day rolling average. As incentive to further reduce NOx emissions, FPL will pay annually, to a trust fund jointly administered by Manatee, Pinellas, and Hillsborough Counties to benefit air quality in the region, $200 per ton of NOx emitted from both Plant units, on a daily basis, in excess of 38.6 tons per day during the ozone season. Effect of Proposed NOx Emissions on Water Quality The Plant is located within the watershed of Tampa Bay, a large estuary comprised of four major segments including Old Tampa Bay, Hillsborough Bay, Middle Tampa Bay, and Lower Tampa Bay, and other embayments including Cockroach Bay and Little Cockroach Bay in the Cockroach Bay Aquatic Preserve, which is designated as an Outstanding Florida Water (OFW). The Little Manatee River, another OFW, also is part of the Tampa Bay watershed. Because Tampa Bay is located in a phosphate-rich area, phosphorus levels in the bay are extremely high. Due to high phosphorus levels, nitrogen is considered the limiting nutrient in Tampa Bay. Major sources of nitrogen to Tampa Bay include nonpoint runoff (i.e., materials that run off the land surface and are carried through riverine systems into the bay), atmospheric deposition both on the surface of the bay and within the watershed, point sources (e.g., discharges from wastewater treatment systems and industrial facilities), and internal sources within the bay itself. Although there are ongoing studies, including the Tampa Bay Atmospheric Deposition Study, to better quantify actual deposition in the Tampa Bay area, available analyses indicate that atmospheric deposition is an important source of nitrogen loading to Tampa Bay. The water quality of Tampa Bay varies from "good" in Lower Tampa Bay to "fair" in portions of Hillsborough Bay which historically have had water quality problems such as high levels of chlorophyll a. The water quality of Cockroach Bay reflects the water quality in adjacent Middle Tampa Bay, which has been characterized as "poor" during certain times of the year due to relatively high chlorophyll a levels. Due to nutrient inputs and other factors such as dredge and fill activities, prop-scarring from motor boats, and other physical activities, portions of Tampa Bay, including Cockroach Bay, have experienced significant losses in historical seagrass coverage. In recent years, however, seagrass coverage has increased in Tampa Bay overall. Lake Manatee is another water body of potential concern located near the Plant within the Tampa Bay watershed. Lake Manatee is a man-made lake which supplies drinking water to Manatee County, Sarasota County, and various municipalities. Based upon its trophic state index of 50 to 60 for the past few years, Lake Manatee has water quality in the upper end of the "good" range. However, Manatee County treats Lake Manatee with copper sulfate to prevent blooms of blue-green algae which can create taste and odor problems in the water. Studies have determined that nitrogen is the limiting nutrient of Lake Manatee and that nitrogen levels have increased. Due to high color levels and other factors, however, Lake Manatee appears to be a dystrophic system in which primary nutrients, such as phosphorus and nitrogen, are not responsible for most of the plant growth. In fact, the most recent study of Lake Manatee water quality indicates that algal growth there has a stronger correlation to temperature and specific conductance than to total nitrogen. In addition, the blue-green algae associated with taste and odor problems in lake water have the ability to "fix" nitrogen from the atmosphere and, therefore, have a competitive advantage over other algae in the absence of external nitrogen inputs. To assess potential impacts of the Project on water quality in the Tampa Bay area, the effect of proposed NOx emissions on nitrogen deposition in the Tampa Bay watershed was calculated using the best tools reasonably available. Assuming a NOx emissions rate of 0.23 lbs/mmBtu following the conversion to Orimulsion as proposed with the stipulated conditions of certification, the Plant's contribution will be 1.25 percent of the total nitrogen deposition in the watershed. Based upon consideration of background deposition in more pristine locations in Florida and local deposition within the Tampa Bay area, as well as a comparison of current and projected emissions from the Plant with regional NOx emissions, NOx emissions from the converted Plant will result in a less than 0.8 percent increase in nitrogen deposition throughout the Tampa Bay watershed. Additionally, the estimated increase in nitrogen deposition was apportioned among the various segments of the watershed based upon the results of dispersion modeling. Atmospheric nitrogen can reach Tampa Bay and other water bodies through direct deposition on the water surface as well as "indirect deposition" and subsequent runoff from land surfaces within the various segments of the watershed. Due to soil absorption and plant uptake, however, not all atmospheric nitrogen deposited within the watershed ultimately reaches Tampa Bay. Using the Project's calculated impact on nitrogen deposition and conservative runoff coefficients for the "indirect deposition" component, nitrogen loading budgets were calculated for Tampa Bay and its various segments, as well as Lake Manatee. Existing nitrogen loadings are on the order of 3,000 metric tpy for Tampa Bay and 300 metric tpy for Lake Manatee. In comparison, the increase in nitrogen loadings attributable to the Project is on the order of 21 metric tpy (or 0.69 percent) for Tampa Bay and 1.2 metric tpy (or 0.39 percent) for Lake Manatee. In light of the existing loading to these systems, the predicted increases attributable to the Project are insignificant. Because these loading analyses are based upon a NOx emissions rate of 0.27 lbs/mmBtu, actual impacts on nitrogen loading are expected to be less in light of the lower 0.23 lbs/mmBtu emissions rate subsequently agreed upon in the stipulation between FPL, DEP, Pinellas County and EPC. Although nitrogen within the water column will deposit in the sediments, increased nitrogen loadings will not have an extended cumulative effect over time because the amount of nitrogen available to the system ultimately reaches equilibrium as a result of a continual burial process. Additionally, other processes, such as denitrification, decrease the amount of nitrogen in the sediments. Accordingly, marginal increases in atmospheric deposition of nitrogen have only marginal effects on sedimentary nitrogen concentrations and internal loadings. To assess the Project's impact on biological activity in surface waters in the vicinity of the Plant, laboratory tests were performed on water samples collected within the Lower Tampa Bay, Lake Manatee, Cockroach Bay, the Little Manatee River, the Manatee River, and Lake Manatee utilizing the algal assay procedure (AAP). AAP is a procedure developed and recommended by EPA to determine the effect of increased nitrogen loadings on algal growth within receiving marine or freshwater systems. Under the AAP, water samples taken from the field are spiked with varying levels of nitrogen as well as algae with a given growth potential. After the spiked samples are set aside for five to seven days, algal growth is measured and comparisons between the spiked and control samples are made to determine the effect of the nitrogen additions. In each of the AAPs performed, no statistically significant increase in algal growth was noted with nitrogen additions up to 10 times the amount anticipated from the Project. FPL provided reasonable assurances that nitrogen loadings attributable to the converted Plant will not have a significant adverse impact on water quality or biological activity in any marine, estuarine, or aquatic systems in the Tampa Bay area. The evidence indicates that the impact is likely to be so small that it will be difficult to measure and distinguish from natural fluctuation in nitrogen levels. For the same reason, FPL has provided reasonable assurances that, when considered in conjunction with nitrogen loadings of the same order from other NOx emission sources which have been permitted but have not begun operation in the Tampa Bay area, the Project will not cause or contribute to an imbalance in natural populations of aquatic flora and fauna or a dominance of nuisance species in Tampa Bay, including Cockroach Bay. Likewise, because nitrogen loadings from the Plant are not expected to have a significant adverse impact on algal growth, such loadings are not expected to impact other flora, other trophic levels, such as seagrasses or fisheries production, or transparency levels in Tampa Bay. In their case, Manasota-88 and MCSOBA presented two expert witnesses who generally opined that 20 tons of additional nitrogen would be detrimental to Tampa Bay, would cause an imbalance of aquatic flora and fauna in violation of DEP's nutrient rule, as well as violations of DEP's transparency and nuisance rules, and that nitrogen loading to Tampa Bay has the potential to be a cumulative problem. The expert witnesses presented by Manasota-88 and MCSOBA did not perform or make reference to any studies or other analyses that contradict the analyses performed by FPL's expert witnesses related to nitrogen deposition impacts. Theirs was more of a qualitative evaluation. Clearly, seagrass coverage in Tampa Bay and Cockroach Bay has declined due in large part to shading from algal growth resulting from nitrogen. It follows logically, in their opinion, that adding 21 tons of nitrogen a year to current and future levels cannot help, but can only hurt, even if the impact is too small to measure. They urge that DEP should prohibit any increases in nitrogen loading to Tampa Bay, in accordance with the recommendations resulting from the federally-funded National Estuaries Program (NEP) study of Tampa Bay, including any increases from atmospheric deposition. Regulatory links between air emissions and water quality criteria are developing through the policy of management. But DEP historically has not regulated atmospheric deposition of nitrogen to surface waters, and ecosystem management has not yet matured to the point where DEP is ready to begin regulating atmospheric deposition of nitrogen as a surface water discharge subject to surface water quality permit review. If it does, it is possible that some recommendations of the NEP Tampa Bay study on nitrogen loading to Tampa Bay could be achieved through new surface water quality permit review of nitrogen loading through atmospheric deposition. Such regulation may result higher power generating costs from stricter NOx emissions limits, but it may be determined that those costs would be lower than the costs of trying to rehabilitate water bodies after nitrogen has been deposited and loaded into them. In the absence of such regulation, however, FPL nonetheless has provided reasonable assurances that nitrogen deposition resulting from NOx emissions from the converted Plant will not have any meaningful or measurable impact on water quality, biological activity, or transparency in any marine, estuarine, or aquatic system in the Tampa Bay area. Human Health Risks Associated with Proposed Air Emissions Despite increased plant utilization, there will be no increase in either short term or annual emissions of any hazardous air pollutants (HAPs) or other "air toxics" as a result of the conversion to Orimulsion. To assess potential health- related impacts of Project emissions, air dispersion modeling was conducted to predict ambient concentrations of HAPs and other air toxics. The predicted ambient concentrations for all HAPs and air toxics except vanadium are below ambient reference concentrations (ARCs), which are conservative screening values established for various air toxics in DEP guidelines. Predicted concentrations of vanadium exceed the ARC for the 24-hour averaging period at the maximum point of impact within the plant site, but the exceedance is very small (i.e., at the third decimal place), and the ARC is between 100 and 1000 times lower than any exposure level shown to cause effects in humans. Moreover, vanadium is not bioaccumulative and does not have any interactive effect with other substances. Accordingly, the proposed level of vanadium emissions does not pose a significant threat to human health. Although there is no regulatory requirement for a formal risk assessment, a multi-pathway risk assessment was performed to evaluate potential human health impacts of air emissions from the converted Plant. Whereas the ARCs established by DEP address only the inhalation pathway of exposure, the multi-pathway risk assessment considered the cumulative effect of oral and dermal exposure in addition to inhalation exposure to all pollutants emitted from the converted Plant. Utilizing conservative assumptions, the multi- pathway risk assessment analyzed potential exposures to residential and occupational populations, including potentially sensitive populations such as children and persons who live and work near the Plant. Based upon the results of the multi-pathway risk assessment and other analyses, the health risks from operation of the Plant while firing either oil or Orimulsion are negligible. Compared to historical operation with No. 6 fuel oil, future operations following conversion to Orimulsion would provide a benefit from a toxicological and risk assessment standpoint. Plant Water Supply and Use Water Supply FPL is currently withdrawing water from the Little Manatee River under a valid Permit Agreement entered with the SWFWMD in 1973 and amended in 1975. As part of the Project, FPL will significantly reduce the amount of water it is allowed to withdraw from the Little Manatee River. Maximum allowed withdrawals for the 16-year period 1978-1993 could have been up to an average of 28.4 million gallons per day (MGD) under the Permit Agreement. By way of comparison, if the stipulated Conditions of Certification had been in effect during the same 16-year period, withdrawals would have been approximately 9.4 MGD (average) if FPL had used the full 10 percent maximum allowable withdrawals. Following the conversion to Orimulsion, the Plant will have similar requirements for cooling and process water but at increased quantities over historical levels of use. The existing Permit Agreement between FPL and the SWFWMD would allow FPL to obtain sufficient water for all its Project needs under its currently authorized withdrawals from the Little Manatee River. Rather than obtaining all the needed water from the Little Manatee River, however, the additional 9.5 MGD of water needed for the Project above historical levels will be supplied through the use of 5 million gallons per day of reclaimed water from local wastewater treatment facilities, or equivalent sources of water, and 4.36 MGD of groundwater from existing permitted sources. The order of priority for meeting the Plant's water needs following conversion to Orimulsion will be: (1) 5 MGD of reclaimed treated wastewater delivered to the cooling pond; (2) existing permitted groundwater withdrawals of 4.36 MGD for use in either the cooling pond or directly in the plant's process water systems; and (3) the use of withdrawals from the Little Manatee River, up to 10 percent of the daily flow, to meet the remaining water needs of the plant. Predicted diversions from the Little Manatee River would average approximately 8.3 MGD. This is approximately the same as historical diversions from the River since 1974 (including the "big gulp" to fill the cooling pond initially), compared to the approximately 6.4 MGD withdrawn during the 16-year period 1978-1993. The stipulated Conditions of Certification provide for reclaimed water to be used following conversion to Orimulsion will be treated wastewater supplied by the Manatee Agricultural Reuse Supply (MARS) system or other reclaimed water source. (At the time of the final hearing, negotiation of the terms of FPL's use of MARS reuse water had not yet been completed.) FPL will be able to take this treated wastewater during periods of time when farmers will not need such water for agricultural uses. Thus, deliveries to FPL could range between 2 MGD and 14 MGD. FPL's use of reclaimed water from MARS would allow the County to expand that program by providing a baseload amount of water to be taken by FPL from that system. This would allow Manatee County to avoid having to build other storage facilities for treated wastewater. FPL will install three new groundwater wells west of the cooling pond to obtain 4.36 million gallons per day of groundwater from the Floridan aquifer for use in the Plant following conversion to Orimulsion. These new wells will be constructed to meet current SWFWMD well construction standards and replace older wells that do not meet current standards. The new wells would lessen the existing impacts on the upper aquifers by preventing the exchange of contaminants between the aquifers. This quantity of water represents amounts already permitted for use both at the Plant site for plant use and on-site agricultural operations and at adjacent agricultural operations. An additional 2.7 MGD of reclaimed water will be supplied to the adjacent agricultural operations to replace the existing, permitted, off-site groundwater withdrawals that are being transferred to FPL's use. Withdrawals from the Little Manatee River will be made using the computerized withdrawal system operated by FPL under a diversion schedule that allows increased withdrawals as river flow increases. This system is controlled by using river stage height as an indicator of river flow rate. This system allows FPL to respond quickly to changes in river elevation when making withdrawals. This system will be reprogrammed to the new diversion curves to prevent withdrawals above 10 percent of the river flow on a daily basis. Withdrawals from the Little Manatee River under the proposed Conditions of Certification would not occur when the flow in the Little Manatee River is below 40 cubic feet per second (cfs). Forty (40) cfs is the minimum flow level established by the SWFWMD to protect the ecology of the Little Manatee River. The pumps can withdraw no more than 190 cfs. If the water level in the cooling pond falls below 62 feet above mean sea level (msl), FPL is authorized by the proposed Conditions of Certification to request approval from SWFWMD to increase withdrawals above 10 percent of stream flow from the Little Manatee River to restore the pond water level to 63 feet above msl. Such withdrawals would be made in accordance with three "emergency diversion curves" that limit withdrawals from the River on a seasonal basis with higher withdrawals during the wet season. The three sources of water to be used by the Plant following conversion to Orimulsion represent the lowest overall quality of water suitable for operation of the Plant. Withdrawals of groundwater and surface water from the Little Manatee River are regulated by Chapter 373, F.S., and Chapter 40D-2, F.A.C. The proposed withdrawals do not interfere with existing legal users, are reasonable-beneficial uses, are in the public interest, and otherwise comply with all applicable requirements of those chapters. Cooling Pond FPL performed analyses of the cooling pond's thermal performance and predictions of future water quality in the cooling pond, following conversion to Orimulsion and increased utilization of the Plant. A computer-based energy balance model demonstrated that the pond would operate within the desired temperature limits, and maximum water levels. Water quality in the cooling pond following 20 years of operation was also predicted using several computer models. Water quality concentrations after 20 years were predicted with a mass balance model simulating various water inflows to the pond and evaporation rates from the pond. These results were then evaluated using a metal speciation model called MINTEQ which predicted precipitation of various chemical constituents and predicted final water quality in the pond. These results were used to evaluate impacts to groundwaters. Currently, the Plant site has three existing, permitted surface water discharges to the Little Manatee River: cooling pond discharges resulting from excessive rain events; discharges which occur during spillway gate tests performed as part of FPL's cooling pond embankment safety program; and (3) overflows which may occur during loss of power or malfunction in the sump pumps in the toe drain system of the pond. Following conversion to Orimulsion, several of these permitted discharges to the Little Manatee River will be eliminated. First, the cooling pond will be operated to contain significant rain events up to a 100-year/24-hour storm event. To accomplish this, the cooling pond level will be maintained at a lower elevation below the spillway crest to allow sufficient freeboard to hold such a storm. While FPL will continue to conduct annual spillway gate tests as part of its safety program for the cooling pond, the gate tests will be conducted in a manner to insure that there will be no discharges to the Little Manatee River. New power sources will be provided to the sump pumps in the toe drain system to increase the reliability of power and to minimize overflows from those sumps. Impacts of Groundwater Withdrawals and Discharges The Project may result in impacts to groundwater resources as a result of discharges from the cooling pond and from groundwater withdrawals. FPL evaluated the potential impacts of these activities on groundwater levels and quality. To serve the Project, FPL proposes to install three new groundwater wells to replace existing permitted wells that serve adjacent agricultural operations. The 4.36 MGD of authorized withdrawals from the existing agricultural wells will be reallocated to the new FPL wells, and the agricultural water use will be met using treated wastewater. FPL conducted modeling of the withdrawals from the three proposed wells to identify the drawdown of groundwater levels in the area. FPL utilized a computer model known as MODFLO to evaluate withdrawals for a period of 20 years. Water levels in the three aquifers underlying the Plant site and in nearby existing wells will not be significantly impacted by the relocation of the withdrawals, effects on surface water bodies such as wetlands that are in and connected to the surficial aquifer will be insignificant, and the proposed pumping will not cause a drawdown of more than one foot below any wetland at or near the Plant site. Although it is not clear exactly how much of permitted capacity is being withdrawn from the existing wells that would be replaced by the three new wells proposed by FPL, FPL gave reasonable assurances that the net impact of the three replacement wells will be negligible and will not cause movement of the saltwater interface in the area around the Project. Groundwater at the site is classified as G-II groundwater. Based on the water quality modeling of the cooling pond, six constituents present in the cooling pond and in the seepage from the pond in the surficial aquifer would be above FDEP's groundwater standards. Only one of these constituents - sodium - would exceed primary drinking water standards; the other five constituents are all secondary standards. The cooling pond is an "existing installation" for purposes of groundwater discharges under Rule 62-522.200, F.A.C., because FPL had a completed application for a discharge permit on file with DEP as of January 1, 1983, and because the cooling pond was reasonably expected to release contaminants into the groundwater on or before July 1, 1982. Groundwater discharges from the cooling pond and other existing installations must meet primary drinking water standards at the boundary of the zone of discharge (ZOD) and are exempt from meeting secondary groundwater standards. (Rule 62-520.520, F.A.C.) Under Rule 62-520.200(23), F.A.C., ZODs are allowed to provide an "opportunity for the treatment, mixture or dispersion of wastes into groundwaters" both vertically and horizontally under the installation. Under the stipulated Conditions of Certification, the existing cooling pond will have a ZOD "horizontally to FPL's property line, and vertically to the bottom of an aquifer within the Arcadia Formation, the top of which aquifer is not higher than 50 feet below the surficial aquifer, and not lower than the top of the Tampa Member of the Hawthorne Group as defined in [Florida Geological Series] Bulletin No. 59" (which is a point vertically within the confining unit underlying the surficial aquifer and above the intermediate aquifer). The final compliance point for the vertical depth of the ZOD will be determined during the DEP's review of the groundwater monitoring plan submitted following certification. This ZOD represents a vertical expansion of the ZOD granted under current FDEP permits. The current ZOD extends to the base of the surficial aquifer; the expanded ZOD would extend into, but not through, the confining unit below the surficial aquifer. The reason for the expanded ZOD is the change in water quality in the cooling pond resulting from the use of reclaimed water as a source of makeup water for the cooling pond. The expanded ZOD will not extend beyond FPL's property boundaries. ZOD's normally are not set within a confining layer. However, some confining layers contain aquifer units that are large enough for ground water monitoring purposes. Properly located and installed, a groundwater monitoring well tapping a suitable aquifer unit within a confining layer will not constitute a risk of contamination of the underlying aquifer units. FPL analyzed impacts of groundwater discharges from the cooling pond on groundwater in the vicinity of the Plant site laterally and vertically. Based on these evaluations, there will be no exceedance of either primary or secondary groundwater quality standards at the lateral edge of the ZOD at FPL's property line for the 20-year life of the Project. There also will be no violation of groundwater quality standards at the bottom edge of the ZOD. The groundwater discharge will not significantly impair any designated use of receiving groundwater or any surface water nor will it result in a violation of any applicable groundwater standard outside the ZOD. At the edge of the Little Manatee River, there will be no exceedance of either primary or secondary maximum contaminant levels. Discharges to groundwater from the cooling pond will comply with Class G-II groundwater standards and with applicable surface water standards at the edge of the proposed ZOD. The ZODs for other existing on-site facilities, including the solids settling basin, the neutralization basin, and the sanitary drainfield, will extend horizontally to FPL's property line and vertically to the base of the surficial aquifer underlying those facilities. Other sources of potential discharge to groundwater are two former locations of underground fuel tanks, since removed, that are currently in the process of assessment and clean up. The contamination is not migrating and does not represent a threat to groundwater resources at, or beyond the boundaries of, the Plant site. Wetland Impacts and Mitigation Jurisdictional wetlands in the Project area, rail curve construction area and the by- product storage and disposal areas were delineated under a binding jurisdictional declaratory statement issued by the DEP on May 10, 1995. For the total Project, approximately 18.18 acres of State jurisdictional wetlands will be impacted, of which approximately 16.5 are jurisdictional to SWFWMD. Construction at the Plant site, temporary by-product storage area and the rail curve will impact approximately 0.68 acre of jurisdictional wetlands, which are primarily ditches. Construction of the backup by-product disposal area will impact approximately 17.5 acres of mostly highly disturbed, low-quality wetlands located in tomato fields adjacent to the Plant site. The Project has been designed and sited to avoid and minimize wetland impacts. Proposed wetland activities will have minimal adverse ecological or other effects. Using an ecosystems approach to mitigation, FPL has proposed the preservation, enhancement and restoration of a 129.6-acre area located on the northern site boundary. The mitigation area contains seven high-quality upland and wetland ecological communities, including over one-third mile of the Little Manatee River. The mitigation area is located within an extensive corridor of lands considered to have important ecological resource values and targeted by SWFWMD and Hillsborough County for potential acquisition. FPL's activities within the mitigation area will include, among other things, removal of exotic species, planting of native species in disturbed and eroded areas, and protection and management of the site as a wildlife habitat area. Based on a habitat function evaluation, the estimated value of the mitigation area compared to the impacted wetlands is 15 to 1. The proposed mitigation will provide environmental benefits beyond required mitigation and will be more than sufficient to offset all adverse effects caused by the wetland activities. Although the backup by-product disposal area is unlikely to be constructed, the stipulated Conditions of Certification require FPL to provide mitigation for the impacts at that site regardless of whether the backup by-product disposal area is ever constructed. In addition to the 129.6-acre area provided as mitigation for wetland and other impacts, FPL will preserve an environmentally sensitive area near Tampa Bay and 30-foot upland buffers adjacent to the Little Manatee River. FPL has also offered to convey to SWFWMD additional lands along the Little Manatee River within the Save Our Rivers Program area. The Project complies with all applicable requirements for permitting wetlands impacts, including sufficient mitigation for such impacts, provided in Chapters 403 and 373, F.S., and Chapters 62-312, 62-340, and 40D-4, F.A.C. Wetland activities are in compliance with the Manatee County Comprehensive Plan and Land Development Code, so long as the County's recommended variance from strict replacement mitigation required in the Plan and Code is included in the certification. The variance would allow the quality of the existing wetlands and uplands to be enhanced, and there would be assured preservation of wetlands to a greater degree than would normally be required. Creation of wetlands to replace impacted wetlands on strict numerical ratios and exact type-for-type basis may not always be successful. FPL's proposed enhancement and preservation of a large portion of riverine and uplands ecosystem is the preferred approach. Impacts to Flora and Fauna including Listed Species There will be no significant impacts to wildlife or plants, including listed species, from the Project. The mitigation proposed by FPL will more than compensate for any minimal effects on wildlife and plants, including listed species. Extensive ecological surveys were conducted on foot from early 1994 until September 1995 to determine wildlife and plant usage. Ninety percent of FPL's entire property was surveyed and the Project area was surveyed in detail along transects. In addition, scientific literature was reviewed to determine the likelihood of occurrence of species listed by the GFC and the U.S. Fish and Wildlife Service (USFWS). Only one listed wildlife species, the American alligator, which occasionally uses portions of the site, was observed. The alligator is given the lowest protection level, that of species of special concern, by the GFC and is listed as threatened by USFWS because of similarity to another protected species. Given the low habitat value resulting from the agricultural and industrial uses in the Project area, no other listed wildlife species was determined to have a high probability of occurrence. As requested by the GFC, prior to construction FPL will again conduct wildlife surveys for listed species and provide the results to the GFC. Impacts of Water Withdrawals on Little Manatee River and Tampa Bay The Little Manatee River is one of the most studied rivers in Florida, and extensive scientific literature is available on the River. The River is subject to tidal influence and is an estuarine system for approximately 10 miles from its mouth. In addition, the River is very responsive to rainfall and its freshwater flows vary greatly during the year and between years, ranging from very low flow to flows of thousands of cubic feet per second (cfs). This flow pattern results in extreme fluctuations in salinity in the estuary. The flora and fauna of the estuarine zone of the River are well adapted to the fluctuations in flow and salinity. In fact, many saltwater animal species rely on their tolerance to extreme conditions to use the low salinity estuarine habitat of the River, which is rich in food sources and low in predators, as a nursery. The Plant's existing withdrawals from the Little Manatee River have not caused adverse impacts to the ecology of the Little Manatee River or Tampa Bay. SWFWMD permitting requirements contain a presumption that withdrawals of up to 10 percent of daily flow from a stream will not cause unacceptable environmental impacts. See Chapter 40D-2, F.A.C., Part B, Basis of Review for Water Use Permit Applications, 4.2.C.2. FPL and SWFWMD provided unrebutted expert testimony and evidence that the proposed withdrawals of water from the Little Manatee River, including the emergency withdrawals which may exceed 10 percent of flow, will have no adverse impacts on the flora and fauna and water quality of the River and Tampa Bay. Using extensive environmental data collected by SWFWMD and other agencies, salinity in the River was modeled and extensively analyzed for three withdrawal scenarios for the 16- year period, 1978-1993: historical (existing) FPL withdrawals; proposed withdrawals following conversion; and river flows as if no withdrawals had ever taken place. For the three withdrawal scenarios, these analyses included the frequency of occurrence and the duration, of various salinity concentrations for a number of locations along the River. Following the conversion of the Plant to Orimulsion, minimal, temporary changes in salinity will occur only in areas which naturally experience extreme fluctuations in salinity. Because withdrawals will be prohibited when River flow is below 40 cfs, when salinity moves farthest upstream, the withdrawals of freshwater will not cause saltwater to move upstream into areas of the River which have always been fresh. Estuarine organisms thrive within two interrelated habitats: (1) a dynamic salinity- concentration habitat which shifts up- and downstream with tides and freshwater flows; and (2) a static physical habitat containing vegetation preferred by estuarine organisms. Productivity is highest for organisms during periods when their preferred dynamic salinity habitat overlaps their preferred vegetative habitat. Salinity of ten parts per thousand (10 ppt) is generally considered to be a significant boundary of the estuarine low salinity nursery habitat; it includes the part of the river where salinity is sometimes but not always less than 10 ppt. The proposed withdrawals will not affect the location of the dynamic salinity habitat. In fact, salinity areas of less than the 10 ppt salinity boundary of concern will be affected less under the proposed withdrawals than they have been under the historical withdrawals. Static vegetative habitats in the estuarine portions of the Little Manatee River generally fall into three zones comprised of plants whose success depends upon prevailing salinity concentrations. The first, most-saline zone, nearest the River's mouth, is dominated by mangroves. The second zone, which generally comprises the low-salinity nursery, is dominated by juncus (black needlerush) and the third is dominated by tidal freshwater species. Because the durations of salinity concentrations in the River will not be significantly altered by the proposed withdrawals, the boundaries of these static vegetative habitats will not be affected. Modelling and analyses were also undertaken to predict the relationship between salinity and location of maximum population abundance ("AMAX") for four representative fish species found in the Little Manatee River. Results showed that the minimal changes in salinity caused by the proposed withdrawals, including emergency withdrawals, may cause minimal, temporary population shifts but will not result in movement of fishes outside the ranges where they presently commonly occur. Moreover, since the fisheries within the River are not affected, the withdrawals will not affect the productivity of the regional fisheries in the River or Tampa Bay. The Little Manatee River contributes a small fraction (10.7 percent) of total annual freshwater flows into Tampa Bay. These annual average freshwater flows may be reduced by .003 percent by the proposed withdrawals, based on analysis of data for the 20-year period 1973-1993. The proposed withdrawals will have an insignificant effect on freshwater inputs to Tampa Bay. Moreover, any impacts on salinity levels in Tampa Bay from the proposed withdrawals will be limited to the area around the mouth of the River and will not affect biological resources in Cockroach Bay or the rest of Tampa Bay. FPL also analyzed the potential effect on riverine vegetation from any lowering of water levels in the Little Manatee River due to the proposed withdrawals. Vegetation and its water sources and needs were analyzed at representative cross sections of the upper and lower River. Results showed that the proposed withdrawals will have no effect on riverine vegetation due to changes in water levels. Riverine plants in the upper, narrow channelized freshwater portion of the River, where the withdrawals are made, are very tolerant of extremes in water availability, from drought to floods. As an example of the most extreme predicted effect from the proposed withdrawals, the water in the vicinity of the USGA gauging station at U.S. Highway 301 near the Manatee Plant would not reach the lowest river bank level (scarp), on average, five more days during the year (i.e., 91.34 percent of the days in the year) than without any withdrawals (when it would be below the first scarp 89.9 percent of the days in the year), difference of just 1.44 percent. Differences would be only 0.48 percent for the next scarp and even less for the remaining three scarps. This difference in water level would have no effect on riverine plants because they are naturally adapted to endure many weeks of drought. Similarly, there will be no impacts on vegetation in the lower portion of the River. This area is tidally influenced and the cross section analyzed was 700 feet wide compared to the 90-foot-wide channelized upper River cross section. Thus, given the huge volume of water in the lower River, the impact of the proposed withdrawals on water levels in this area would be too small to measure and too insignificant to have any effect on the vegetation. Due to their high tolerance, the estuarine flora and fauna in the River will not be affected by minimal additional fluctuations in salinity and flow. The proposed withdrawals from the Little Manatee River will result in flow and salinity fluctuations which are within existing natural ranges. Potential Impacts of Fuel Spills FPL adopted a three-pronged approach in addressing the potential for Orimulsion spills in Tampa Bay, i.e., spill prevention, spill mitigation, and understanding the ecological effects of any Orimulsion which may be released into the environment. Spill Prevention FPL and Bitor America Corporation, the fuel supplier, have put significant effort into preventing an Orimulsion spill. In the United States, there is presently a risk of a 1,000-barrel or larger fuel spill for every 10,000 port calls. The two major causes of major spills are groundings and collisions. Bitor America Corporation has committed to numerous management practices which constitute safety measures in excess of regulatory requirements to minimize the potential for spills. These additional safety measures include: All vessels and vessel owners used to transport Orimulsion from Venezuela to Port Manatee will be screened using a vetting system to eliminate the possibility of substandard ships and crews being used to transport Orimulsion into Port Manatee. Criteria to be used in screening vessels and vessel owners include limiting vessel age to no more than 10 years, requiring pumps and equipment on board to be specifically designed for Orimulsion, requiring vessels to be classified and crews to be licensed by the best classification societies, ensuring the vessels have in excess of $500 million insurance to cover accidents with a financially capable insurance company (this is in addition to the $250 million insurance Bitor America carries on the fuel for spills), limiting the crew to two languages, and requiring the vessel to have a proven safety record and adequate operational and safety management procedures. All vessels will be required to have double hulls with average compartment sizes no larger than 40,000 barrels. Use of double-hulled vessels will reduce the risk of a spill from a grounding by about 90 percent and from a collision by about 29 percent. Use of compartmentalized vessels will prevent the entire cargo from being released to the environment in the event of a rupture. All vessels will be required to have 20,000 barrels of empty cargo capacity on board. This would allow the transfer of Orimulsion from one compartment to another in case of an accident. Each vessel will have on board a Vessel Information Positioning System (VIPS) for Tampa Bay which will show where the vessel is in relation to other vessels and to the shipping channel during its transit of Tampa Bay. While VIPS is not yet in place, it is expected to be in operation by 1998. VIPS will be funded by users, and Bitor America Corporation has committed to being a user of the system once it is in place. All vessels will be required to maintain a course at least 10 miles off the Florida coast prior to turning into Tampa Bay, rather than the 3-mile clearance required by the U.S. Coast Guard. This requirement will keep vessels away from shallow water, thus reducing the risk of groundings. Prior to turning into the Egmont Key Channel and entering Tampa Bay, the vessels will be required to have at least three miles of visibility. Just west of Egmont Key, the vessel's emergency tow lines will be deployed for use by a tugboat, if necessary. Each vessel's entrance into the channel will be timed so it reaches the Turning Point into the Port Manatee channel at high tide and slack water. This requirement will provide maximum water depth and minimum current influence for the vessel when making the turn from the Tampa Bay channel into the Port Manatee channel. From Mullet Key to Port Manatee, a floating safety zone will be observed for all vessels carrying Orimulsion to the Plant. The floating safety zone, which will be enforced by the U. S. Coast Guard, will prevent other vessels from being within 1,000 yards of the front or rear of the vessel carrying Orimulsion and from being within 200 yards on either side of the vessel. This will effectively make the shipping channel a one- way channel for Orimulsion-carrying vessels. As vessels pass Egmont Key, they will take on two 4,000 horsepower escort tractor-type tugs which will escort the vessel through the channel using the floating safety zone. The U. S. Coast Guard has determined that escort tugs are an effective means of minimizing the chance of a grounding as a result of the vessel's loss of steering or power. At the Turning Point from the Tampa Bay channel to the Port Manatee channel, the vessel will become attached to the escort tugs through its deployed tow lines and will be assisted into the docking area. A weakness of FPL's SCA is that it is not clear to what extent Bitor's commitments are enforceable by the Siting Board. Bitor is not a co-applicant. None of Bitor's commitments are made part of the conditions of certification, and many of them are neither in the SCA nor in the sufficiency responses. To be made enforceable at least against FPL, they should be made part of the conditions of certification. FPL will also exceed regulatory requirements during offloading of Orimulsion by utilizing a secondary hose containment sleeve, or its equivalent, for its offloading hoses to minimize the probability and volume of any spills during offloading at Port Manatee. This secondary containment should effectively contain any Orimulsion that may be released as a result of a leak from connections in the offloading hose or a burst offloading hose. With the management practices to which Bitor America Corporation and FPL have committed for the transport and offloading of Orimulsion, the risk of a 1,000-barrel or larger spill occurring has been reduced to once every 77,000 port calls. Although the number of port calls for fuel delivery to the Plant will approximately double after the conversion to Orimulsion, the risk of a spill occurring in any given year will nevertheless be reduced to about one-fourth the present risk. Spill Mitigation While offloading Orimulsion from vessels at Port Manatee, FPL will comply with all applicable federal, state and local regulatory requirements. For example, FPL will provide booming at the dock on either side of the offloading hose, either in the form of a booming gate system or a deep-skirted boom between the dock and the vessel. The transport of Orimulsion from Venezuela to Port Manatee will also comply with all applicable requirements of the U.S. Oil Pollution Act of 1990 (OPA '90). Bitor America Corporation and its sister company, PDV Marina-Venfleet, have prepared a spill contingency plan which will be used by vessels carrying Orimulsion into Tampa Bay. This plan has been approved by the U. S. Coast Guard. Bitor America Corporation also has adopted a corporate spill response plan which offers technical information on Orimulsion spills to assist its customers or vessel owners in the event of an accident. An atlas of sensitive environments in Tampa Bay has also been assembled by contractors to Bitor America Corporation which identifies strategies for responding to an Orimulsion spill in the area of each sensitive habitat in Tampa Bay. While Bitor America is satisfied with the equipment for responding to Orimulsion spills which it has identified in its spill response plans, it is constantly looking for new equipment. As new equipment is identified and demonstrated to be effective in responding to an Orimulsion spill, Bitor America Corporation will modify its plans to include the new equipment. FPL has three spill response plans which would potentially have application to a spill of Orimulsion -- the FPL Port Manatee Terminal Oil Spill Response Plan, the Manatee Plant Oil Spill Response Plan, and FPL's Corporate Oil Spill Response Plan. Each of these plans has received all necessary regulatory approvals, and FPL could lawfully bring Orimulsion into Port Manatee under the current version of these plans. Nevertheless, FPL will expand its plans to include the recently developed Orimulsion-specific spill response tools and strategies before Orimulsion is delivered to Port Manatee for the Plant. Those updates will be reviewed and approved by the Coast Guard, the U. S. Environmental Protection Agency, and the U. S. Department of Transportation to ensure the revisions meet applicable regulatory requirements. The FPL Port Manatee Terminal Oil Spill Response Plan applies to the offloading hose, the transfer piping from the dock to the terminal, the on-site storage tanks at the terminal, and the transfer and piping system to the Plant. The Manatee Plant Oil Spill Response Plan applies to the on-site storage of fuel at the Plant and the piping to the Plant's boilers. FPL's Corporate Spill Response Plan is supported by a corporate response team that has been established to respond to spills that are beyond the capabilities of the local on-site team. FPL has developed a 2-volume oil spill contingency planning system. Volume 1 consists of the appropriate facility's oil spill response plan, e.g., the plans for the FPL Port Manatee Terminal or the Plant; Volume 2 consists of the corporate response plan. FPL's corporate response team includes approximately 40 positions, typically with two individuals trained for each position at all times. The team members participate in annual training exercises and are on-call 24 hours a day, every day of the year. In the event of a spill, response is directed utilizing a unified command concept, in which decisions to guide response operations are jointly made by the FPL incident commander, the U.S. Coast Guard on-scene coordinator, and the Florida on-scene coordinator. Typically, the U. S. Coast Guard on-scene coordinator is the Captain of the Port, and the Florida on-scene coordinator is the manager for emergency response from the Department of Environmental Protection. The U. S. Coast Guard on-scene coordinator has the authority to take over the spill and direct all response operations if deemed necessary. FPL's spill response methodologies which would be followed in the event of an Orimulsion spill have been successfully employed historically by FPL and the oil industry. In the event of an Orimulsion spill in the Tampa Bay area, FPL should be able to assemble its crews and equipment and begin recovery activities within four hours. This response time is achieved in FPL's annual spill response drills. Orimulsion and No. 6 fuel oil react differently when released in seawater such as that found in Tampa Bay. When No. 6 fuel oil is released in seawater, a very large fraction of the mass almost immediately forms a slick and float to the surface. Underneath the slick, a relatively low fraction of the mass dissolves in the water. By contrast, when Orimulsion is released in seawater, its components disperse in the water column almost immediately. In a shallow, dynamic system such as Tampa Bay, even at low salinity levels, Orimulsion components would be well- mixed throughout the water column. Other processes which affect the fate of Orimulsion and No. 6 fuel oil in seawater such as Tampa Bay include vertical motion (buoyancy), dispersion (both lateral and vertical), dissolution, sedimentation (absorption of fuel particles onto sediments), biodegradation (including chemical and photolytic degradation), entrainment, coalescence and evaporation. All of these processes were incorporated as parameters into a 3- dimensional fates model, known as SIMAP, to predict the movement of Orimulsion and No. 6 fuel oil released in Tampa Bay. SIMAP, which stands for "Spill Impact Mapping," includes a series of 2- and 3- dimensional fates models which evaluate trajectories, transport and weathering of the constituents of spilled fuels. One SIMAP model runs multiple times to provide a probable distribution of fate. SIMAP has been enhanced based on the results of peer- reviewed scientific research to include algorithms for the fates processes affecting the constituents of Orimulsion so that it now has the capability of evaluating the fate of Orimulsion spills. SIMAP is capable of accurately predicting the fate of Orimulsion accidentally spilled in the Tampa Bay environment, including the concentrations of its constituents in 3- dimensional space and time. Several Orimulsion-specific spill response tools and strategies have also been developed and would be used in the event a spill of Orimulsion were ever to occur in Tampa Bay, including Port Manatee. The Ori-Boom, a boom with a 10-foot-deep skirt, has been developed and tested for use in responding to spills of Orimulsion. The 10-foot skirt on Ori-Boom is five layers thick, and includes an outer covering of ballistic material for strength, inner layers of geotextile, and an inner core filter which allows water but not bitumen to pass through. The ability of water, but not bitumen particles, to pass through the skirt of the Ori-Boom has been demonstrated in tests. The Grizzly skimmer has also been developed and tested for use in responding to spills of Orimulsion. The ability of the Grizzly skimmer to remove coalesced bitumen from the surface of the water has been successfully demonstrated. The tests of the capability of the Ori-Boom, the Grizzly skimmer, and other equipment useful in the recovery of Orimulsion were observed by numerous government officials, including representatives of the U. S. Coast Guard and the Florida Department of Environmental Protection. Conventional absorbents, such as oil snares, pom-poms, or filament absorbents, have proven to be very effective in recovery of bitumen particles. These materials are typically used to "polish up" the water by removing fugitive particles after a skimmer, such as the Grizzly skimmer, has removed the bulk of the bitumen. Five thousand feet of Ori-Boom and two Grizzly skimmers will be staged at Port Manatee for use in responding to spills of Orimulsion. Additionally, conventional oil spill equipment which can be used in responding to an Orimulsion spill will be staged at Port Manatee, such as 8,700 feet of conventional 18-inch skirted boom, 200 feet of 36-inch skirted boom, absorbent materials, and 3 shallow-draft boats. FPL also has a stockpile of oil spill response equipment, including approximately 6,100 feet of 36-inch skirted boom, loaded in six semi-trailers in West Palm Beach which can be delivered to any of FPL's facilities. Altogether, FPL has approximately 40,000 feet of conventional skirted boom which could be used to keep bitumen out of the sensitive habitats in Tampa Bay. There is also a stockpile of oil spill response materials at each of FPL's power plants and fuel terminals. Moreover, the Coast Guard, various contractors and cooperatives, and other terminal operators have conventional booms located in the Tampa Bay area which would be effective in responding to an Orimulsion spill in shallow waters. All of the materials staged for use in response to fuel spills is periodically inspected and maintained in good operating condition to ensure its availability in the event of a spill, as required by OPA '90. SIMAP will be incorporated into FPL's spill response plans. In the event Orimulsion is ever spilled in Tampa Bay, the 3-dimensional fates model in SIMAP would be an effective tool to assist in response efforts by predicting the direction and movement of the spill plume. This information would aid the spill response managers in time-critical decisions on where it is most appropriate to deploy a containment boom around the bitumen plume and exclusion boom to protect sensitive habitats. To obtain predictive results quickly for use in developing spill response strategies, the user of SIMAP can control several model parameters, such as the number of Lagrangian particles tracking the various fuel components, the length of the time-step between calculations, and the length of the model run. In a spill event, SIMAP would be run initially using data files on hand which most closely resemble the actual environmental conditions at the scene of the spill. Such a model run could be accomplished in a few minutes. As realtime information becomes available following a spill, SIMAP would be rerun to provide more refined output on spill movement and direction. As a spill response tool, SIMAP can be used to predict the movement of Orimulsion to allow the response teams to deploy protective equipment around sensitive habitats. SIMAP can also be used to direct water column sampling efforts to locate the largest concentration of the spill plume prior to deployment of the containment boom. Since currents are more predictive than winds, SIMAP is more capable of predicting the movement of Orimulsion in the water column than the movement of No. 6 fuel oil as a surface slick. In the event of an Orimulsion spill, deep-skirted boom (with the skirt in a furled position) could be towed to the site by two boats and placed in the path of the spill plume. The two ends of the boom would then be connected and the skirt unfurled to create a cylinder around the largest portion of the bitumen plume. Once the Ori- Boom has encircled the bitumen, it will be allowed to float and drift with the current along with the bitumen, thus keeping the large concentration of bitumen surrounded by the boom. Then shear pumps would be operated inside the cylinder to force coalescence and surfacing of the bitumen. As the bitumen surfaces, Grizzly skimmers would be used to remove the bitumen from the water. Sensitive habitats which are expected to be in the path of the spill plume would be protected by placing exclusion boom in front of the habitats. It is an accepted spill response strategy to identify sensitive habitats, prioritize those habitats as to their sensitivity, and protect the most sensitive habitats first. To facilitate the protection of sensitive habitats, FPL and Bitor America Corporation would use the atlas of sensitive environments in Tampa Bay which identifies the location and type of sensitive habitats, prioritizes those habitats as to their sensitivity, and specifies the most appropriate response strategies to protect each particular sensitive habitat. This atlas of sensitive environments in Tampa Bay will be incorporated into FPL's spill response plans. Since Orimulsion spilled in Tampa Bay would move back and forth with tidal currents, rather than rapidly moving with the wind to shore as does a No. 6 fuel oil surface slick, more time would be available in the event of an Orimulsion spill to plan response strategies. The spill response technologies, strategies and plans FPL and Bitor America have identified for responding to any Orimulsion spill that might occur in Tampa Bay are comparable to those which would apply to a spill of No. 6 fuel oil, the current fuel used at the Plant and brought into Port Manatee. Ecological Effects of Orimulsion Released in Tampa Bay Tampa Bay is the largest estuary system in the State of Florida. It is roughly 60 kilometers long and the typical width is on the order of 10 kilometers. Tampa Bay is a relatively shallow system, with a mean depth of about 3.7 meters. The shipping channel which traverses Tampa Bay is approximately 15 meters deep and 122 meters wide. Prior to the early 1900's, Tampa Bay was dominated in its marine productivity by seagrass. Because of human activities since that time, however, the current spatial extent of seagrasses is about 15 percent of the overall Bay. Changes in bathymetry and erosional losses in Tampa Bay preclude the reestablishment of seagrasses in some of their former range absent extraordinary measures to restore former bay bottom. Tampa Bay's primary productivity now comes from phytoplankton in the system. Notwithstanding the loss of seagrass, Tampa Bay is an extremely diverse estuarine system, providing habitat to approximately 250 species of fish, 1200 species of invertebrates, and 200 species of macro-algae. The mangrove systems and marsh grasses on the shoreline area, as well as the remaining seagrasses, provide part of the energetic base for the Tampa Bay system and structurally provide habitat critical as nursery grounds for many species of fish and invertebrates. To gain an understanding of the ecological effects of an Orimulsion spill in Tampa Bay, FPL commissioned the University of Miami, Rosenstiel School of Marine and Atmospheric Sciences, to coordinate a study of the comparative ecological effects from a release into the environment of Orimulsion and No. 6 fuel oil, the fuel currently used at the Plant. The study was called the "Comparative Oil/Orimulsion Spill Assessment Program" (COSAP). COSAP involved independent, peer-reviewed scientific research conducted by scientists at several institutions, including the University of Miami, Florida International University, University of Massachusetts, University of North Texas and the University of South Florida. FPL provided the sponsorship and defined the nature of the problem on which study was desired, but had no role in conducting the research or in the conclusions drawn from that research. COSAP included research on fuel characterization, chemical and physical weathering, and toxicological studies for selected flora and fauna indigenous to Tampa Bay for both Orimulsion and No. 6 fuel oil. COSAP also included the identification of resources and ecosystems at risk, hydrodynamic modeling, and fate and transport modeling for Tampa Bay. The COSAP research was integrated into a comparative ecological risk assessment (CERA) in which the existing ecological risk of No. 6 fuel oil being released in the Tampa Bay environment was compared to the ecological risk which would exist from a similar-sized spill of Orimulsion in that environment. The different reactions of Orimulsion and No. 6 fuel oil in seawater were significant in assessing the comparative ecological risks because with No. 6 fuel oil, the slick effects and the movement of the slick by wind forces had to be considered. With Orimulsion and the dissolved component of No. 6 fuel oil, the tide and currents within the waterbody largely control the movement of the components. Under COSAP, toxicity tests were conducted on mangroves, seagrasses, and important fish and invertebrate species actually found in Tampa Bay, in addition to the typically- utilized surrogate laboratory species. This is a significant advancement beyond what is normally done in an ecological risk assessment. Historically, fuel oil spills have had varying degrees of impact on seagrasses and mangroves. Chronic toxicity tests demonstrated that Orimulsion would not cause widespread mortality of the seagrass beds or mangrove components of Tampa Bay. Toxicologically, the aromatics from No. 6 fuel oil were found to be a thousandfold more toxic to fish and invertebrate species than the components of Orimulsion at similar concentrations. In the event of a spill, however, the concentration of Orimulsion components in the water column would be approximately a thousandfold greater than the concentration of No. 6 fuel oil aromatics. To evaluate the comparative risk of No. 6 fuel oil and Orimulsion released in Tampa Bay, one must consider both the concentrations to which organisms would be exposed and the relative toxicities. COSAP's Comparative Ecological Risk Assessment (CERA) To incorporate both exposure concentrations and relative toxicities in the COSAP CERA, the researchers used a scenario-consequence analysis. That is, hypothetical sets of conditions were defined to identify a range of conditions that might occur under different types of spill conditions in Tampa Bay. Then the fate, transport, exposure and ecological effects of both a No. 6 fuel oil spill and an Orimulsion spill for these scenarios were evaluated and compared. The scenarios developed for the CERA included four locations: (1) Egmont Key, the location of a major fuel oil spill in 1993; (2) the Skyway Bridge, the location of a collision which caused a portion of the former bridge to collapse; (3) the Turning Point, the 90 degree turn from the main shipping channel into the shipping channel which leads into Port Manatee; and (4) the Port Manatee facility where offloading occurs. The volume of the spills in the scenario-consequence analysis was 10,000 barrels, except for the Port Manatee facility scenarios for which the spill volume was presumed to be 1,000 barrels. Scenarios covered both wet and dry seasons. For the summer scenarios (the wet season), a relatively wet year and a relatively dry year were included. For each season and location, scenarios were chosen at four different start times to represent the range of combinations of wind and tidal events. Altogether, the CERA analysis included 96 scenarios. Each scenario was modeled using a hydrodynamic model developed by the National Oceanic and Atmospheric Administration (NOAA) National Ocean Survey and further calibrated by the University of Miami researchers to the Tampa Bay system. Output from this hydrodynamic model was input to the 3-dimensional fate and transport model, SIMAP. For each scenario, movement of the various components of No. 6 fuel oil or Orimulsion was simulated for five different layers within Tampa Bay. Hourly concentrations were output and transferred to a Datagraphic Information System. The outputs were then integrated over time until concentrations were below the level where significant ecological effects would occur. Exposures (a combination of concentration, time, and component) were then graphically displayed using a scaling methodology and overlaid on the distribution of species in Tampa Bay, allowing for a direct comparison of toxicological effects. In assessing the comparative ecological risks of Orimulsion and No.6 fuel oil, numerous conservative design parameters and assumptions were used for the CERA. For example, the most sensitive life stages of the most sensitive species were utilized, maximum exposure times were assumed even for organisms which could swim out of the affected area after a spill, and a large spill volume was assumed. COSAP CERA Conclusions While an Orimulsion spill would have greater water column effects than a similar- sized spill of No. 6 fuel oil, the No. 6 fuel oil spill would have the added oil slick formation and associated shoreline impacts which are not anticipated from an Orimulsion spill. Overall, the risk to the Tampa Bay ecosystem from a spill of Orimulsion is essentially comparable to the existing risk of a No. 6 fuel oil spill of similar size. The risks from a spill of Orimulsion would not be significantly greater than, nor significantly less than, the risks to the Tampa Bay ecosystem from a similar-sized spill of No. 6 fuel oil. Peer Review of COSAP Research and Conclusions A Science Advisory Panel provided independent scientific peer review of the COSAP research and conclusions. The Panel included leading scientists in the fields of ecological risk assessments, spills of oil in the marine environment, coastal systems, and several representatives of state and federal regulatory agencies. The Science Advisory Panel was involved in a meeting at the inception of COSAP to discuss the overall research goals and objectives, the structure of the research program, and the specific protocols for the toxicological experiments. The Panel also examined the models and statistical approaches to be used for the study. The Panel specifically addressed the issue of the applicability and appropriateness of the ecological risk assessment paradigm, and participated in the development of the scenarios used in the CERA. The Panel reviewed an interim technical support document and provided detailed comments on all components of the research at that time prior to development of the CERA report. The Science Advisory Panel approved the use of the ecological risk assessment framework, the experimental components, the experimental design, the statistical analyses, the scaling methodology, and the conclusions reached in the CERA. Effects of Estrogenic Compounds Following a Spill The Orimulsion to be used at the Plant will include no more than .22 percent nonylphenol polyethoxylate surfactant. The surfactant allows the bitumen particles to remain emulsified in the water, forming a stable emulsion. Hundreds of millions of pounds of nonylphenol polyethoxylate surfactants are used annually in the United States in domestic and industrial products, such as soaps and detergents. Globally, more than a half billion pounds of nonylphenol polyethoxylate surfactants are used annually. Nonylphenol polyethoxylates released in an aquatic environment are broken down by actions of bacteria and sunlight. The final degradation products would be carbon dioxide and water. The warm temperature, intense sunlight and seawater in Tampa Bay would increase the speed of the surfactant's degradation process. Neither the surfactant in Orimulsion nor its intermediate degradation products are expected to persist for more than 30 to 45 days in Tampa Bay, if a spill occurs. Both No. 6 fuel oil and Orimulsion may result in compounds which mimic estrogen being released in the environment following a spill. The polycyclic aromatic hydrocarbons (PAHs) in No. 6 fuel oil are suspected to have such estrogenic properties. Similarly, some of the intermediate breakdown products of the nonylphenol polyethoxylate surfactant in Orimulsion are suspected to have estrogenic effects. Whether there are ecological consequences of such estrogenic compounds when released in the environment has not been established. To the extent marine organisms are exposed to any of the intermediate degradation products of Orimulsion's surfactant during the 30 to 45 days they may persist in Tampa Bay, once the exposure is removed the organisms are able to purge their systems of those compounds. Consequently, no long-term bioaccumulation of these compounds is expected. The surfactant and any effects it may have when released in the environment should not persist for long periods of time due to rapid degradation and the ability of marine organisms to purge their systems of the degradation products after the exposure is removed. Summary of Comparative Spill Risks Given the comparable ecological risks to Tampa Bay of Orimulsion and No. 6 fuel oil, the comparable spill response capabilities for the two fuels, and the substantially lower risk of a spill of Orimulsion than that for No. 6 fuel oil being delivered to the Plant, overall the risk to Tampa Bay will be significantly reduced after the conversion of the Plant to Orimulsion from that which currently exists from the transport of No. 6 fuel oil. Moreover, the conversion of the Plant to Orimulsion will reduce the risk of transfer- related fuel spills statewide. Every time there is a transfer of fuel from one fuel-holding tank to another, whether that holding tank is on a ship or barge, or is part of a terminal or refinery, there is a risk of a transfer- related spill. Deliveries of fuel oil to FPL's plants require from one to three transfers in Florida, depending on whether the terminal at the receiving port is connected directly to the electrical generating plant by pipeline (as at the Plant) or whether fuel must be transferred from the terminal to the plant by barge. Because the conversion to Orimulsion will increase the utilization of the Plant, and reduce the utilization of other FPL plants that burn higher cost oil, it will reduce the number of deliveries and transfers of fuel oil to other FPL plants within the State. This will reduce the number of FPL's annual fuel transfer operations in Florida by 14 percent, from 635 before the conversion to 548 following the conversion. This translates directly into a reduced probability of fuel spills. In addition, over 80 percent of the No. 6 fuel oil burned in Florida is refined at Gulf Coast plants. There are opportunities for transfer spills when fuel ultimately destined for FPL is delivered to and shipped from those refineries. These opportunities for Gulf Coast spills are eliminated with Orimulsion, which is transferred only once, off the coast of Venezuela, before it reaches the receiving terminal at Port Manatee.
Conclusions Burden of Proof 97 Summary of Conclusions 98 Inapplicable Surface Water Quality Permitting Criteria 102 Statues and Rules on Surface Water Discharges 103 Rejection of Similar Arguments in NYDEC Case 105 Outstanding Florida Waters 107 Federal Certification 110 Ecosystem Management 111 Legal and Permit Agreement Covers Surface Water Withdrawals from the Little Manatee River 112 Cooling Pond Groundwater Discharges 117 Secondary Impacts 118 Air emissions (nitrogen and ozone) 120 Salt Water intrusion and associated groundwater "pollution" 122 Groundwater discharges from cooling pond 123 Impacts to residents from truck traffic 123 Cumulative Impacts 124 Ground Water Quality Standards 127 Vertical Extension of ZOD is Consistent with DEP Rules 127 FPL Retains Exemption from Secondary Groundwater Standard 132 BACT Review 133 Availability of Variances 135 RECOMMENDATION 137 APPENDIX 138 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA SITING BOARD IN RE: FLORIDA POWER & LIGHT COMPANY, MANATEE ORIMULSION DOAH Case No. 94-5675EPP PROJECT, APPLICATION NO. 94-35. /
Recommendation Based on the entire record of this proceeding and the foregoing findings of fact and conclusions of law, it is recommended that the Siting Board enter a final order that: Grants Florida Power & Light Company certification pursuant to Chapter 403, Part II, F.S., for the construction and operation of the Manatee Orimulsion Conversion Project subject to the Conditions of Certification filed on January 17, 1996, modified to add Bitor's commitments set out in Finding of Fact 189; and Grants variances from the Manatee County Comprehensive Plan and Land Development Code for wetland mitigation ratios and from the Manatee County Land Development Code for location of required landscaping. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of February, 1996. J. LAWRENCE JOHNSTON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5675EPP To comply with the requirements of Section 120.59(2), F.S. (1995), as construed by the decision in Harbor Island Beach Club, Ltd., v. Dept. of Natural Resources, 476 So. 2d 1350 (Fla. 1st DCA 1985), the following rulings are made on the parties' proposed findings of fact: FPL/DEP/SWFWMD Proposed Findings of Fact. All of the proposed findings of fact proposed by these parties have been reviewed. This review has included consideration of the response to the proposed findings filed by Manasota-88 and MCSOBA. This review reveals that most of the proposed findings of these parties were proven by a preponderance of the evidence and, except as follows, they have been accepted. 3. Last sentence clarified to reflect that, while there will be few other changes to the plant itself, there will be severally significant changes to the project area as a result of conversion to Orimulsion. 12. First sentence, rejected as only proof of a reasonable expectation is possible; otherwise, accepted. 75. Last sentence, "significantly" rejected as argument; otherwise, accepted. 82. Last sentence rejected as irrelevant; otherwise, accepted. 84.-85. In part, conclusions of law; otherwise, accepted. 86. Fourth sentence, rejected as contrary to the evidence in that both analyses should be conducted; otherwise, accepted. Rejected as contrary to the evidence to the extent that it implies that the Preserve is an embayment; otherwise, accepted. Last sentence, rejected as contrary to the evidence to the extent that it implies that the recent increase is uniform throughout the bay, as opposed to in parts of the bay and overall; otherwise, accepted. 106. Rejected as not proven that there will be no cumulative effect over time; otherwise, accepted and accepted in its entirety if it means only that an equilibrium will be reached at some point in time. 108. "Will not," in first two sentences, rejected as not proven; otherwise, accepted and accepted that reasonable assurances were provided. 110. "Demonstrated," in second sentence, rejected as not proven; otherwise, accepted and accepted that reasonable assurances were provided. 126. "Will not cause," in second sentence, rejected as not proven; otherwise, accepted and accepted that reasonable assurances were provided. 128.-130. In part, conclusions of law; otherwise, accepted. In part, conclusions of law; otherwise, accepted. 154. "1.44 percent of the time" clarified; otherwise, accepted. 159. Rejected in part in that Bitor's commitments are not part of the stipulated Conditions of Certification; otherwise, accepted. 161. Rejected in part in that Bitor's commitments are not part of the stipulated Conditions of Certification; otherwise, accepted. Manasota-88/MCSOBA Proposed Findings of Fact. Much of what is proposed by Manasota-88 and MCSOBA as findings of fact actually are conclusions of law. Proposed findings of fact numbered 4 through 203 actually are labeled "Findings Concerning Applicable Laws; most of these propose conclusions of law (although a few proposed findings of fact, mostly related to agency policy, are included.) Many of the other proposed findings of fact numbered 204 through 435 also actually propose conclusions of law. Even as construed by the decision in Harbor Island Beach Club, supra, Section 120.59(2), does not require rulings on proposed conclusions of law. 1.-2. Accepted. Subordinate and unnecessary. (94-5675EPP covers all permits, etc., from all agencies, except for the PSD and NPDES permits.) Conclusion of law. 5.-6. Accepted. Subordinate and unnecessary. 7.-18. Conclusions of law. Subpara. b., rejected as not supported by any evidence; rest, conclusions of law. Rejected as not supported by any evidence. 21.-24. Conclusions of law. 25. Accepted that DEP attempts to follow the guidelines, but they are not clear and are susceptible to different interpretations. 26.-48. Conclusions of law. 49. Accepted but irrelevant or argument. 50.-58. Conclusions of law. 59.-60. In part, conclusion of law; otherwise, accepted but conclusion of law, and either irrelevant or argument. 61. Conclusion of law. 62.-63. Accepted. Accepted but irrelevant because it is not regulated as a discharge. In part, conclusion of law; to the extent that it seeks to establish agency policy, rejected as contrary to the greater weight of evidence; otherwise, accepted. 66.-68. Conclusion of law; to the extent that it seeks to establish agency policy, rejected as contrary to the evidence. 69.-70. Conclusion of law. 71.-72. In part, conclusion of law; otherwise, accepted. 73.-77. Conclusions of law. 78.-79. Conclusion of law; to the extent that it seeks to establish agency policy, rejected as contrary to the greater weight of evidence. Conclusion of law. In part, conclusion of law; otherwise, rejected as contrary to the greater weight of evidence. 82.-86. Conclusions of law. 87. Accepted (but DEP does not issue such permits per se. 88.-90. Conclusions of law. 91. In part, conclusion of law; to the extent that it refers to agency policy, accepted. 92.-96. Conclusions of law. 97.-98. Accepted. 99.-114. Conclusions of law. 115. Rejected as contrary to the evidence. 116.-120. Conclusions of law. 121.-123. Accepted. 124.-126. Rejected as contrary to the evidence. 127. In part, conclusion of law; otherwise, ejected as contrary to the evidence. 128.-131. Accepted. Rejected as contrary to the evidence (as to "any other form of record evidence"). Conclusion of law. Last sentence, accepted; otherwise, conclusion of law. Rejected as contrary to the greater weight of evidence (that DEP uses "two different non-rule policy interpretations.) First sentence, rejected as contrary to the greater weight of evidence; second, conclusion of law. 137.-142. Conclusions of law. 143. Rejected as contrary to the greater weight of evidence. 144.-145. Subparagraphs, accepted; rest, conclusions of law. Conclusion of law. Accepted. 148.-150. Conclusions of law. 151.-153. Accepted (but as to 153, only sodium is a primary standard.) 154. Rejected as not clear from the evidence what is "common regulatory practice." 155.-157. Conclusions of law. 158.-159. Rejected as contrary to the greater weight of the evidence (that DEP was "deviating from the common regulatory practice.") 160.-168. Conclusions of law. 169. Rejected as contrary to the greater weight of the evidence. 170.-172. Conclusions of law. 173. In part, conclusion of law; otherwise, rejected as contrary to the greater weight of the evidence (that salt water intrusion results). 174.-179. Conclusions of law. 180.-181. Accepted. 182.-190. Conclusions of law. 191. Accepted. 192.-193. Conclusions of law. Rejected as contrary to the greater weight of the evidence. Accepted. 196.-203. Conclusions of law. 204. "Very sensitive" rejected as argument not supported by evidence; otherwise, accepted. 205.-211. Accepted. 212.-213. Rejected as contrary to the evidence that excessive nitrogen is the only cause; otherwise, accepted. 214.-216. Accepted. Rejected as contrary to the greater weight of the evidence as to all of Tampa Bay; accepted as to parts of the bay. "At least 10 percent," rejected as contrary to the evidence; also, the TBNEP proposal is not clear from the evidence in the record. (Cf. Garrity, T. 2110-2111.) Rejected as contrary to the greater weight of the evidence. (The estimate was calculated using a .27 lbs/mmBtuM emission rate.) 220.-221. Accepted. (Variation primarily is driven by rainfall.) Rejected as contrary to the greater weight of the evidence. (The witness's estimate, which was very rough, was referring to atmospheric deposition, not nitrogen loading; the two are different, and the percentage increase of the former actually is higher than the actual percentage increase in the former resulting from the Orimulsion conversion project.) First clause (the premise), accepted; second (the conclusion), rejected as contrary to the greater weight of the evidence. (Ozone may affect "dry deposition"; but much more atmospheric deposition is "wet deposition," which can vary by an order of magnitude depending on rainfall.) 224.-225. Rejected as contrary to the greater weight of the evidence. (The witness was referring to atmospheric deposition, not total nitrogen loading. See 222., above.) Rejected as contrary to the greater weight of the evidence. Accepted. (However, while there might be some longer term impacts from sedimentation, those affects will be marginal, first because the impacts themselves are marginal, and second because nitrogen entering the sediments also will be subject to denitrification through biological and chemical processes and to burial over time.) 228.-229. Conclusions of law; also, subpara. c., rejected as contrary to the greater weight of the evidence. Accepted in the general sense that it is 21 tons in the wrong direction. However, the "detrimental effect" was not measurable. Accepted. (It is not clear what "water quality levels" are meant. F.A.C. Rule 62-302.530(48)(b) speaks for itself. Presumably, "water quality levels" refers to nitrogen loadings.) To the extent not conclusion of law, rejected as contrary to the greater weight of the evidence. Conclusion of law whether the rule applies. In any event, rejected as contrary to the greater weight of the evidence that "no evidence" was presented. Rejected. First, conclusion of law whether air emissions are a "proposed discharge," and whether the "clearly in the public" test applies. Second, assuming that the test applies, and that it raises a mixed question of law and fact (not a pure question of law), neither of the witnesses cited were in a position to give competent testimony on the issue. Accepted. (There was no evidence as to where in the bay the violations occur.) Conclusion of law; also, subparagraphs a. and d., rejected as contrary to the greater weight of the evidence. Conclusion of law; also, subpara. c., rejected as contrary to the greater weight of the evidence. Accepted. (It is not clear what "ambient water quality levels" are meant. F.A.C. Rule 62-302.530(48)(b) speaks for itself. Presumably, "ambient water quality levels" refers to nitrogen loadings.) To the extent not conclusion of law, rejected as contrary to the greater weight of the evidence. 240.-241. Rejected as contrary to the greater weight of the evidence. (There was no indication of what the witness meant by "nuisance condition." Compare testimony to F.A.C. Rules 62- 302.500(1)(c) and 62-302.530(47). Accepted (assuming reference is being made to atmospheric deposition. See 222., above.) Rejected as contrary to the greater weight of the evidence. (TBNEP projection was hearsay.) 244.-245. Rejected as contrary to the greater weight of the evidence. 246.-249. Accepted. 250. Rejected as contrary to the greater weight of the evidence. ("Trophic," not "tropic," state index.) 251.-253. Accepted. 254.-255. Rejected as contrary to the greater weight of the evidence. Accepted. (It is not clear what "water quality levels" are meant, or what "nuisance standard" is meant. In any event, both F.A.C. Rules 62-302.500(1)(c) and 62-302.530(47) speak for themselves. Presumably, "water quality levels" refers to nitrogen loadings.) To the extent not conclusion of law, rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence. (The rule was judged not to apply.) Rejected as contrary to the greater weight of the evidence. (Other parameters were "reviewed" in the sense that they were considered along with salinity, but only salinity was studied in detail.) 260.-262 Accepted (but, as to 261., the extent of "further degradation" of water quality required to degrade biological productivity is not specified, so fact is not useful.) Accepted, but a conclusion of law whether it is "foreseeable" for purposes of "cumulative effects." Rejected as contrary to the greater weight of the evidence. (The evidence was 5 percent of the months.) Rejected as contrary to the greater weight of the evidence. (The option was considered and rejected.) Otherwise, accepted. Rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence. (The evidence was it was 6, but it is changing.) Accepted but so general and speculative as not to be useful. 269.-270. Rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence. (While absolute certainty does not appear to be possible at this time, DEP seems to have made this determination based on the best information available.) Rejected as contrary to the greater weight of the evidence. Accepted. Rejected as to RPM; accepted as to EKMA. 275.-278. Accepted. Rejected as contrary to the greater weight of the evidence. Accepted. Rejected as contrary to the greater weight of the evidence. (While absolute certainty does not appear to be possible at this time, it is believed based on the best information available that the Tampa Bay airshed is VOC-limited.) Conclusion of law. 283.-284. Accepted. Rejected as contrary to the greater weight of the evidence. Accepted. Rejected as contrary to the greater weight of the evidence. 288.-289. To the extent not conclusion of law, rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence. Accepted. The evidence is not clear that the expansion is "foreseeable." 293.-296. Accepted. 297. Rejected as contrary to the greater weight of the evidence. (42.23 is an absolute maximum per day; there also is a maximum 30-day rolling average.) 298.-299. Rejected as inaccurate calculation. 300.-301. Accepted. 302. Rejected as contrary to the greater weight of the evidence. (Emissions from the Manatee Plant were not part of the Hillsborough/Pinellas inventory of stationary sources.) 303.-304. Accepted. 305. Rejected as contrary to the greater weight of the evidence. See 298.-299. and 302., above. 306.-307. Accepted. 308.-309. Rejected as contrary to the greater weight of the evidence. See 302., above. Accepted. Rejected as contrary to the greater weight of the evidence. (There was circumstantial evidence, but a "correlation" was not determined.) Rejected as contrary to the greater weight of the evidence. Not clear from the evidence, especially without a corresponding VOC reduction. Also, so general as to be of little usefulness. 314.-315. Accepted. 316. Rejected as contrary to the greater weight of the evidence. (The evidence was that, at the time of the hearing, the SWUCA was a proposed rule and that the proposed withdrawals are in the Eastern Tampa Bay WUCA.) 317.-318. See 316., above; otherwise, accepted. The Floridan was not specified; otherwise, accepted. Accepted, assuming "sources" and "uses" mean the same thing. See 316., above. Accepted. Accepted (although specific reference only was to the former FPL wells.) Rejected as not supported by evidence on which a finding of fact could be made. 325.-326. Rejected. (These appear to be conclusions of law, although the intended legal significance of "straight transfer" is not made clear.) 327. Conclusion of law. 328.-329. Rejected as contrary to the greater weight of the evidence. 330. See 316., above. 331.-332. Rejected as contrary to the greater weight of the evidence. See 316., above. Rejected as contrary to the greater weight of the evidence. (The explanation was that the SWFWMD regulations allow it.) 335.-337. Rejected as contrary to the greater weight of the evidence. 338. Accepted. (That is why the ZOD was expanded vertically.) 339.-341. Rejected as contrary to the greater weight of the evidence. 342. Cumulative. 343.-344. Rejected as contrary to the greater weight of the evidence. Unintelligible. Rejected as contrary to the greater weight of the evidence. Accepted. Rejected as contrary to the greater weight of the evidence. See 346., above. Rejected as contrary to the greater weight of the evidence. Rejected as not supported by any evidence. Rejected. Not a legal requirement. 352.-353. Cumulative. 354. Rejected as not supported by any evidence. 354.(Number 2) Not clear what is meant by "water communities." An oil spill will affect the surface and shore more; Orimulsion would affect the water column and bottom more, especially in deeper water. 355.-356. Accepted. Rejected as contrary to the greater weight of the evidence. Rejected as not clear from the evidence what the impact on property values will be. Also, not subject to determination in this case. Rejected. F.A.C. Rule 60Q-2.031(3). Not subject to determination in this case. Rejected. Subpara. a., rejected as contrary to the greater weight of the evidence. Subpara. c., unclear what is being referenced. Also, effect on government jurisdictions other than Manatee County not subject to determination in this case. Rejected as not supported by any evidence. Rejected as contrary to the greater weight of the evidence. (As to c., no evidence as to what is meant or how it would help.) Rejected as contrary to the greater weight of the evidence. (However, as proposed, Bitor is the responsible party.) Rejected as contrary to the greater weight of the evidence that these methods are "reasonable." (As to d., the rule does not apply.) Rejected as not supported by any evidence that this alternative is "reasonable." 367.-368. Rejected as contrary to the greater weight of the evidence. Unintelligible. Conclusion of law. Accepted. 372.-377. Conclusions of law. 378.-379. Accepted. 380.-383. Conclusions of law. 384. Accepted. 385.-386. Conclusions of law. 387. Accepted. 388.-389. Conclusion of law. Accepted. Rejected as not supported by any evidence. 392.-395. Conclusions of law. 396. Rejected as contrary to the greater weight of the evidence. 397.-398. To the extent not conclusion of law, rejected as contrary to the greater weight of the evidence as to "foreseeable cumulative" impacts; also no evidence that foreseeable cumulative impacts "justify higher than normal BACT." Conclusion of law. Rejected as contrary to the greater weight of the evidence. (DEP tries to follow it, but it is complicated and difficult to apply.) Rejected as not supported by the evidence. (The only evidence was that EPA suggested that DEP give proper consideration to the claims of some SCR manufacturers that their technology achieves .10 lbs/mmBtum.) Accepted. 403.-404. Accepted (assuming reference is made to average costs.) Accepted. Rejected as contrary to the greater weight of the evidence. (There also were other factors.) Accepted. (However, the initial application has been modified in many respects during the course of these proceedings.) Accepted. Rejected as contrary to the greater weight of the evidence. Rejected as contrary to the greater weight of the evidence that it is BACT or that it was the only calculation making those emissions rate assumptions. Accepted. (Incremental cost calculations also are recommended.) 412.-414. Conclusions of law. 415. Accepted. 416.-418. Rejected as not supported by facts on which findings of fact can be made. 419. Accepted. (However, that was just one of several calculations and not FPL's final calculation.) 420. Rejected as not clear from the evidence that both calculations used .395 lbs/mmBtum. 421.-422. Accepted. 423.-426. Rejected as contrary to the greater weight of the evidence. (As to 425., it is not technically feasible for this application, so it cannot be economically feasible; where technically feasible, it has been shown to be economically feasible as well.) 427. Accepted (although it varies from year to year.) 428. Rejected as not supported by any evidence. 429. Accepted (but vanadium content is not high enough to create problems of technical feasibility.) 430.-435. Cumulative. Conclusions of law. Manatee County Proposed Findings of Fact. 1.-10. Accepted. Rejected as contrary to the evidence and to proposed finding 12 that it is the only required variance. Accepted. To the extent that accepted proposed findings are not contained in the Findings of Fact, there were considered to be subordinate, irrelevant or otherwise unnecessary. COPIES FURNISHED: Peter C. Cunningham, Esquire Carolyn S. Raepple, Esquire Kathleen L. Blizzard, Esquire Douglas S. Roberts, Esquire Gary V. Perko, Esquire Hopping Green Sams and Smith, P.A. Post Office Box 6526 Tallahassee, Florida 32314 Charles T. "Chip" Collette, Esquire Twin Towers Office Building Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 H. Hamilton Rice, Esquire Mark P. Barnebey, Esquire Jeffrey N. Steinsnyder, Esquire Richard Tschantz, Esquire 2379 Broad Street Brooksville, Florida 34609-6899 Thomas W. Reese, Esquire 2951 61st Avenue South St. Petersburg, Florida 33712 Roger S. Tucker, Esquire General Counsel Tampa Bay Regional Planning Council 9455 Koger Boulevard St. Petersburg, Florida 33702-2491 Preston T. Robertson, Esquire Assistant General Counsel Florida Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 Bridgett A. Ffolkes, Esquire Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner David M. Antoniak is the owner of property located at 1211 Hardman Drive in Orlando, Florida. The property fronts on a cove of Lake Lancaster and is adjacent to a stormwater drainage pipe operated by Orange County. When petitioner purchased the property in approximately February of 1978, the general waterfront around his property, as described by petitioner and other neighboring landowners, was filled with weeds which were decaying, trash and other debris, bad odors and bugs. Petitioner attempted to clean up the waterfront area, but was unsuccessful. In August of 1978, petitioner undertook the project which is presently in dispute. He removed approximately two truckloads of muck, weeds and debris from the water and the water's edge, placed a cypress log retaining wall between his property and the waters of Lake Lancaster, placed approximately one truckload of beach sand between the wall and the water, deposited an undetermined amount of fill material landward of the wall and put sod on the soil landward of the wall. Petitioner constructed the cypress log retaining wall in order to level out his lot, prevent runoff to the lake and to separate the dirt from the sand. He continues to fertilize his lawn and to spray it for bugs. The only portion of the retaining wall and property waterward of the natural ordinary high water line of Lake Lancaster is an area approximating eight by four feet. In March of 1979, petitioner applied to the DER for after-the-fact approval of construction of the retaining wall waterward of the ordinary high water line of the lake and the filling. After a field evaluation, DER gave notice of its intent to deny a permit. Lake Lancaster is a Class III body of water. The lake receives outfall from approximately twelve stormwater drainage pipes, one of which is located adjacent to petitioner's property. Aquatic plants and weeds are especially beneficial near such outfalls because they serve to assimilate and eliminate nutrients, stabilize sediments, and filter out suspended materials. Such vegetation also provides a habitat for fish. Although the area in dispute is small, removal of the aquatic vegetation significantly degrades the water quality of Lake Lancaster because of the area's location in a cove and the adjacent stormwater drainage pipe. The placement of the cypress log retaining wall will cause hydrological changes in the nature of increased turbidity due to wave action. Vertical walls may also lead to erosion. While the seawall will serve to reduce the initial flush of run off (of grass clippings, for example), fertilizers and bug sprays used on adjacent upland property will still percolate into the soil and eventually run off to the lake. The backfilling in the 8 by 4 foot space waterward of the ordinary high water level reduces the size of the lake and could possibly relate to flooding problems.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is recommended that the petitioner's application for a permit be DENIED. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 9th day of October, 1980. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1980. COPIES FURNISHED: William A. Harmening Stanley, Harmening and Lovett Post Office Box 1706 Orlando, Florida 32802 Charles G. Stephens Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 David M. Antoniak 1121 Hardman Drive Orlando, Florida 32806 Jake Varn, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Petitioner is the record owner of Lot 11, Block 4 and Lot 12, Block 2 of Ramrod Shores Marina Section subdivision on Ramrod Key in Monroe County, Florida. These lots lie across Angelfish Road from each other. They both lie across Mariposa Road from Torch Ramrod Channel which leads into Niles Channel which leads into the Gulf of Mexico to the north; to the south Torch Ramrod Channel leads into Newfound Harbor which opens onto the Atlantic Ocean. Mariposa Road appears on a subdivision plat filed in the official records of Monroe County in 1960, and on revisions of the original plat, one of which was filed in 1963, and the more recent of which was filed in 1969. On the two earlier plats, it is recited that "[r]oads shown hereon not previously dedicated or owned by the State or County are hereby dedicated to the perpetual use of the public." The evidence did not show whether Monroe County or any other governmental body had accepted the dedication of Mariposa Road. Cape Sable Corporation, a predecessor in title to petitioner, trucked in oolite fill to construct Mariposa Road; and repaired the road after occasional washouts, a practice which petitioner's immediate predecessor in title, James Brown, continued. Because the rock which was used to build Mariposa Road is loosely packed, water from the channel percolates through the road even when it is not high enough to move across the road in a sheet, which sometimes happens. There are also low lying places in the road through which tidal waters flow onto petitioner's property. Salt water up to a foot deep regularly stands on petitioner's property, which is overgrown with spider mangroves and red mangroves. The mangroves stabilize the shoreline on account of their root systems, which also serve to filter out certain substances which would otherwise run off into the channel. Decaying plant matter produced by the mangroves supports various microorganisms which constitute an early link in the food chain that results in commercial fisheries. Killifish, needlefish, jelly fish and wading birds all frequent petitioner's property in its present state. Covering petitioner's lots with fill would destroy or displace the marine life now flourishing there. Respondent has requested James Brown to remove the fill along Mariposa Road, citing Chapter 403, Florida Statutes, and the Army Corps of Engineers has taken similar action under applicable federal laws. Mr. Brown evinced an intent at the hearing not to comply with these requests, but to work instead to persuade Monroe County to blacktop Mariposa Road. Paving Mariposa Road with blacktop would involve compacting rock or otherwise creating an underbed impermeable to water. Mr. Brown envisions Mariposa Road being upgraded to the level of State Road 4, which it intersects, before being paved. If Mariposa Road were upgraded and paved in this fashion, it would act as a dam keeping tidal waters out of petitioner's lots, unless culverts were installed. In the event Mariposa Road is upgraded and paved and no culverts are installed, the marine habitat which now exists on petitioner's property would be doomed and filling the lots would hasten the process at worst.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioner's application for fill permit unless and until Mariposa Road is upgraded, without installation of culverts, and paved, so that it acts as a dam impervious to the waters of Torch Ramrod Channel. DONE and ENTERED this 17th day of February, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 904/488-9675 COPIES FURNISHED: Mr. Edward B. Johnson, Jr., Esquire 410 Fleming Street Key West, Florida 33040 Mr. Louis F. Hubener, Esquire Montgomery Building 2562 Executive Center Circle East Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION FRANCIS X. ATWATER, Petitioner, vs. CASE NO. 77-1409 DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
Findings Of Fact Hammock Dunes is a parcel of land located on the east coast of Florida approximately half way between Daytona Beach and St. Augustine. With the exceptions of a few small parcels separated from the main area, the area in question in this case is that bounded by Malacompra Road to the north, the Atlantic Ocean to the east, and State Road A1A to the south and west. The property is cut at several places from the west boundary, State Road A1A to the east by 16th Road, Jungle Hut Road, and the approach road to the Sheraton Hotel. All of the property at issue in this hearing is owned by either Admiral or its parent company, ITT. The natural terrain is a series of ridges and swales which contain to the west, sea oats, salt palmetto, and coastal scrub in the drier areas. The lower interior ridges contain alternating growth of the above vegetation until one gets to the immediate area of State Road A1A where, because of the fill, oak and other upland vegetation is in evidence. Ditches exist on both sides of each of the cross roads mentioned above. In addition, ditches have been dug in a generally north - south direction following the ridge and swale run of the land and there is also evidence of spoil banks in the southern portion of the property resulting from the dredging of the Florida East Coast Canal. The north/south ditches in question were dug as a part of the mosquito control program carried out over several years starting in 1953 to remove the seasonal breeding ground of salt marsh mosquitoes. In addition to these north/south control ditches, there are other ditches leading away from them which form a part of that system, and there are some permanent waters on the property, primarily at the southern end near the Sheraton Hotel and at the coquina quarry. The dominant vegetation adjacent to the ditches includes a mixture of plants including weeds, disturbance plants, and persistent vegetation. Aerial photographs taken at various times over the period of the last 40 years reflect that the vegetation includes cat tails, bunch grass, wax myrtle, cabbage palms, and salt brush. Many of these ditches are encroached by the growth surrounding them. The existence of cabbage palms serves as a tool to define the swale areas because water conditions are not suitable for these plants in the swales. The swales in question, which basically were the areas in which the drainage ditches were dug, were natural and not man made. According to Dr. Durbin C. Tabb, a consultant in environmental assessment, whose work emphasizes the location, siting, and sensitivity of aquaculture projects, vegetation in areas such as this goes through a progression of species and this progression is used in relic analysis. Dr. Tabb performed a relic analysis on the area in question and based on this, as well as an analysis and examination of extensive aerial photography done of the area, he concluded that prior to the ditching activity, the plant community in the area could be described as a "wet prairie." This is an area of virtual treeless grasses and shrubs growing in an area periodically inundated by water. The zonation of the plants caused by this periodic inundation, as determined by Dr. Tabb, is consistent with wet prairie and that condition, prior to the ditching for mosquito control purposes, was consistent with mosquito breeding. In his analysis, Dr. Tabb found that numerous plants, such as cat tails, maiden cane, pickerel weed, saw grass, spike rush, soft rush, switch grass, button bush, and coastal plain willow, all of which need a moist environment, were extant in the area. Dr. Tabb also concluded that the water in the swales was primarily fresh water. In dry periods, however, in the lower areas, some salt could be sucked up from below ground by capillary action. Another survey of the area was conducted by Jeremy Tyler, the supervisor of the dredge and fill section of the Northeast District of DER, who has performed more than 3,000 jurisdictional determinations over the past 10 years, and who performed the jurisdictional determination for the property in question here. In making his determination, Mr. Tyler looked at various maps, aerial photographs, and information supplied by Admiral Corporation and conducted at least three recent on-sight visits to the property in addition to others conducted in the past. Based on all of this information available to him, Mr. Tyler concluded that certain portions of the Hammock Dunes area were exempt from DER dredge and fill permitting requirements. His conclusions were that the canal running to the intra-coastal waterway and the waterway itself were jurisdictional. Mr. Tyler determined that at least two ditches went through the uplands portion of the area as a part of the mosquito control operation. These ditches were the one at the west side of Malacompra Road which entered into the intra-coastal waterway; another was the westernmost ditch running south into the barge canal at the southeast corner of the property. Both were exempt. The third ditch in the area, that on the most eastern side, was not cut in the mosquito control operation and therefore did not meet the criteria for exemption. On the basis of this, he concluded that DER's jurisdiction extended to the sides of the jurisdictional ditch up about half way northward on the lake in the southeast corner of the property. North of that point, the ditch was cut through a non-jurisdictional uplands area. Mr. Tyler indicated that he would normally follow each ditch up-stream, but, having been made aware of the extent of the mosquito control operation, and the relationship of that operation to the ditches, he concluded that the majority of the ditches in the area were dug during the mosquito control operation and met the criteria for exemption, and, as a result, he did not have to follow them to their source. If he had not been satisfied that the mosquito control district exemption applied, he would have gone up each and every ditch to see where jurisdiction stopped. Prior to publishing an opinion as to jurisdictional limitations, ordinarily the agency will request a legal review of the proposed determination. This was done in the instant case by agency counsel Richard Lee. However, Mr. Tyler made the ultimate determination that the exemption applied in this case. He did not examine the question of whether the ditches constituted a series of lakes connected, so as to support jurisdiction, because since he was satisfied they were dug in mosquito control operations, the exemption applied which obviated any other jurisdictional issue. Robin D. Pyne, a consulting engineer in water resources, has studied the Hammock Dunes property since 1977 when his company was hired to do a water use plan for a neighboring community. Since 1979, he has had substantial opportunity to study the water situation there. Over the years, he has specifically tried to determine if standing water existed between the swales prior to the beginning of the digging of the mosquito control ditches in 1953. In doing his analysis, he relied on historical data, site topography data collections, reports of other agencies, and the work done by other experts. Considering all this, Mr. Pyne found that the soil in the Hammock Dunes area was basically well drained beach sand. Any rainfall on this area would seep in quickly and not run off, as the sand is very porous. During periods of sustained rainfall, the water table rises into the low part of some of the swales. Once the rains stop, however, the water drains off quickly through the ditches, and before they were in place, through the underground drainage which went west to east to the ocean as well as through evaporation. Extrapolation of this theory and its application to known data revealed that prior to the beginning of the mosquito control ditch program in 1953, wet soils were found in the swale bottoms only periodically and the swale bottom water level was determined by the level of the water table in the area. Generally, the swale bottoms would not be wet under average or dry weather prior to the digging of the ditches. The several mathematical calculations made by Mr. Pyne for the period prior to the ditches revealed that generally the average water table was below the bottom of the swale and there is no standing water in the bottom of a majority of the swales. Mr. Pyne concluded that the digging of the ditches may have lowered the water table by approximately one foot overall, but this would not affect his thesis. It is accepted here over that of Mr. Frazee who testified for Petitioner, and whose testimony is discussed in Para 24, infra. Other analysis was conducted by Mr. James H. Humphrey, an aerial cartographer who analyzed photographs of the area in question taken in 1943, 1952 and 1983. The use of a stereo plotter in these analyses delineated swales, ditches, roadways and other features important to the project. Based on the technical tools and procedures available to and used by him in his analysis, Mr. Humphrey is convinced the swales he identified are accurate and using his plotter, the textures of grasses, the tones of grey on the picture, and other like considerations, he was able to determine this outline. Dr. Thomas H. Patton, a geologist with a specialty in geomorphlogy, a study of why land looks as it does, and the relationship of soils to geomorphology, performed studies on the property in question to determine if the swales contained soils indicative of inundated conditions. To determine this, he looked for certain characteristics of the soils in the area to determine if the soils had been inundated for a period of time. In doing so, he first used aerial photographs to get the lay of the land from an overview standpoint defining general trends and the general outline of the land, roads, and other impacts by man. He then took soil samples from the major, the intermediate, and the minor swales and tried to get samples from between the swales to see if there was any interconnection between them. He took samples from soil across the entire width of each swale studied. Soil samples contain and maintain within themselves indications of sustained emergence or saturation. Studying these indicia can show how long the soil was dry (above the water table or below it). If the soils were inundated for a long period, they would show a preservation of a surface decomposed organic layer reflected by a dark grey to black color. This is the primary indication. There are others such as a blue-grey/green coloring of the subsurface and a mottling or sign of reduced condition. This test has been adopted by the Department of Natural Resources and the United States Corps of Engineers. Certain horizons have been defined and identified by letter. These are: O - the top, made up of leaf litter A - the elevated layer - transfer level B - just at or above the water table (normal dark brown color), and BH - the water table level - no clay or organics According to Dr. Patton, it takes a long time for the BH level to accumulate. The process is quicker in a porous soil than a dry soil and the Hammock Dunes area has porous soil. One would not find a BH horizon, however, in a saturated or inundated soil. If the soil is saturated, even a large part of the year, there would be no BH horizon. At the Hammock Dunes site, the emergent soil has a diffused, darker upper surface. Below that comes a much cleaner, greyer sand and beneath that, the zone of accumulation. Dr. Patton's survey revealed to him that soils in the swales were not inundated throughout the year. They were inundated during periods of high rainfall, but because of the porosity of the soil, would drain quickly. On the entire property, he saw only four isolated areas that could be considered wetlands. In the majority of the area, the soils appeared to be emergent soils. Most met the typical horizon picture including a BH zone. Using a specific site as an example, Dr. Patton traced to the BH horizon starting at approximately 42 inches down. The soil started lighter on top and proceeded to get darker as one went down to the zone of accumulation. That indicated that the water table was at or near 42 inches sufficiently during the year to achieve accumulation. Had the water table been nearer the surface more of the year, that would not occur. In Dr. Patton's opinion, this situation, including the water table level, stayed just about at that point all the time for at least a couple of hundred years if not for 1,000 years. This is not to say that the water table will not move during periods of drought and over rain. It will, but those periods are relatively short and the general level of water table where the BH horizon is is just about normally at 42 inches throughout the Hammock Dunes property. In preparing his analysis, Dr. Patton compared the swales work described above with the soils found in what he considered a wetlands area just north of 16th Road to see what a real wetlands soil in this area looked like. He found the latter to be black and mucky and typically wetland. He also took samples from Bonne Terre farms, which is a drained historical wetland. In this wetland, the soil was quite organic at the surface which showed sustained inundation of the surface. He also took samples at a place where Varn Lake comes close to State Road A1A and at that point, it was determined that there had been submergence, saturation, or inundation long enough to constitute a wetlands. The organic material was at a depth which indicated there that originally the area was wetlands but he cannot say when. In general, then, if the interdunal swales had been inundated prior to the dredging operation of the mosquito control ditches, there would have been organic materials still in the bottom of these swales. The time necessary to leach it out would have been several hundred years. Since the BH horizon, with its level of organic material, was located at 42 inches, this indicated that, for the most part, the Hammock Dunes areas with their swales included were not historic wetlands. Dr. Patton agreed with Mr. Pyne that the digging of the mosquito control ditches did not materially lower the water table nor does he believe that except in the worse conditions, in the rainiest of rainy seasons, that the water table in one swale was ever connected to the water table in another. In contrast to the above, Petitioner introduced testimony by various experts and residents which contradicted that referenced above. James M. Frazee, an employee of the St. Johns River Water Management District became familiar with the Hammock Dunes area in connection with a salt water intrusion problem he was working on while employed with the U.S. Geological Survey in 1978 to 1980. During that period, he entered the site at least once a month. Based on his visits at the time, he found the area in question to be a combination of relic dunes with an interdunal lake system which holds water during periods of average to high water levels. His measurements of the water depth between the ridges showed it to be anywhere from 1 1/2 to 2 1/2 feet down. This was during a period when the water table was between 5 1/2 to 6 feet above mean sea level, and was a period of above normal rainfall. During the period 1965 to 1980 there was a period of less than normal rainfall during which the water table fell from the high above to approximately 6 inches above mean sea level. Mr. Frazee contends that the interdunal swales are lakes and ditches dug by the mosquito control district have drained the area. In his opinion, were it not for these ditches, the ground in the swales would be much wetter, but Mr. Frazee cannot indicate by how much. His testimony, contradicted by that of Dr. Patton and Mr. Pyne, is not considered to be consistent with the weight of the evidence. John Labie, an employee of DER specializing in water quality assurance, is familiar with the Hammock Dunes area and examined it as to ditching by a review of numerous aerial photographs and surveys. In his study, he tried to determine what the area looked like originally. In addition to the documentation he reviewed, he also walked a great portion of the area, personally examining the property in question. On the basis of his inquiry, he concluded that the area was previously a wetlands which was dried out by the mosquito control ditches. He admits that his depictions of historical wetlands, on the maps utilized for demonstrative purposes at the hearing, was not based on the same degree of accuracy and sophistication as was the basis for Respondent, Admiral's expert testimony. Another evaluation was conducted by botanist Sydney T. Brinson, an employee of DER, whose job includes the preparation of jurisdictional determinations based on botanical studies. She visited the site herself and determined there are at least three connections to waters of the state and from these connections into the interior of the Hammock Dunes property. She contends then, that if there were not mosquito control exemption, at least some of the ditches would, at least partway up, be jurisdictional. It is her opinion that before the ditches were put in, based on old documentation, the area was a series of coastal dunal lakes and the lakes, as they existed, did not have much plantlife in them. Relying on the U.S. Coastal and Geodetic Survey maps, which refer to much of the areas as "open water," she contends that the area was a system of coastal lakes rather than marshes. Marshes contain vegetation. Lakes generally do not. It is her further opinion that the interdunal waters, as interdunal lakes, total approximately 270 acres. Not all of these are connected at the surface. She feels that all of the individual systems north of the Florida East Coast Canal are more than 10 acres in area and would have to be over 2 inches in depth because of the fact that they are reflected as open water on the USGS maps. Based on her research, she concluded that prior to the digging of the mosquito control ditches, the area was a historic wetland. This opinion is not supported by the weight of the evidence, however. Another expert in soils science, Dar Guam Cheng, visited the site on May 9, 1985, and, in addition, reviewed a 1918 soils map of the area. Back then the area consisted of hydric soils which is a wetlands soils. All types of soils found in the area in 1918 are considered hydric (wetlands) soils. Mr. Cheng, however, took no samples himself on the Hammock Dunes property. His evaluation was based solely on the 1918 map, and is not considered to be of substantial value to the determination of this issue. Burrell Miller, a 76 year old resident of Hammock Dunes since 1979, but who either lived or visited in the area since 1917, indicated that his family homesteaded the area around Malacompra Road in 1920. During the period 1917 through 1943, he recalled, there was always water storage in the Hammock Dunes area. There was, however, not always high water except in the 1926 hurricane. There is, however, fresh water generally there every time it rains and the water generally stays level with the sea level. Mr. Miller recalls that from time to time in years past, boats were needed to cross the savannah to the beach. On other occasions one could wade in water up to one's waist. As he recalls, some of the soil was wet all of the time and never dried out. Mr. Miller's testimony, however, was fragmented and capable of numerous interpretations. It is not given the same weight as the scientific evidence presented by other parties. Nonetheless, another resident, Petitioner, Gerald Schatz, started coming to the area in 1953 and settled there in 1954. Over the years, he has gone into the Hammock Dunes area quite frequently and it is his recollection that along Malacompra Road, there always seemed to be some water, at times, up to the floor board of his pickup truck. He can recall when the mosquito control ditches were started in 1953. Even before he came to the area, Mr. Schatz' father-in- law lived there and always considered it wet. He recalls hearing others also describing the area as being wetlands. During the 1926 hurricane, it was flooded and again in 1957. Before the ditches were installed, there was, to his recollection, substantial standing water. Mr. James J. Miller, state archaeologist for Florida and very familiar with the history of the area, is familiar with the Hammock Dunes area from the work he did on a Development of Regional Impact for the area. Having reviewed records and historical documents relating to this specific area, going back as far as 1605, he concluded that there was no natural waterway extending across the Hammock Dunes area. His study, however, dealt with the issues of navigability of waters not its hydrographics and his study did not deal with the issue of wetlands. Nonetheless, it is clear from the above, that the area was neither open water or a water course at any time in recorded history. The overwhelming weight of the evidence clearly indicated that the Hammock Dunes property was not a historical wetlands within the framework and the intent of the statute or the rule. Admittedly, the area was inundated from time to time, especially after such periods of high rainfall as hurricanes, tropical storms, or above average rainy seasons. During those periods, the standing water which remained for a relatively short period of time was often of such magnitude as to come to the floor board of a pickup truck, or require the use of a skiff or other surface transport over the water to cross it. This clearly accounts for the memory of Mr. Miller as to him using boats to get to the beach and for the recollection of Mr. Schatz who remembered water coming to the floor boards of his truck On the whole, however the scientific evidence presented by Admiral Corporation, including such expert testimony as that of Dr. Patton, Dr. Tabb, Mr. Pyne, and other highly qualified scientists who visited the site and conducted reliable scientific evaluations of the area, all clearly lead to the inescapable conclusion that the area was for the most part and over the long run not a submerged wetland. There can be little question that the majority of the "swales" on Hammock Dunes were either the result of or enhanced by mosquito control ditching operations of the East Flagler Mosquito Control District over the period from 1953 through completion. Though these ditches ultimately connect with the intercoastal waterway or the Florida East Coast Canal, both of which are waters of the state, these connections, with the exception of the ditch west of Varn Lake which is admittedly not exempt, are obviously due to mosquito control activities of EFMCD. According to the best evidence available, the land in question was not a surface water body nor was it connected to a water of the state prior to the construction of the mosquito control ditch system. For the most part, the interdunal swales, which constantly hold water, are less than 10 acres in size and have an average depth of less than 2 feet of water in them throughout the year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that DER take final agency action adopting the preliminary determinations made by its Northeastern District of DER's permitting jurisdiction for the discharge of dredge and fill materials on Hammock Dunes as outlined in the DER Northeast District letter of August 9, 1984 to Admiral Corporation. RECOMMENDED in Tallahassee, Florida this 23rd day of December, 1985. ARNOLD H. POLLOCK 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 23rd day of December, 1985. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-3604 In the preparation of this Recommended order, the proposed Findings of Fact submitted by Petitioner and Respondent were thoroughly considered and evaluated. As listed below, the individual proposed findings were accepted or rejected by the undersigned as indicated: For the Petitioner: 1) accepted and incorporated in para 30 (a)-(e) accepted but not dispositive of any issue - 6) accepted except for the last sentence of para 6 which is argument rejected as contra the weight of the evidence accepted accepted but immaterial 10 - 12) accepted but not dispositive irrelevant irrelevant irrelevant accepted rejected as irrelevant (a) - (d) accepted - 23) accepted but not controlling 24 - 25) rejected as argument, finding of fact 26 (a) (1) - (4) accepted but not conclusive or definitive 26 (5) rejected as a summary of documentation and not a mapped Findings of Fact 26 (b) - (d) rejected as a summary of testimony and not a finding of fact rejected as a summary of testimony and not a finding of fact rejected 29 (a) - (d) rejected as argument summarization of testimony rather than Findings of Fact rejected as a summary of testimony rather than Finding of Fact accepted 32 - 36) accepted rejected as contra to the weight of the evidence rejected as summary of testimony and not Finding of Fact rejected as contra to the weight of the evidence and argument rather than Finding of Fact rejected as summary of testimony and not Finding of Fact 1st and 2nd paras accepted, but 3rd paragraph rejected as not the better evidence rejected as argument and not Finding of Fact 43 - 44) accepted accepted rejected as contra to the weight of the evidence accepted as to the severance of Varn Lake from the major canal but rejected as to contra to the weight of the evidence as to the historical connection rejected as contra to the weight of the evidence accepted accepted that Mr. Labie made such a "finding" but the finding is rejected as contra to the weight of the evidence 51 - 52) rejected as recitations of testimony and not Findings of Fact 53) rejected as far as categorization of the periodic wet areas as "lake systems" 54) accepted as a statement of Mr. Schatz's recollection accepted as a statement of the contents of a writing not dispositive of the issue 57 - 59) accepted 60) rejected as contra to the weight of the evidence For the Respondent: accepted accepted accepted except for the term "swales" which is used merely descriptively and not binding as to definition accepted accepted 5 (a) - (c) rejected as recitations of testimony rather than Findings of Fact 5 (d) - (8) accepted rejected as contra to the weight of the evidence. Petitioner's witnesses' testimony was, in general, in disagreement with that of Respondent's witnesses. However, as stated in the Recommended Order, the weight and quality of Respondent's evidence prevailed. (o) - (q) accepted not as fact but as a recitation of the evidence presented by each witness (a) - (c) accepted - 11) accepted 12) accepted COPIES FURNISHED: Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Deborah Getzoff, Esquire Ross Burnaman, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Randall E. Denker, Esquire Lehrman & Denker Law Offices 103 North Gadsden Street Post Office Box 1736 Tallahassee, Florida 32302 Timothy Keyser, Esquire Post Office Box 92 Interlachen, Florida 32048 Carlos Alvarez, Esquire Carolyn S. Raepple, Esquire Hopping Boyd Green & Sams 420 First Florida Bank Bldg. Post Office Box 6526 Tallahassee, Florida 32314 =================================================================
Findings Of Fact Jack E. Moore is the owner of real property in Fort Myers Beach known as Lot 9 of Indian Bayou, a subdivision in Section 33, Township 46 South, Range 24 East, Lee County, Florida. Moore's property is bordered on the north by the waters of Indian Bayou and Estero Bay. The northern portions of Moore's property are vegetated by juvenile and mature red and black mangroves. Red and black mangrove are the dominant species of vegetation on the northernmost portions of the property, waterward of the fill pad on which Moore's house is built. Sometimes during July, 1982, Moore used a shovel to excavate a channel from the open waters of Estero Bay to a dock existing at the edge of the fill pad. Approximately 48 cubic yards of excavated material was piled up along the banks of the channel. The channel measured approximately 1.5 feet deep (at low tide) by 9 feet wide by 70 feet long. The channel was dug so that Moore could got his boat in and out from the dock at medium tide. The passage to the deck was already possible at high tide, as Moore had a shallow draft pontoon boat. In July, 1981, Moore constructed a rip-rap revetment with backfill the northern side of his house fill pad. The back fill area contains approximately 160 cubic yards of fill, and is approximately 10 feet wide by 110 feet long. Red mangrove and black mangrove are and were the dominant vegetational species in the area where the channel was dug, where the excavated material was placed, and where the revetment and fill was constructed. The area of dominant mangrove vegetation extends from the work areas to the open waters of Estero Bay. Moore did not apply for or receive a permit from DER prior to undertaking the work referenced above. Upon discovery of the work in September, 1982, DER notified Moore that a permit was needed for the excavation and filling he conducted. In October, 1982, Moore agreed to fill in the channel and remove all unauthorized fill by January 19, 1983. Inspection by DER on January 26, 1983, showed that restoration had not been started, and in fact more work had been done on the channel. DER issued a Notice of Violation and Orders for Corrective Action (NOV) to Respondent on March 29, 1003, alleging violations of Chapter 403, Florida Statute's, and DER rules and requiring restoration of the areas dredged and filled. Upon service of the Notice of Violation by the Sheriff, Respondent petitioned for this hearing. DER incurred costs of 5101.88 in investigating the violations alleged in the NOV. As of the date of the hearing, restoration work still had not been performed. Although the spoil piles alongside the channel are now diminished, the channel itself was deep as it previously had been and the rip-rap revetment and backfill had not been removed.
Findings Of Fact Petitioners own Lots 1, 2, 3, 4 & 5, Indian Beach Manor, Section A, according to plat thereof recorded in Plat Book 22, Page 48, Public Records of Pinellas County, Florida, together with a parcel of submerged land in The Narrows in Section 30, Township 30 South, Range 15 East, Pinellas County, Florida (Exhibits 8, 11, 12, 13). The real estate in question is located at Indian Rocks Beach, Florida, and abuts that portion of the Intracoastal Waterway between Clearwater Harbor and Boca Ciega Bay called The Narrows. The property in question is approximately 200 feet wide and 500 feet long consisting of some 2.3 acres. It is bounded on the east by The Narrows, with Gulf Boulevard on the west, 191st Avenue on the north, and a boat channel extending approximately 300 feet from The Narrows on the south. The land is located within the intertidal zone below the line of mean high water and is vegetated approximately 75 percent by red and black mangrove trees. At high tide, the property is completely inundated. During low tide periods, a considerable amount of firm tidal flat is exposed. Meandering through the flats are several streams that connect intracoastal waters with shallow pools enclosed by mangroves. At the northwest corner of the property on 191st Avenue is located a city-owned storm sewer pipe which spills stormwater drainage down a ditch which crosses the property add discharges on the east side (Exhibits 1, 4, 7, 9, 10, Composite Exhibit 14, testimony of Albrecht). In April, 1974, Petitioners applied to the Board of County Commissioners of Pinellas County to fill Lots 1-4. After first denying the application, the board, sitting as the Pinellas a County Water and Navigation Control Authority, held a rehearing and approved the application on December 17, 1974, subject to the approval of the Trustees of the Internal Improvement Trust Fund of the State of Florida. By Resolution 25-74, December 10, 1974, the town council, Indian Shores, Florida, had urged the Pinellas County Water and Navigation Control Authority to grant the permit as being in the best interests of that town in that it would eliminate a health and welfare menace to the town's citizens (Composite Exhibit 1). Petitioners then made application to the Department of Pollution Control for water quality certification under Chapter 17-3, Florida Administrative Code. On April 1, 1975, they were informed by that Department that their application was denied. Petitioners then jailed a petition for review of the denial on April 8, 1975. In their Petition, it was stated that the application for water quality certification was part of a fill only and seawall permit application pending before the Trustees of the Internal Improvement Trust Fund. They contended that the water quality standards contained in Chapter 17-3 were not applicable to their application because there would be no discharge of any kind into state waters. The original application to fill and construct a seawall that had been pending before the Trustees was thereafter transferred to Respondent agency as part of the reorganization of state environmental agencies in 1975. On February 2, 1976, Petitioners were advised by Respondent that it intended to recommend denial to the Secretary of the Department of Environmental Regulation of Petitioners' application for a Chapter 403 and 253 permit and Water Quality Certification under P.L. 92-500 based on biological assessments of August 15, 1974, and January 28, 1975, and a water quality report of April 1) 1975. Petitioners then requested a hearing on February 6, 1976 (Exhibits 2, 3, 4, 5). Respondent based its proposed denial generally on the determination that filling of the intertidal mangrove area and the navigable shallow bayous would have material adverse effects on marine life and wildlife and would not be in the best interests of conservation of marine biological resources (Exhibit 4). The property is essentially a cul de sac with less than the usual water flow exchange by tides and there is some impoundment of the water that flows through the roads and adjacent property. There is evidence of pollution of the water by reason of the culvert and ditch which drains from the northwest boundary of the property. A certain amount of wash from boat traffic along the Intracoastal Waterway undoubtedly introduces additional pollutants into the area. The property also has been used as a dumping ground to some extent and a borrow pit exists at the northwest corner of the property. Water samples taken in July, 1976, reflected pollution, primarily as to nitrogen and sulfur, in the area whore the stormwater drainage culvert empties onto the property. Filling of the land will remove much of the present pollutants caused by stormwater runoff (Testimony of Davis, Exhibit 6) In spite of the pollution of the water, the property in question is a productive mangrove system. The shallow bottoms function as feeding areas for animal life and the vegetation provides a diversified habitat for the estuary. Prop roots and pneumatophores of the red and black mangroves are covered with barnacles, oysters and other shellfish, and live oyster bars are found on the flats. Various species of red, green and brown algae vegetate the shallow streams and pools. Export of mangrove detritus which is biologically important as a basic food chain substance is very evident. An acre of mangroves can produce almost 8,000 pounds of detritus for herbivores a year which is transported out by the tide. Detritus is the sole diet for adult mullet. Marine life and wildlife observed in the area consists of a variety of fish, invertebrates, and birds (Exhibits 4 and 17, testimony of Burdett, Knight, Matthews). During the period from 1943 when the Indian Beach Manor area was platted until 1975, approximately 300 feet (about half of the platted depth of the lot) had been lost through erosion. The proposed seawall will be 5' 7" high and will tie into an existing seawall on adjoining city property to the north. Petitioners plan to create a dike four or five feet high across the eastern shore boundary of the land, pump out the water, and fill with Florida sand to elevate the land about six feet (Testimony of Albrecht, Campbell).
Recommendation That Petitioners' application for a permit to fill and construct a seawall under Chapter 253 and 403, Florida Statutes, be denied. DONE and ORDERED this 17th day of May, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Reynold Caleen, Esquire Department of Environmental Regulation 2562 Executive Center Circle Montgomery Building Tallahassee, Florida 32301 Herman W. Goldner, Esquire P.O. Drawer 14233 St. Petersburg, FL 33733
