The Issue The issue for consideration in this case is whether sufficient grounds exists for the Petitioner, West Coast Regional Water Supply Authority, to terminate Respondent, Steve Toler, Jr.'s employment with the Authority because of the matters alleged in the Letter of Termination dated February 15, 1995.
Findings Of Fact At all times pertinent to the allegations herein, the Petitioner, Authority, was a governmental agency with membership held by Hillsborough, Pinellas and Pasco Counties and the cities of St. Petersburg and Tampa. It is charged with the responsibility of providing water resource management for its members. In November, 1994, the Respondent, Steve Toler, Jr., then employed for 9 1/2 years by the Authority as a maintenance technician, was under the supervision of Ben Nevel, lead supervisor for his crew and Harry Vogel, the facilities maintenance supervisor at Cypress Creek pump station. Just before Thanksgiving that year, his crew was given the responsibility of removing certain supposedly above ground aluminum pipe belonging to Pinellas County and replacing it with buried PVC pipe on the county's well field on Cross Bar Ranch, owned by Pinellas County. On the last day of the project Respondent was working by himself at the job site doing those things necessary to complete the project. This included removing three aluminum pipes and replacing them with three PVC pipes. In the course of the removal of the aluminum pipe, two pipes were damaged by Respondent because they were buried and he could not see them. When Respondent attempted to bury the three pieces of PVC pipe, he found that he needed some pipe lubricant in order to get them joined and called the pump station to have someone bring it. The lubricant was brought to the site by Mr. Vogel about noon, and the two men talked about the project. According to Mr. Vogel, Respondent made no mention of any damaged pipe nor did Vogel see any damaged pipe while he was at the site. Vogel adamantly denies that he ever, either that day or at any other time, told Respondent that he could throw away damaged pipe. The instructions that Vogel had left with Mr. Nevel for transmittal to the crew was that the removed pipe was to be placed in storage at the north end of the ranch because it belonged to Pinellas County, not to the Authority, and even if the pipe was damaged, the ends might be used for fittings. It is not clear whether Respondent knew the pipe belonged to the county or to the cattle company which had originally owned the ranch. Notwithstanding, Respondent took the two damaged pipes back to the Cypress Creek pumping station where, without speaking to anyone about what he proposed to do, he placed them in the trash dumpster for disposal. The following day, after completing his day's work, Respondent noted that the pipe was still in the dumpster and, without seeking approval from anyone, removed it from the dumpster, placed it in his truck, and that same day, sold it to All American Metal Recycling in Land O'Lakes, Florida, for $29.00 which he kept for his personal use. He collects scrap aluminum and copper in order to sell them. Respondent admits that as an Authority employee, he did not have the authority to take property owned by the Authority or its members for his own use. Ordinarily, he admits, the disposal of Authority-owned property had to be approved. The authority for approval, as contained in the agency's standard operating procedure for disposal of Authority assets, dated February 14, 1994, was the Cypress Creek storekeeper. Though it is not written, the Authority has a policy against employees taking material out of the dumpsters at the Cypress Creek facility. It was Toler's understanding, however, that old, unusable pieces of piping and wood could be thrown away, but equipment and property that had value had to be turned into Mr. Rooney, the storekeeper, who would evaluate it for disposal or repair. At no time did Respondent have the authority to make that determination. Mr. Toler admits he was aware of the Authority's policy on the disposal of property as noted in the February 14 SOP, as it had been outlined at no lees than two safety meetings he had attended. He understood that if he threw property away without authority, he could be fired. In fact, he admits, Mr. Vogel had so advised him of that. In the instant case, however, he contends, Mr. Vogel told him on the last day of the project in issue, in response to his inquiry, that he should throw the damaged pipe away. This was, as stated earlier, categorically denied by Mr. Vogel. Respondent also indicates that on the second day of the project, pipe being removed was damaged. That pipe was taken to the north pasture and stacked near other, undamaged pipe. The total amount of aluminum pipe removed in this project consisted of approximate one hundred twenty foot long "sticks". Respondent well knew he could not take and sell the stacked pipe, even that which was damaged. Respondent claims that no one saw him put the damaged pipe into the dumpster. He did not think about the opportunity to salvage the pipe when Mr. Vogel told him to throw it away or even when he brought it back and threw it into the dumpster. It was not until the next day when, after work, he saw the pipe still in the dumpster, that it occurred to him to take it, he claims. Respondent admits he has taken scrap metal and sold it before and claims others have done so, too. When he put this pipe in the dumpster he realized that others might take it, so he was somewhat surprised when it was still there the next day. Respondent also admits he did not tell Mr. Vogel how he had disposed of the pipe at first. Once the situation came under investigation, however, as a result of an inquiry regarding missing pipe from the Cross Bar Ranch project, he did so. He admits that sometime after the day he took and sold the pipe as scrap, but before the investigation was commenced, Mr. Vogel asked him what he had done with the pipe, and Respondent replied he had thrown it away. A few days later, in Vogel's office, when the investigation had begun, Mr. Vogel again asked Respondent what he had done with the pipe, and this time Respondent admitted to scrapping it. In the course of the investigation, Respondent spoke with Mr. Capp, a Cypress Creek engineer, about the allegation. In that conversation, held in Mr. Capp's office while no one else was present, Respondent admitted selling the broken pipe for scrap and advised that Mr. Vogel had told him to throw it away. At that time, he offered to replace the pipe, but his offer was not accepted. Some time later, and prior to the pre-disciplinary hearing, he was given a letter by Mr. Capp placing him on administrative leave pending investigation. At that time, Mr. Capp denied knowing what was in the letter. On February 8, 1995 a pre-disciplinary hearing was held with Respondent and counsel present at which time Respondent was given an opportunity to tell his side of the story. At that time, he did not mention any other individuals who had taken scrap from the dumpster, nor had he ever told Mr. Vogel, Mr. Capp or Mr. Kennedy about that. He claims he does not know of any cases where either Mr. Capp or Mr. Kennedy knew of others taking scrap but not being disciplined. However, Respondent is of the opinion Mr. Vogel knows what is going on but he cannot be sure. As was stated previously, Respondent has taken scrap from the dumpster before and claims Mr. Vogel knew it. Vogel, predictably, denies that. Some time after the pre-disciplinary hearing, after Kennedy received the information regarding the incident as determined therein, he discharged Respondent for several violations of the Authority's personnel rules. These included the removal and sale of the scrap pipe owned by Pinellas County, committing a breach of public trust, and committing a breach of member government trust which was deleterious to the Authority in that, in Kennedy's opinion, it undermined the public's faith and confidence in the Authority's public service responsibilities. Kennedy asserts that the relationship between the Authority and its member governments requires that each cooperate with the other in the mission to supply water to the public. Trust and confidence are essential elements of that relationship. Employees of the Authority and its member governments frequently are in and out of each others' facilities. If a member government loses trust in an Authority employee, the Authority's ability to efficiently perform its function would be hampered. This is a reasonable and supportable position and it is so found. In the past, the Authority has discharged employees for violating employee rules which reflect adversely on Authority integrity. One was discharged for the improper use of an Authority vehicle, and others have been discharged for violations of the property disposal policy. It would appear that Mr. Toler has not been treated differently than any others who were found to have violated similar policies. Since February, 1944, when the Authority adopted its policy regarding disposal of property, three employees, including Respondent, have removed materials from the dumpster at the Cypress Creek facility for their own use. Among these are Mr. Nevel who admits to taking electric wire and three discarded printers. Nothing taken by the others included aluminum pipe, however. Capp, Kennedy and Vogel all deny knowing that employees were taking scrap. Respondent cannot say that any of them did know. Consistent with that philosophy, Mr. Kennedy indicates he would have discharged Respondent for placing the scrap in the dumpster whether or not he sold it. By the same token, he would have discharged Respondent had he taken and sold the pipe, even if he had not placed it in the dumpster. Another incident arose in June, 1995, just prior to the hearing, involving the potential disposal of scrap pipe. Mr. Kennedy learned that a stick of aluminum pipe was in the dumpster at the Cypress Creek facility. The pipe, owned by the Authority, had been placed there by Mr. Rooney, the storekeeper, after Mr. Nevel used the ends to retrofit some piping at the Cross Bar Ranch. When this was discovered, Mr. Kennedy directed the pipe be recovered and held for possible future use or sale. Whereas Respondent contends this action was an attempt at a cover-up, it is more likely the result of an unintentional discard of potentially useful pipe.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the East Coast Regional Water Supply Authority deny Respondent's Petition for Relief and Enter a Final Order discharging him effective February 15, 1995. RECOMMENDED this 29th day of August, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 29th day of August, 1995. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: & 2. Accepted and incorporated herein. & 4. Accepted but irrelevant to any disputed issue of fact. Accepted. - 8. Accepted. 9. - 14. Accepted and incorporated herein. 15. - 19. Accepted and incorporated herein. 20. - 25. Accepted and incorporated herein. 26. & 27. Accepted and incorporated herein. 28. Accepted. 29. Accepted and incorporated herein. 30. Accepted and incorporated herein. 31. Accepted and incorporated herein. FOR THE RESPONDENT: Respondent's counsel has identified his Proposed Findings of Fact by letter rather than number. For the sake of consistency in this Order they will be re- identified herein with numbers. Accepted and incorporated herein. & 3. Accepted but not dispositive of any issue of fact. - 8. Accepted and incorporated herein. Accepted but not dispositive of any issue of fact. - 12. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as not a proper Finding of Fact but more a Conclusion of Law. COPIES FURNISHED: Gregory A. Hearing, Esquire Thompson, Sizemore & Gonzalez, P.A. 109 North brush Street, Suite 200 Post Office Box 639 Tampa, Florida 33601 Michael S. Edenfield, Esquire Battle & Edenfield, P.A. 206 Mason Street Brandon, Florida 33511 General Manager West Coast Regional Water Supply Authority 2535 Landmark Drive, Suite 211 Clearwater, Florida 34621 Donald D. Conn General Counsel West Coast Regional Water Supply Authority 2535 Landmark Drive, Suite 211 Clearwater, Florida 34621
The Issue The issue is whether Respondent's tentative award to Intervenor of a contract to construct and install a water pipeline should be invalidated because of fraud, arbitrariness, illegality, or dishonesty.
Findings Of Fact In November 1999, Respondent issued a Project Manual containing an invitation to bid for a contract to furnish labor and materials to construct a water pipeline from the Peace River water plant in Charlotte County to the DeSoto County line (ITB). ITB Instructions to Bidders Section 4.9 provides: The submission of a Bid will constitute an incontrovertible representation by BIDDER . . . that without exception the Bid is premised upon performing and furnishing of labor, services, equipment and materials required by the Bidding/Contract Documents in accordance with such means, methods, techniques, sequences or procedures of construction as may be indicated in or required by the Bidding/Contract Documents . . .. ITB Instructions to Bidders Section 6.1 states: The BIDDER shall use the Bid Form included with the Bidding/Contract Documents. Failure to use the Bid Form shall result in the Bid being declared unresponsive. No changes shall be made in the phraseology or format of the forms. All blanks on the Bid Form must be completed in ink or by typewriter. ITB Instructions to Bidders Section 6.6 requires that a Pipe Manufacturer's Commitment, on the supplied form, accompany each bid. The Pipe Manufacturer's Commitment states that the pipe manufacturer, which signs the form, acknowledges that the bidder shall assign all warranties and that the pipe manufacturer shall give Respondent an express warranty that, among other things, the "materials . . . have been manufactured and supplied in strict accordance with the requirements of the Contract Documents " ITB Instructions to Bidders Section 6.7 provides that any bid "may be deemed unresponsive which contains omissions, erasures, alterations, or additions of any kind, . . . or which in any manner should fail to conform to the requirements of the Bidding/Contract Documents." ITB Instructions to Bidders Section 7.1 states: A contract shall be awarded, if at all, on the basis that the BIDDER awarded the contract shall furnish only items of material and equipment named or specified in the Bidding/Contract Documents as advertised or modified by addenda. Each BIDDER shall list the manufacturers and suppliers to whom that BIDDER intends to award subcontracts for furnishing each selected named or specified item. Substitutes shall not be considered until after the notice of award. ITB Instructions to Bidders Section 9.2 authorizes Respondent, "after due evaluation of a bid," to request the BIDDER to remove or replace a subcontractor or supplier, if Respondent has an objection to the subcontractor or supplier. ITB Instructions to Bidders Section 10.2 provides that Respondent shall retain the bid bond, which is five percent of the base bid price, until the bidder has executed the contract. ITB Instructions to Bidders Section 13.1 states that all bids shall remain subject to acceptance for 90 days after the bid opening, and Section 13.2 provides that Respondent may agree with one or more bidders to extend this time for acceptance. ITB Instructions to Bidders Section 14.1 reserves to Respondent [BOLD] "THE RIGHT TO REJECT ANY AND ALL BIDS AS MAY BE DEEMED NECESSARY BY THE AUTHORITY, IN ITS SOLE AND ABSOLUTE JUDGMENT, TO BE IN ITS BEST INTEREST." [BOLD] ITB Instructions to Bidders Section 14.2 reserves to Respondent the right to waive "any and all informalities," as well as "mistakes, errors, or noncompliance with the requirements of these Bidding/Contract Documents, which may be committed by a BIDDER or BIDDERS, when it is deemed by the AUTHORITY to be in its best interest." ITB Instructions to Bidders Section 14.6 authorizes Respondent to enter into negotiations with the "qualified, responsible and responsive bidder" that submits the lowest bid. ITB Instructions to Bidders Section 14.8 authorizes Respondent to "consider all matters deemed relevant to the Project by the AUTHORITY" in "evaluating the Bids." These matters may include "whether or not the Bids comply with the prescribed requirements . . ., as may be requested in the Bid Form " ITB Instructions to Bidders Section 16.3 warns that a failure to timely protest the bid specifications waives the right to dispute the specifications. The Bid Form contains several Bid Schedules, generally divided by the size of the pipe. This case involves the responsiveness of Intervenor's bid regarding the 42-inch pipe. The Construction Contract notes that the purpose of the contract is, among other purposes, the construction of 6100 feet of 42-inch ductile iron pipe. Construction Contract Article 1.B.3 incorporates by reference the specifications included in the Project Manual. Construction Contract Article 20.F states that the CONTRACTOR's entitlement to compensation "is premised upon performing and furnishing the labor, services, equipment and materials required to complete the Project described in the Contract Documents " Bid Contract Section 02511 contains the specifications for the 42-inch pipe. Section 02511, Part 2, describes the ductile iron pipe itself. Petitioner and Intervenor timely submitted bids in response to the ITB. Petitioner's base bid price was $6,822,683, which includes $467,325 for the 3015 linear feet of 42-inch ductile iron pipe on Bid Schedule B and $466,560 for the 2880 linear feet of 42-inch ductile iron pipe on Bid Schedule C. Intervenor's base bid price was $6,464,990, which included $491,445 for the 3015 linear feet of 42-inch ductile iron pipe on Bid Schedule B and $420,480 for the 2880 linear feet of 42-inch ductile iron pipe on Bid Schedule C. The bids of Petitioner and Intervenor each contained a Pipe Manufacturer's Commitment, in the form described above. Petitioner's pipe manufacturer was American Cast Iron Pipe Co., and Intervenor's pipe manufacturer was U.S. Pipe and Foundry Co. (US Pipe). However, Intervenor's bid contained one document not contained in Petitioner's bid. Intervenor's Bid Schedule-- Summary, which is a form summarizing the total base bid price, contains a handwritten note beside an asterisk at the bottom of the page. The asterisk corresponds to another handwritten asterisk beside "Base Bid Price." The handwritten note states: Note: Kenko has based this bid on a quote from U.S. Pipe and Foundry including the attached letter from U.S. Pipe and Foundry dated December 21, 1999, stating that materials will be in accordance with ANSI/AWWA Standards. The December 21 letter, which is part of Intervenor's bid, is on US Pipe stationary and addressed to "Prospective Bidding Contractors." Referencing the subject procurement, the December 21 letter states in its entirety: U.S. Pipe & Foundry Co., Inc. is pleased to be able to provide you with pricing for the above mentioned project. We do however make the following notations: U.S. Pipe & Foundry, Inc. cannot supply the 42" material in accordance with the specifications as written. Several conversations with the engineer have lead [sic] us to believe that concessions of the specifications will be made to allow U.S. Pipe & Foundry, Inc. to make the 42" material acceptable [sic] to ANSW/AWWA Standards. However, U.S. Pipe & Foundry, Inc. will accept no liability if the 42" material is not accepted or approved. U.S. Pipe & Foundry, Inc. will provide all material in compliance with ANSI/AWWA standards. The December 21 letter is signed by Kevin R. Stine, Senior Sales Representative of US Pipe. The December 21 letter follows an exchange of correspondence and memoranda among US Pipe, Respondent, and Respondent's project engineer, Post, Buckley, Schuh and Jernigan, Inc. (Post Buckley). By letter dated December 15, 1999, from Mr. Stine of US Pipe to Thomas F. X. Flynn, professional engineer and vice president of Post Buckley, with a copy to Patrick Lehman, Respondent's executive director, US Pipe stated: A review of the specifications for the above referenced project determines some requirements with which United State Pipe and Foundry Company, Inc. is unable to comply. The following is a partial listing: Proof of Design Testing--Our cement mortar lining meets the requirements of ANSI/AWWA C104/A21.4 and has been found to meet the service requirements imposed. Given the requirements of hydrostatic testing two joined pieces of pipe to 500 p.s.i., dewatering the assembly, allowing three days to dry, then sound the lining for disbondment, U.S. Pipe cannot guarantee the disbondment will not exceed the area quantity specified. Furthermore, this test requires pipe of minimum of 10-foot length. Our test press, which will be required to test TYTON JOINT? pipe, can only accommodate a maximum length of 15 feet. Charpy Impact Coupons--It is neither our standard practice, nor a requirement of ANSI/AWWA C151/A21.51, to evaluate and record the microstructure of Charpy coupons. Autogenous Healing--The Proof of Autogenous Healing testing required may incur an tenure of several months to perform. This could easily compromise the completion of the project within the specified term. Fittings Fabrication--Our fittings are fabricated, tested and lined and coated at our Chattanooga Fittings Facility, not where our pipe is manufactured. Fittings Pressure Test--Not all sizes of fittings can be pressure tested to 500 psi for 10 seconds. However, all sizes are pressure rated above the field test requirements and service requirements. In summation, Unites State Pipe and Foundry Company, Inc. has the ability to provide product which will meet the service requirements of this project, manufactured strictly in accordance with the American National Standards ANSW/AWWA C151/A21.51, ANSI/AWWA C104/A21.4 and ANSI/AWWA C115/A21.15 and United States Pipe and Foundry Company, Inc. manufacturing procedures only. The project specification requirements, included but not limited to, the method of calculating pipe weights, serializing pipe, annealing rejecting criteria, cement lining crack designations, cement lining disbondment testing and designation of where fittings will be lined and tested, will not be adhered to. Please feel free to contact me regarding our concerns of the specifications. We would be unable to supply material for this project according to the current specifications. Unless the specifications are changed, United States Pipe and Foundry Company, Inc. will not bid to supply pipe to this project. By memorandum dated December 15, 1999, Mr. Lehman requested Mr. Flynn and two other Post Buckley representatives, John Eash and Ken Wilson, to respond to the US Pipe December 15 letter. His memorandum notes that Respondent received the US Pipe December 15 letter after the deadline for questions, but adds that they should resolve any technical issues raised by the US Pipe December 15 letter. By memorandum dated December 17, 1999, from Dick Powell of US Pipe to Mr. Wilson, US Pipe offered alternative specifications for the 42-inch ductile iron pipe. The letter notes that Mr. Powell has been unable to submit the bid specifications to US Pipe specialists, as Mr. Wilson had requested, but would be able to do so during the week of December 20. By letter dated December 20, 1999, from Mr. Stine to Mr. Wilson, US Pipe informed Post Buckley that it would bid 42- inch ductile iron pipe, "with the following exceptions to the 42" only specifications as discussed" by Mr. Wilson and Mark Troyanowski, US Pipe Assistant Southern Regional Sales Manager. The letter states the following exceptions: Section 1.08 Quality Assurance--Paragraph B.4.--Add [BOLD] "Serial numbering of pipe will commence at the standard location that is normally adhered to during the manufacturing process." [BOLD] Section 1.09 Suppliers Qualifications-- Paragraph A.2.--"Fittings may be fabricated at a site other than where the pipe is manufactured and all testing and applications of lining and coatings [BOLD] may be performed at the manufacturing facility of the fittings." [BOLD] Section 1.10 Proof of Design Tests-- Paragraph C and D--U.S. Pipe takes exception to these design tests. U.S. Pipe will furnish cement mortar lining in accordance with ANSW/AWWA C104/A21.4. However, U.S. Pipe will supply written documentation from the Ductile Iron Research Association (see enclosed) that autogenous healing does occur and will work on U.S. Pipe's cement mortar lining. Section 1.11 Shop Tests--Paragraph E.1.-- [BOLD] "Each pipe prior to mortar lining shall be hydrostatically tested to 500 psi or 75% of yield for at least 10 seconds. Each fitting prior to mortar lining shall be hydrostatically tested to 250 psi for at least 10 seconds." [BOLD] We thank you for your time and consideration. If you have any questions, please feel free to call me. Intervenor's representative responsible for submitting its bid received the US Pipe December 21 letter less than one hour prior to the deadline for submitting bids. Forced to make a crucial decision under the twin pressures of little time and no guidance from his superiors, Intervenor's representative chose the more cautious path of conditioning Intervenor's bid by including with the bid the asterisked, handwritten note on the Bid Schedule--Summary and a copy of the US Pipe letter. By letter dated December 21, 1999, from Mr. Wilson to Mr. Stine, Post Buckley informed US Pipe that it had received the letter of December 20 from Mr. Stine to Mr. Wilson, but that "any exceptions to the Contract Documents may be cause for bid rejection." The letter adds, "We would like to make it clear that there has been no official acceptance of the exceptions taken as listed in your faxed letter." The day after the bid opening, discovering that it was the low bidder, Intervenor, through its president, Jeffrey McGrand, spoke by telephone with Mr. Flynn and asked how to withdraw the "exception," as Mr. Flynn characterized the above- described conditions accompanying Intervenor's bid. On the same day, December 22, Mr. J.M. LaRock, Southern Sales Manager of US Pipe, sent a letter to Intervenor stating that, "[a]fter several conversations with Mr. . . . Wilson[,] it has become apparent to us that the verbal concessions we have been given will become a reality. In view of their willingness to compromise on some of the specifications which would exclude all but one pipe manufacturer, we believe it will be unnecessary to qualify our bid to you." By letter dated December 27 from Mr. Flynn to Mr. McGrand, Post Buckley acknowledged that Respondent had received a letter dated December 22 from Mr. McGrand asking Respondent to disregard the handwritten, asterisked note added to Intervenor's bid. Mr. Flynn's letter notes, though, that Intervenor's bid contained the US Pipe letter advising that it could not supply compliant 42-inch pipe. Mr. Flynn's letter continues: This contradiction must be resolved before we can recommend to the Authority staff the award of the contract to your company. I suggest that you furnish a letter from a senior official of U.S. Pipe (that is, an individual who has authority over the production and testing of the pipe and who can commit to compliance with the specifications) refuting Mr. Stine's statement on the inability of U.S. Pipe to furnish the material as specified. If the contradiction cannot be resolved in the manner described, then [Intervenor] must name a supplier for the 42-in. pipe that can meet the specifications, with no change in the bid price, for us to recommend to the Authority that the contract be awarded to [Intervenor]. If you follow this course, please submit the Pipe Manufacturer's Commitment from that supplier. The second statement in Mr. Stine's letter says "Several conversations with the engineer have lead (sic) us to believe that concessions of (sic) the specifications will be made . . .." Be assured that the engineer [Post Buckley], made no statements before the bid opening that would have led anyone to believe that concessions would be made to the specifications as bid. While Mr. Stine's statement doesn't directly relate to the formality of the bid process, it does suggest that [Post Buckley] would fail in our duty to our client, and we reject that notion. We request, if another letter from U.S. Pipe is to be forthcoming, that Mr. Stine's statement in this regard also be refuted. The next meeting of the Authority Board of Directors is on . . . 5 January 2000. Mr. Lehman intends to recommend to the Board award of the contract at that meeting. . . . we will need, in hand, the resolution of the matter discussed in this letter by the close of business in Sarasota tomorrow, 28 December. In a telephone conversation the next day between Mr. Flynn and Mr. LaRock, Mr. LaRock continued to ask whether Respondent would relax the specifications to which US Pipe had taken exception, and Mr. Flynn stated that Respondent would not do so. At the end of this conversation, Mr. LaRock advised Mr. Flynn that US Pipe representatives would discuss the matter the following day and decide then what to do. The next day, US Pipe representatives decided that they could conform to the specifications. By letter dated December 29, 1999, from Mr. LaRock to Intervenor, US Pipe asked that Intervenor "[p]lease disregard previous correspondence from us regarding this project. It is our intention to furnish the materials for referenced project as per the specifications issued." By letter dated December 30, 2000, Mr. Eash advised Mr. Lehman that Post Buckley found that the apparent low bidder was Intervenor. The letter notes the handwritten, asterisked note in Intervenor's bid, but adds: "After the bid opening, [Intervenor] requested in writing that the note be disregarded and that they take no exception to the Contract Documents. In addition, United States Pipe and Foundry Company declared in writing its intention to furnish the materials per the specifications." The letter recommends that Respondent award the contract to Intervenor, and Respondent eventually did so. At no time did Respondent or its agent, Post Buckley, ever modify, orally or in writing, the subject specifications concerning the 42-inch ductile iron pipe. Respondent and Post Buckley prepared these specifications based on their intention that this buried pipe convey water for at least 50 years. No bidder or prospective bidder challenged the specifications. At no time did Respondent ever receive any communication, orally or in writing, from US Pipe that it was withdrawing its exception to the specifications. But for the letters of December 22 and 29 from US Pipe to Intervenor, Respondent would have found Intervenor's bid nonresponsive. As late as December 28--one week after bid opening--US Pipe continued to reserve to itself the decision whether to go forward with the contract. The present record leaves little room for doubt concerning the materiality of the difference between what Respondent specified and what Intervenor (and US Pipe) offered. Among Respondent, Intervenor, US Pipe, and Post Buckley, US Pipe possessed the most knowledge concerning 48-inch pipes, and US Pipe consistently excepted to the specifications until eight days after bid opening. Insisting that US Pipe definitively withdraw its exceptions, Post Buckley wisely treated the exceptions as a material variance from the specifications, rather than a minor irregularity whose existence would not interfere with the execution of an enforceable construction contract. The materiality of the difference between the pipe specified and the pipe bid gave Intervenor a unilateral option on the contract that other bidders were obviously denied. By allowing Intervenor to withdraw the exceptions after bid opening, Respondent effectively gave Intervenor a free look at the contract. Until the conditions were withdrawn by Intervenor and US Pipe, whose participation in the formation of the contract between Intervenor and Respondent was substantial, Intervenor and Respondent could not reached a mutually enforceable contract. Under the circumstances, Respondent’s award of the contract to Intervenor is manifestly unfair to the other bidders and undermines the integrity of the bidding process. In the eight days following bid opening, Intervenor enjoyed the unfair advantage, not shared by other bidders, of analyzing the job and its bid, knowing that the absence of an enforceable contract would allow it to walk away from the job with impunity. That Intervenor did not walk away from the job means only that the post-bidding analysis disclosed that the job would be profitable. Intervenor relies on various provisions of the ITB to support Respondent’s decision to award the contract to Intervenor. This reliance is misplaced. For instance, the ITB requires the winning bidder to provide labor and materials in strict conformity with the specifications; however, Intervenor and US Pipe improperly conditioned the specifications with which Intervenor was willing to comply. The Pipe Manufacturer’s Commitment likewise does not cure the conditions improperly contained in Intervenor’s bid; the commitment assures only that the pipe will conform to the requirements of the contract documents, which, again, Intervenor and US Pipe improperly altered. Other ITB provisions reserve to Respondent the right to waive minor irregularities, to negotiate with the winning bidder, or to allow the winning bidder to substitute suppliers and manufacturers; however, these provisions apply only to bids that are responsive to the ITB.
Recommendation It is RECOMMENDED that the Peace River/Manasota Regional Water Supply Authority enter a final order rejecting Intervenor’s bid. DONE AND ENTERED this 30th day of March, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2000. COPIES FURNISHED: Joseph W. Lawrence, II Vezina, Lawrence & Piscitelli, P.A. 350 East Las Olas Boulevard Suite 1130 Fort Lauderdale, Florida 33394 Mary M. Piccard Vezina, Lawrence & Piscitelli, P.A. 318 North Calhoun Street Tallahassee, Florida 32301 Gary A. Vorbeck Vorbeck & Vorbeck, P.A. 207 East Magnolia Street Arcadia, Florida 34266 Donald E. Hemke Carlton Fields Post Office Box 3239 Tampa, Florida 33601-3239 Patrick J. Lehman, Executive Director Peace River/Manasota Regional Water Supply Authority 18911 Dam Road Bradenton, Florida 34206
The Issue The issues in this case are twofold: Whether PCA has demonstrated entitlement to the proposed industrial wastewater construction and operation permit (proposed permit) that is the subject of this proceeding by providing reasonable assurance to the Department that the proposed construction activity and subsequent operation of the company's industrial wastewater treatment facility will comply with applicable provisions of Chapter 403, Florida Statutes, and implementing Department rules, and: Whether granting to PCA a 27-month variance from the water quality standard for transparency in the Withlacoochee River, and the associated second amendment to Consent Order, pursuant to Section 403.201(1)(b), Florida Statutes, is an abuse of the Department's discretion.
Findings Of Fact The Parties As stipulated by the parties, Sierra Club, Florida Chapter; Four Rivers Audubon Society, Inc.; Florida Canoeing & Kayaking Association, Inc.; and the Florida Wildlife Federation, Inc., are each non-profit corporations registered or otherwise authorized to do business in Florida. As stipulated by the parties, the Department of Environmental Protection is the state agency charged with the responsibility for enforcing, implementing, and interpreting the provisions of Chapter 403, Florida Statutes, and Rule Chapter 62, Florida Administrate Code. As stipulated by the parties, Packaging Corporation of America is a Delaware corporation and is the applicant for the proposed permit and proposed variance. Background Mill Operation and Wastewater Treatment System PCA and its predecessors 1/ have owned and operated an unbleached kraft pulp and paper mill located near Valdosta, Georgia ("Valdosta Mill" or "Mill") since the mid-1950's. The Valdosta Mill employs approximately 450 people, and PCA's associated woodlands operation employs approximately fifty additional people. The operations at the Valdosta Mill contribute approximately $93 million per year to the local economy. Approximately 40 percent of those expenditures occur in North Florida. PCA produces unbleached, brown linerboard at the Valdosta Mill. Large volumes of water are used in the transfer of raw material logs to the debarking and chipping machines, in the chemical processes by which the wood chips are converted to pulp, and in the production of the linerboard product. PCA recycles process water in its operations. Ninety-five (95) percent of the daily process water volume used in the Mill is reused and recycled. Approximately five (5) percent, or 10 - 12 million gallons per day, however, must be removed from the process system. The requirement to discharge this volume of wastewater results from the fact that when contaminants in the process water reach a certain level, the water can no longer be effectively used in the process operations. Parameters of special concern when regulating the pulp and paper industry are biochemical oxygen demand (BOD5), total suspended solids (TSS), and pH. The Valdosta Mill wastewater receives initial primary treatment in a clarifier tank located at the Mill where solids are settled out. The wastewater then travels via gravity flow through a series of seven ponds which provide some natural biological treatment and mechanical aeration. For the period of January 1992 through September 1994, PCA's daily monitoring results demonstrate that the wastewater discharged from Bear Garden Swamp (denominated by PCA as Pond 6) contains concentrations of BOD5 and TSS below the discharge limits established by the United States Environmental Protection Agency and the Department, except for exceedances of the maximum daily TSS limit on February 5, 1992 and January 16, 1993. Periodic monitoring also indicates that unacceptable fecal coliform and total coliform counts in the wastewater are normally reduced in Jumping Gully Creek prior to mixing with the Withlacoochee River. The wastewater leaving the pond system flows through Jumping Gully Creek in Georgia and Florida to an outfall structure in a control dam at the confluence of Jumping Gully Creek and the Withlacoochee River. At various times during the year, the wastewater is the sole or predominant flow in Jumping Gully Creek. The wastewater is discharged to the Withlacoochee River through four diffuser ports located in a pipe placed in the bottom of the River. Jumping Gully Creek is a privately-owned watercourse that flows approximately three miles from Carroll's Pond (denominated by PCA as Pond 7) to the outfall structure in the Withlacoochee River in north Florida. The 0.6 mile reach of Jumping Gully Creek from the Georgia/Florida state line to its confluence with the Withlacoochee River is now classified as a Class III water. The Withlacoochee River is a navigable water used by the public for recreation, including canoeing, and is also classified as a Class III water. There are control valves located at various points in the treatment system that allow PCA to regulate the amount of discharge released to Jumping Gully Creek and the Withlacoochee River. The purpose of these controls is to permit PCA to protect the water quality of the Withlacoochee River during low flow periods as required by the Department. Regulatory History of Jumping Gully Creek Jumping Gully Creek's regulatory designation as a Class III water of the State of Florida is a relatively recent event. Up until the mid-1980s, Jumping Gully Creek was not subjected to Department water quality regulations. During review of a PCA permit in 1984, the Department determined that the portion of Jumping Gully Creek located in Florida was to be regulated as a water of the state. Although Jumping Gully Creek was designated by then applicable rules as "unclassified", PCA was required to comply with certain minimum and general water quality criteria in Jumping Gully. In 1986, the Department issued Temporary Operation Permit IT-24102659 ("1986 Permit") to PCA requiring the Company to conduct various treatability studies and to install additional treatment and other controls in an attempt to achieve compliance with the then applicable standards in Jumping Gully Creek. In 1991, following rulemaking by the State of Florida Environmental Regulation Commission and administrative litigation before the Division of Administrative Hearings (DOAH Case No. 90- 7357R), Jumping Gully Creek was designated a Class III water body, subject to all Class III water quality standards in addition to the minimum and general criteria. When Jumping Gully Creek was designated a Class III water of the State, the wastewater from the Valdosta Mill still did not comply with the newly applicable water quality criteria. In 1992, the Department issued Temporary Operation Permit No. IT24- 192462 ("1992 Permit") and Consent Order 91-2109 ("1992 Consent Order"). The 1992 Permit and 1992 Consent Order required PCA to conduct "water quality studies, engineering feasibility studies, and corrective actions to bring the discharge into compliance with applicable water quality standards in Jumping Gully Creek and the Withlacoochee River." The 1992 Consent Order required PCA to carry out an engineering study to evaluate various methods of achieving compliance with Class III water quality standards in Jumping Gully Creek. The Consent Order listed various wastewater treatment options that were to be considered and also expressly directed PCA to consider the option of removing the wastewater from Jumping Gully Creek either through spray irrigation or through an alternate conveyance to the Withlacoochee River. The 1992 Consent Order required PCA to conduct a Phase I screening evaluation of the several alternatives referred to above. The Consent Order also required a Phase II detailed feasibility study of the alternatives that survived the Phase I screening evaluation. In response to the requirements of the 1992 Consent Order, PCA submitted Phase I and Phase II evaluations that were subject to review and comment by Department staff. The Department approved both phases. While the Phase I engineering study demonstrates that the alternate conveyance option could result in consistent compliance with all Class III water quality standards in Jumping Gully Creek, state agencies of Florida government became involved in the process of reclassifying Jumping Gully Creek to a Class III water in order to protect and improve the water quality in the Withlacoochee River. In this regard, PCA owns Jumping Gully Creek in its entirety. The creek and pond system are fenced and posted with "No Trespassing Signs." The small creek is not open to the public and does not support any recreational uses. The parties have stipulated that removing wastewater from Jumping Gully Creek and disposing of it through land application or spray irrigation is not a reasonable alternative in this case. PCA cannot significantly reduce or minimize the volume of wastewater that must be treated and discharged by increased internal recycle of process water or reuse of wastewater. Other Permitting Issues In all of the Department permits previously issued authorizing the discharge of wastewater from the Valdosta Mill, the applicable point of final discharge for measuring compliance with the discharge limitations contained in the permits has been at the existing outfall structure to the Withlacoochee River. The 1986 Permit and 1992 Permit contain both "technology-based effluent limitations" and "water-quality based effluent limits" applicable to the wastewater discharge generated at the Valdosta Mill. The technology-based limits established by federal and state regulation limit the amount of BOD5 and TSS that may be discharged based upon the Mill's production rate. The water- quality based limits in the permits were imposed by the Department to protect the quality of the Withlacoochee River during low flow by taking advantage of PCA's ability to manage its wastewater discharge. Low river flow is the time when the discharge has the greatest impact on the Withlacoochee River. The water-quality based limits include a ceiling on the amount of BOD5 that may be discharged under low Withlacoochee River flow conditions. The Department established a minimum DO level of 4.0 mg/l from June to October as a site specific alternative criterion in 1990. The 1992 Permit contains higher technology-based limits for BOD5 than those contained in the 1986 Permit. Specifically, the 1992 permit authorized the discharge of 12,869 lbs per day of BOD5 on a daily maximum basis and 6,434 lbs per day on a monthly average basis while the 1986 permit authorized a level of 11,100 lbs per day daily maximum basis and 5,550 lbs per day on a monthly average basis. The increase in technology-based limits was based upon production increases at the Valdosta Mill. The 1992 permit, however, imposed for the first time an annual average limitation on BOD5 discharges of 5,550 lbs per day and lowered the water-quality based limit applicable to the discharge. The 1986 water-quality based limit established a ceiling of 14 lbs of BOD5 per cubic foot of stream flow in the Withlacoochee River. The 1992 TOP lowered this water quality based limit to a maximum of 12 lbs of BOD5 per cubic foot of Withlacoochee stream flow. The parties have stipulated that, if PCA had discharged the maximum amount of BOD5 authorized under the 1992 Permit, it would have discharged approximately 3.1 percent more BOD5 than would have been authorized under the 1986 Permit. Because the issuance of the 1992 Permit involved an increase in allowable technology-based limits over those contained in the 1986 Permit, the Department required PCA to address antidegradation review requirements in the applicable Department rules, i.e., then designated Rules 17-4.242(1) and 17- 302.300(7), Florida Administrative Code. PCA responded to this requirement by submitting information on April 9, 1991, and on October 23, 1991, addressing the change in effluent limitations from the 1986 Temporary Operating Permit (TOP). Construction and Operation of Pipeline Following the determination that the use of a pipeline alternate conveyance was the only technologically and economically feasible means of achieving Class III standards in Jumping Gully Creek, PCA filed, on January 14, 1994, an application for a permit to construct and operate the pipeline in accordance with the 1992 Consent Order. For the first time, the proposed pipeline permit would establish mixing zones for PCA in the Withlacoochee River. Previous permits issued to PCA did not have this result, since those permits dealt with disposal of the effluent into Jumping Gully Creek. The proposed mixing zones in the Withlacoochee River encompass a distance of up to 1,171 feet downstream of the diffuser structure in the Withlacoochee for the following 11 pollutant parameters: dissolved oxygen; specific conductance; cadmium; copper; zinc; oil and grease; toxicity; pH; turbidity; unionized ammonia; and lead. The pipeline will not provide treatment for pollutants in the wastewater it conveys. Dilution will not be available since the effluent enters the pipeline and goes directly to the river. The extensive wastewater monitoring data from the outfall of Bear Garden Swamp (Pond 6) is representative of the nature and quantity of pollutants, except for dissolved oxygen, that will be discharged into the Withlacoochee River by the pipeline. A planned mechanical aeration system is expected to increase dissolved oxygen content in the wastewater prior to entering the pipeline. The proposed mechanical aeration will only assure a minimum concentration of DO in the wastewater of 1.5 mg/l and an average concentration of 3.5 mg/l. The loss of the treatment effect presently realized by permitting the effluent to flow through Jumping Gully Creek will increase pollutants discharged into the river as follows: an average increase in fecal coliform counts of 102 per 100 ml; an average increase of fecal coliform in the dry season of 143 per 100 ml; an average increase of 629 lb/day of biochemical oxygen demand (double the amount currently discharged); an average increase of 210 lb/day of total suspended solids; an average increase of 4 NTU turbidity; an average loss of dissolved oxygen of 1.4 mg/1; and an average increase in specific conductivity of 492 umhos/cm. While Jumping Gully's outflow of natural drainage will provide some dilution at the confluence in the river, the creek will have only a seasonal outflow. With or without the pipeline, the effluent discharge is so darkly- colored that transparency standards in the Withlacoochee are not presently met and will not be met in the future, absent color treatment prior to discharge. Fecal coliform is the most significant pollution parameter which will increase as a result of the pipeline. Sewage from toilets serving the 450 plant employees is discharged into the mill effluent treatment system which consists of one primary clarifier and a series of ponds. This untreated human waste results in substantially elevated fecal coliform counts at Pond 6. The assertion by PCA's representative at final hearing that racoons and other warm blooded wildlife in the area of the pulp mill are responsible for the elevated fecal coliform levels is not credited. Fecal coliforms are indicators of human disease vectors, such as cholera, hepatitis, various intestinal diseases, parasite and viruses. Mixing with high pH and elevated temperature found in pulp mill effluent does not disinfect fecal coliform. Also, disinfection is not effective through the treatment ponds. Disinfection of the wastewater can be achieved by chlorine, ozone, or UV radiation. Chlorine is not preferred in view of the adverse impacts associated with that chemical. Petitioner maintains and the data establishes the concentration of fecal coliform in the proposed wastewater discharge in excess of the monthly average limitation contained in Rule 62-302.530(6), Florida Administrative Code. The available data from Pond 6 in quarterly monitoring reports for the 2 and 1/2 year period of December 1991 through July 1994, show the following fecal coliform counts (expressed in # per 100 ml) as follows: 12/17/91 700 3/5/92 500 6/24/92 300 7/21/92 220 10/6/92 300 1/19/93 130 3/17/93 130 5/26/93 170 8/5/93 230 10/6/93 500 2/8/94 17 4/5/94 240 7/6/94 300 When these counts are used to compute the geometric mean for fecal coliform pursuant to Rule 62-600.200(33), Florida Administrative Code, the resulting calculation exceeds the 200 per 100 ml limitation contained in Rule 62-530(6), Florida Administrative Code. Using all the samples, except for the 12/17/91 count, in calculations pursuant to the rule, PCA and the Department concede in posthearing submissions that the mean monthly fecal coliform count in Pond 6 is 199.6 per 100 ml. The 12/17/91 count cannot be ignored and is considered a part of the calculation. Although the rule requires extensive sampling for fecal coliform of at least ten samples in a thirty day period, PCA conducted no such sampling and the Department required no such sampling. Even so, the Class III water quality standards for fecal coliform require monthly average counts not exceeding 200 per 100 ml; not more than 10 percent of samples with an excess of 400 per 100 ml; and no sample in excess of 800. 2/ The available data indicates violations of two of the three Class III water quality standards for fecal coliform at Pond 6. Generally, fecal coliform is processed as the wastewater flows through the lower 3 mile portion of Jumping Gully Creek with a resultant sharp reduction in fecal coliform counts. Even with this treatment, a violation of the daily maximum fecal coliform limit was reported at the outfall in November of 1990. The discharge from the proposed pipeline would result in Class III water quality violations for fecal coliform in the Withlacoochee River. The treatment effect of Jumping Gully Creek would be lost. For other parameters that are predicted to exceed Class III water quality criteria in the proposed wastewater discharge, PCA has requested mixing zones as authorized by Rule 62-4.244, Florida Administrative Code. A request for a mixing zone for fecal coliform was rejected by the Department. In response to Department requests for additional information, PCA filed supplemental submittals on March 22, April 21, and June 24, 1994. The Department then determined the application to be complete and proposed to issue the permit. Public notice of this proposal was timely published in a newspaper of general circulation in the vicinity of the Valdosta Mill. Wastewater is proposed to be conveyed through an underground 48" high density polyethylene pipeline which will run parallel to Jumping Gully Creek for the approximately three mile distance to the Withlacoochee River. The pipeline will then be connected to the existing outfall and diffuser structure. PCA will continue to operate the wastewater discharge system as a managed system as required under the 1992 Permit and the proposed permit. The proposed permit contains the same technology-based and water quality based effluent limitations as those contained in the currently effective 1992 Permit. The proposed permit also places further restrictions on BOD5 loading when the upstream DO concentration drops below 1.50 mg/l. An opening will be created in the bottom of the existing control dam to allow an interchange of water between Jumping Gully Creek and the Withlacoochee River. Water flow in Jumping Gully Creek will not normally be impounded behind the dam, but will flow through the aperture in the dam to the Withlacoochee River. However, the opening is not large enough to allow the free flow of the Creek to the Withlacoochee with the result that there will still be a backwater effect with flow over the top of the dam during periods of high water in the Creek. During the course of pipeline construction and installation activities, PCA will implement management practices to assure that these construction activities will not cause adverse impacts to the Withlacoochee River. Impacts on Jumping Gully Creek The wastewater currently causes a significant adverse impact on water quality in Jumping Gully Creek as a result of periodic depressions in DO and increased specific conductivity. Once the pipeline is in operation, wastewater from the Valdosta Mill will no longer be conveyed through Jumping Gully Creek. The removal of the treated wastewater together with the construction of the opening in the dam will allow Jumping Gully Creek to achieve Class III water quality standards. There will be a net environmental benefit to the Creek. Impacts on the Withlacoochee River Minimum Water Quality Criteria The proposed discharge would meet the minimum water quality criteria in Rule 62-302.500, Florida Administrative Code, absent the presence of fecal coliform 3/ as discussed above. The parties have stipulated that the current wastewater discharge into the Withlacoochee River does not and the proposed discharge from the pipeline will not produce odor in violation of the minimum water quality criteria. While the water of the Withlacoochee River in the vicinity of the proposed discharge is not a known source of human water consumption, the river does provide recreational boating opportunity. Inferentially, swimming (even involuntarily) and ingestion of the water by humans in the area cannot be ruled out. The color of the proposed discharge together with the physical "boiling" at the diffuser ports during low flow conditions constitute a nuisance in violation of the minimum water quality criterion. While the available evidence fails to establish that the "boiling" at the discharge standing alone constitutes a nuisance, such is the case when coupled with the color of the discharge. The color problem, however, should be ameliorated when color treatment is implemented. The color treatment, and implementation of sewage treatment to remove fecal coliform from the discharged wastewater, should obviate any substantial interference caused by the Mill discharge with the general public's use or enjoyment of the river. Class III Standards As set forth in the preceding findings, the information provided in the permit application and presented at hearing, demonstrates that except for the discharge of fecal coliform, the Withlacoochee River will be in compliance with the applicable Class III water quality standards for each of the following parameters at the maximum distance indicated from the point of discharge from the proposed pipeline, provided that the wastewater discharge volume is never more than 15 percent of the flow of the Withlacoochee River. Dissolved Oxygen 1171 ft. Oil & Grease 362 ft. Chronic Toxicity 1171 ft. Turbidity 360 ft. Zinc 1171 ft. Specific Conductance 198 ft. pH 1171 ft. Copper 113 ft. Lead 1171 ft. Cadmium 98 ft. Unionized Ammonia 369 ft. The proposed permit contains a limitation which restricts the wastewater discharge flow to this 15 percent limitation. The mixing zone lengths set forth above were calculated based upon worst-case, low river flow conditions as required by Department rule. Under normal or high river flow conditions, compliance with Class III standards will be achieved at distances closer to the point of outfall. The maximum 1,171 foot mixing zone length established in the proposed permit will not include any existing water supply intake structures and does not involve more than 10 percent of the total length of the Withlacoochee River. The mixing zone established in the proposed permit will not include a significant nursery area for indigenous aquatic life. The area in question is a relatively deep pool area (ranging in depth from 4-1/2 to 10 feet, under low or relatively low flow conditions) that does not contain shoal or riffle areas or any rooted aquatic vegetation that would serve as a nursery area for juvenile species. Biological and Ecological Impacts Absent difficulties imposed by the excessive fecal coliform discharge, the proposed discharge should otherwise have no significant adverse effect on aquatic ecology or biology in the Withlacoochee River. There were no significant differences between the fish populations upstream and downstream from the discharge in 1989-1990. Per the opinion of George Burgess, an expert on fish ecology, the proposed discharge will have no significant adverse impact upon the downstream fish populations if the proposed discharge is similar in quality to that which was present in the 1989-1990 timeframe. Mr. Stephen Carr testified that the proposed discharge would have an adverse impact on the Gulf sturgeon, a threatened species under the federal Endangered Species Act. Mr. Carr was accepted as an expert on the migratory habits of the Gulf sturgeon and testified that, in his experience, the Gulf sturgeon did not seem to remain in the vicinity of the confluence of the Withlacoochee River and the Suwannee River for the length of time that he would otherwise have expected. He opined that this behavior may be the result of adverse water quality conditions in the Withlacoochee River resulting from discharges of sulfate from the Valdosta Mill. While the witness has significant practical experience in tracking Gulf sturgeon, he has no educational or professional training or experience in water quality or water chemistry nor in biology or fish ecology. His opinion with regard to why the Gulf sturgeon absences itself from the confluence of the two rivers is not credited. There is no significant differences between sulfate concentrations in the Withlacoochee River near its confluence with the Suwannee River and sulfate concentrations in the Suwannee River above and below the confluence with the Withlacoochee. Furthermore, the data presented by PCA demonstrated that sulfate values in a spring that Mr. Carr testified attracted significant numbers of Gulf sturgeon are higher than sulfate concentrations at springs that the Gulf sturgeon appear to shun. There is no significant rooted aquatic vegetation in the upstream or downstream vicinity of the discharge. Loss To The River Of Creek Treatment/Dilution With the exception of fecal coliform addressed above, the loss of treatment and dilution that currently takes place in Jumping Gully Creek will be replaced to some extent by the dilution of rainfall water that will continue to enter Jumping Gully Creek and flow into the Withlacoochee River where it will mix with the discharge. Natural aeration in Jumping Gully Creek can increase the DO content in the wastewater discharge at the point of discharge to the Withlacoochee River. Natural aeration will not occur in the proposed pipeline. As previously noted, the proposed permit requires the addition of mechanical aeration to provide a minimum DO concentration at all times of 1.5 mg/l in the wastewater at its discharge from the pipeline into the Withlacoochee River. The mechanical aeration system has been designed to provide an average DO content in the wastewater of 3.5 mg/l. Discharge of mechanically aerated wastewater through the pipeline will result in compliance with the applicable water quality standard for dissolved oxygen at the maximum length of 1,171 feet from the point of discharge into the Withlacoochee. Jumping Gully Creek provides treatment of certain constituents in the treated wastewater discharge. The parties have stipulated that, during the period from January 1992 through September 1994, there were average reductions of 629 lbs per day of BOD5, 210 lbs per day of TSS, and 4 NTU of turbidity in the wastewater after its flow through Jumping Gully Creek. In addition, the specific conductance of the wastewater was reduced by approximately 6.8 percent as it travelled through Jumping Gully Creek during periods of no dilution. Testimony of Dr. Jim Sullivan, PCA's expert in water chemistry, establishes that the major effect of BOD5 discharges into a water body is a reduction in DO concentration. An additional 629 lbs per day of BOD5 from the Valdosta Mill through the pipeline will result in a maximum reduction of 0.2 parts per million dissolved oxygen. Such a minor change is not expected to have a significant environmental impact. Also, as established by Sullivan's testimony, an additional 210 lbs per day of TSS discharged through the pipeline will increase TSS concentrations in the Withlacoochee River by a maximum of 0.3 parts per million. The natural background of TSS in the Withlacoochee River ranges from 6 to 20 parts per million and the minor increase associated with the loss of treatment otherwise obtained in Jumping Gully Creek has no environmental significance. Bob White, an expert on water quality impact analysis and mixing zone determinations, testified that the treatment provided by Jumping Gully Creek would not eliminate or significantly reduce the need for mixing zones in the Withlacoochee River. In particular, White testified that the loss of turbidity treatment in the amount of 4 NTUs associated with the transfer of wastewater from Jumping Gully Creek to the pipeline caused PCA to request a mixing zone length for turbidity approximately 23 feet longer than it would need if the wastewater continued to be discharged through Jumping Gully Creek. Similarly, White testified that the loss of treatment of specific conductance associated with moving the discharge from Jumping Gully Creek to the pipeline meant that Jumping Gully Creek was requesting a mixing zone approximately 31 feet longer than would be required if the wastewater discharge stayed in Jumping Gully Creek. Transparency The discharge of wastewater from the Valdosta Mill, whether through Jumping Gully Creek or the proposed pipeline, will continue to cause a violation of the Department's water quality standard for transparency in the Withlacoochee River during low river flow conditions. Under these conditions, the primary source of flow in the Withlacoochee River upstream of the Valdosta Mill discharge is spring water, which is naturally clear. When the colored wastewater from the Valdosta Mill enters the Withlacoochee during these time periods, the transparency in the river is reduced by more than ten (10) percent as compared to natural background in violation of Rule 62-302.530(68), Florida Administrative Code. During the Phase I and Phase II study effort required by the 1992 Consent Order, PCA evaluated various technologies available to remove color from the Valdosta Mill wastewater in order to achieve compliance with the applicable Department standards. Although the Phase I engineering report concluded that it was not technologically or economically feasible to treat all of the Valdosta Mill wastewater on a year-round basis to assure compliance with standards in Jumping Gully Creek, the Phase II evaluation demonstrated that it was technologically feasible to implement color removal technology during low river flow conditions prior to discharge. On October 24, 1994, PCA requested a variance from the water quality standard for transparency, pursuant to Section 403.201(1)(b), Florida Statutes, for a 27-month period to allow adequate time to take steps to implement color removal treatment of the wastewater. On December 15, 1994, the Department issued its notices of intent to grant the proposed variance and to enter into a Second Amendment of Consent Order 91-2109, which reiterates the 27-month schedule set forth in the variance. Public notice of the proposed Agency action was published by PCA and the Department. The implementation schedule contained in the proposed variance is designed to provide adequate time to allow PCA to conduct pilot tests and sludge handling studies, to design color removal and sludge handling systems based upon the result of these studies, to obtain necessary preconstruction permits, and to construct the color treatment system. The evidence presented at the hearing demonstrated that a 27-month time period to accomplish this effort is reasonable. At the end of the variance period, the wastewater will comply with the Department's water quality standard for transparency. The issuance of the time limited variance from the water quality standard for transparency in the Withlacoochee River and Jumping Gully will have no additional significant adverse effect on the aquatic ecology of either of the Class III waters.
Recommendation Based on consideration of the facts found and the conclusions of law reached, it is RECOMMENDED that Tenneco Packaging be GRANTED an industrial wastewater construction and operation permit for the proposed pipeline upon the conditions contained in the proposed permit and upon the additional condition that Tenneco Packaging shall segregate and remove all domestic waste from the Mill wastewater within four (4) months of issuance of the permit or by October 1, 1996, whichever is later, and GRANTED a 27-month variance from the water quality standard for transparency in the Withlacoochee River, upon the condition that Tenneco Packaging shall have implemented the requisite color treatment technology by the conclusion of that time period. DONE AND ENTERED this 9th day of April, 1996, at Tallahassee, Florida. DON W. DAVIS, 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 9th day of April, 1996.
Findings Of Fact Petitioner, John H. Phipps Broadcasting Stations, Inc., owns approximately 10,600 acres of land bordering on Lake Jackson. The corporation owns roughly seventy percent of the waterfront property around Lake Jackson. The corporation's land is used for agriculture. Less than ten percent of the land is used in a minor grain operation involving the interspersion of cover via several small grain fields. Most of these grain fields are in self-contained basins creating no erosion or runoff problems. These fields are conducive to the propagation of wildlife, particularly quail and deer. The grain produced by these fields is used, at least in part, in the corporation's cattle operation. Approximately twenty-five percent of the corporation's land is used in a cattle breeding operation involving three to five hundred head of cattle. No feed lot operation is involved. The cattle are in pastures, the majority of which are bounded by the waters of Lake Jackson. The corporation fences to and into the water because of the fluctuating level of Lake Jackson and the necessity to contain their cattle. This practice has been ongoing for more than twenty-nine years. The corporation presently has no permits of an environmental nature in connection with the cattle operation. The testimony by Petitioner's witnesses is that the pasture cattle operation is very conducive to good water quality because it captures runoff and allows it to percolate. The remainder of the corporation's land is used in a timber operation which includes controlled burning to help contain erosion. Witnesses for Petitioner corporation testified that the water quality of Lake Jackson bordering the corporation's land is excellent. A high priority of the agricultural operation of the corporation is the maintenance of good water quality in Lake Jackson. Activities are not permitted on the corporation's land that degrade the water quality of the lake. Attempts are made to keep runoff from the lake. The evidence indicates that there are no discharges of water from the corporation's lands into Lake Jackson other than natural runoff. The testimony presented by Petitioner corporation at the final hearing was that the corporation intends to continue using the property as it is presently used and has no tentative plans for a different use of the property. Petitioner, Colin S. Phipps, owns approximately 1,000 acres bordering in part on Lake Jackson. He is also president of John H. Phipps Broadcasting Stations, Inc. Colin S. Phipps rents his acreage and shooting rights to an individual who farms the acreage. He testified that nothing was done on the property that presently requires permits from the Department of Environmental Regulation. John H. Phipps and John E. Phipps personally own parcels of land bordering on Lake Jackson. The three individual petitioners in this cause are officers of the corporate Petitioner. No evidence was presented to show activities on behalf of the petitioners on their property other than that set forth above. Further, it was the position of the petitioners that they did not foresee a change in the activities presently occurring on their property. It was their position that they had no tentative future plans for the property. They did indicate that they did not know what the future might bring. An experienced and qualified appraiser appeared on behalf of petitioners and testified that he had read the rules being challenged in this cause, was familiar with the subject property, and that in his opinion the vagueness of the proposed rules would dramatically and adversely affect the value of Petitioners' land. There are several problems with this opinion testimony. The witness did not testify that he had appraised the property. Rather, he testified that he was very familiar with the property. Thus, his testimony on the value of the land is speculation, albeit knowledgeable speculation, rather than the considered expert opinion of an appraiser. Further, the witness' opinion was based on his reading as a layman of the proposed rules and his speculation of their effect on the real estate market in which the subject lands might be offered for sale. The Hearing Officer found that the witness was a qualified appraiser with experience in appraising the economic impact of environmental regulations on waterfront property. Nevertheless, his interpretation of the proposed rules carries with it no aura of correctness for he is not, and, perhaps as all of us, cannot be, an expert in the interpretation of rules. The rules must speak for themselves and the witness can only speculate on the effect of different interpretations which might be given the rules. Therefore, the Hearing Officer concludes that the opinion of the witness is so speculative that his testimony is incompetent to support findings of fact as to the effect of the proposed regulations on the market value of Petitioners' real property.
The Issue Whether Southern Hy Power Corporation (Hy Power) has provided reasonable assurance, based on plans, test results, or other information, that its proposed hydroelectric facility will comply with the Management and Storage of Surface Water (MSSW) statutes and rules of Southwest Florida Water Management District (SWFWMD) and the Wetland Resource Management permit (WRM)/water quality certification statutes and rules of the Florida Department of Environmental Protection (DEP).
Findings Of Fact By Joint Prehearing Stipulation the parties agreed to the following description of the parties and the project: PARTIES: The Department of Environmental Protection (the Department) is a government agency in the State of Florida existing by virtue of Section 20.255, Florida Statutes, and operating pursuant to Chapters 253, 373, 376, and 403, Florida Statutes, and Title 62, Florida Administrative Code. Under an interagency agreement with SWFWMD, the Department also implements Title 40D, Florida Administrative Code. The Department is located in Tallahassee, Florida, and it has a district office in Tampa, Florida, which district includes Levy County. Southern Hy Power Corporation is a Florida Corporation whose principal offices are located at 7008 Southwest 30th Way in Gainesville, Florida. Betty Berger is an interested party with a mailing address of Post Office Box 83, Inglis, Florida. The Campbells are an interested party with a mailing address of 245 Palm Street, Inglis, Florida. Hy Power applied on August 31, 1993, to the Department for a WRM permit/water quality certification to construct a hydroelectric facility on the Inglis By-Pass Channel. The project is located in Section 12, Township 17 South, Range 16 East, within the town of Inglis in Levy County. The facility consists of a powerhouse located on the south side of the channel measuring about 28 feet wide by 115 feet long, drawing water from the Inglis By-Pass Channel, passing it through a single-pit type turbine and discharging downstream of the Inglis By-Pass Spillway Dam. Hy Power applied on August 4, 1998, to the Department for a MSSW permit for the same proposed hydroelectric facility on the Inglis By-Pass Channel. DESCRIPTION OF PROPOSED PROJECT The project involves the construction of an intake structure, powerhouse, and tailrace on a 0.61-acre area located on the south side of the existing Inglis By-Pass Spillway. The facility will take advantage of the existing hydrostatic head that exists on either side of the Spillway Dam, to generate electricity. The powerhouse will be constructed below grade and will contain a single megawatt turbine and generating unit. The intake structure will divert flows from the upstream side of the Spillway Dam through the powerhouse and back into the By-Pass Channel. A small one-story control building and low profile substation will be constructed above grade within the boundaries of the project area. The hydroelectric project is considered to be a "Run of the River" type of facility because it can only use that water which flows down the existing channel. The geometry of the channel restricts flow to a certain amount, therefore the project cannot create or use flows above those that the By-Pass Channel can provide. The overall authority for control of water levels in Lake Rousseau and flow to the lower Withlacoochee River will remain with the DEP. Lake Rousseau was created in 1909 when the Inglis Dam was constructed across the Withlachoochee River for the purposes of hydroelectric generation. The dam impounds over 11 miles of the Withlachoochee River and forms a lake approximately 3,000 to 4,000 acres in size. Prior to construction of the Barge Canal, water released from the Inglis Dam would flow down the lower portion of the Withlachoochee River about 10 miles before entering into the Gulf of Mexico. In the mid to late 1960's the Army Corps of Engineers (ACOE) built a portion of the Cross Florida Barge Canal between the Gulf of Mexico and Lake Rousseau. The canal severed the Withlachoochee River downstream of the Inglis Dam causing its flow to be diverted into the Barge Canal and then into the Gulf. In order to maintain the flow of freshwater from Lake Rousseau to the lower segment of the River, the 8,900-foot long Inglis By- Pass Channel and Spillway were constructed. The resulting downstream flow ensures navigation in the lower portion of the River and sustains its freshwater and estuarine environment. The water level in Lake Rousseau is generally maintained at an elevation of 27.5 feet above mean sea level (msl) by a combination of the Inglis Dam, the Inglis Lock, which is located in the Barge Canal, and the By-Pass Channel Spillway. These water control features are known collectively as the Inglis Project Works. The water levels in the lower Withlachoochee River immediately to the west of the By-Pass spillway are close to sea level. The resulting head provides the potential energy needed to drive the proposed generator turbine. Under normal conditions the majority of water released from Lake Rousseau flows over the Spillway Dam into the lower segment of the River. According to the DEP Office of Greenways and Trails (OGT), the maximum capacity of the existing By-Pass Channel Spillway is 1,540 cubic feet per second. The hydroelectric project will divert whatever flow is allowed around the existing spillway through the turbine and back into the channel. When the Cross Florida Barge Canal project was cancelled in the 1990's, the ACOE transferred ownership of the property to the State of Florida Board of Trustees, who in turn has leased the property to the DEP for use as the Cross Florida Greenbelt State Recreation and Conservation Area. Management of this property, the control of river flow and lake levels, and operation of the Inglis Project Works are exercised by the DEP's OGT. The OGT utilizes a document entitled "Water Control Plan for Inglis Project Works," dated September 1994, as a guide to operating the structures. The Water Control Plan is incorporated as part of the MSSW intent to issue. On or about April 25, 1995, the Governor and Cabinet, sitting as the Board of Trustees of the Internal Improvement Trust Fund ("Trustees"), approved a request from Hy Power to sublease 0.61 acres of Greenway property at the project site for the purpose of providing electric power. The request was challenged by Berger and the Campbells, and resulted in an administrative hearing held on November 3, 1995. As a result of the hearing, Administrative Law Judge Larry Sartin entered a Recommended Order on July 12, 1996, that the Board enter an order approving execution by the DEP of the proposed sublease and dismissing the petition of Berger and the Campbells. The Recommended Order was approved by the Trustees in its entirety in a Final Order dated April 12, 1996 ("Final Order"). Berger v. Southern Hy Power Corporation et al., Case No. 95-3589. A copy of the Final Order is listed as an exhibit to this Stipulation, and the Findings of Fact and Conclusions of Law contained therein are adopted herein. As previously ruled by the undersigned, the previous Final Order is res judicata as to Petitioners in this case, who are collaterally estopped from challenging any of the findings of fact or conclusions of law contained in the previous Final Order. Petitioners reserve the right to litigate issues of fact and law not addressed in the Findings of Fact or Conclusions of Law contained in that Final Order with regard to the permittability of this project under the WRM and MSSW permitting proposals, and to raise objections as to relevance to this proceedings of any of the Findings of Fact or Conclusions of Law in the Final Order. On February 21, 1995, Hy Power filed application with the Federal Energy Regulatory Commission (FERC) for a conduit exemption from the licensing requirements of Part I of the Federal Powers Act (FPA) for the proposed project. Petitioners and various other persons filed protests with FERC in opposition to the project. On April 21, 1997, FERC issued an Order Granting Conduit Exemption, a copy of which is listed as an exhibit to this Stipulation. Petitioners in this case are collaterally estopped from challenging any of the findings or conclusions contained in that Order Granting Conduit Exemption. Petitioners reserve the right to litigate issues of fact and law not addressed in the Findings of Fact or Conclusions of Law contained in that Order Granting Conduit Exemption with regard to the permittability of this project under the WRM and MSSW permitting proposals, and to raise objections as to relevance to this proceedings of any of the findings or conclusions in the Order Granting Conduit Exemption. FACTS ADDUCED AT HEARING OUTLINE OF PROJECT The proposed project calls for the construction of a water retention structure along the existing By-Pass spillway, the excavation of a large hole in which the powerhouse and turbine would be constructed "in-the-dry" south of the existing dam, and a millrace below the proposed project to return the water back into the existing water course. Conflicting testimony was received regarding the facts surrounding the construction of the project. These included: whether the proposed project will touch the existing wing walls of the existing dam; whether the water retention structure is a coffer dam; whether the proposed water retention structure will safely retain the water; whether the powerhouse and turbine have sufficient negative buoyancy to stay in the ground; whether the proposed excavation will weaken the existing dam; and whether the de-watering of the excavation site will adversely impact ground and surface water. PROJECT DESIGN AND ENGINEERING Engineering for the project was directed by witness Richard A. Volkin, a professional engineer and president and CEO of Engineering Company, Inc., based in Canton, Massachusetts. Mr. Volkin has extensive national and international experience in the design, management, and operation of hydroelectric facilities. Other engineers in Mr. Volkin’s firm worked on the project under Mr. Volkin’s direct supervision, including John May, who became registered as a professional engineer in Florida in order to sign and seal the engineering drawings for the project, which he initially did around 1994. Mr. May became ill and retired in 1998. Because of the length of time the application process has taken and the fact that Mr. May retired, there was a time while the application was pending, when Hy Power's design team was without a registered Florida engineer. When this was brought to the attention of Hy Power, Hy Power substituted Steven Crockett for Mr. May as the Florida-registered professional engineer of record for the project. DEP routinely accepts an applicant’s changing its engineer of record during the course of permit application or construction. Mr. Crockett is a civil and structural engineer who has considerable experience in preparing dam structural designs. Mr. Crockett independently reviewed and evaluated the engineering drawings for the project. Mr. Crockett resealed the drawings by using his drawn seal and signing the plans because his embossed seal was not readily available and time was of the essence. Mr. Crockett has advised DEP that he is now engineer of record for the project, using the appropriate DEP forms. Mr. Volkin’s firm performed all of the studies required by the various agencies, including a geotechnical study of the area, a 50-year analysis of water flow in and out of the Lake Rousseau regime, and water quality evaluations of water in the By-Pass Channel. The ACOE performed deep hole borings of the soils (approximately 36-40 feet below sea level) in the area of the project site to determine soil stabilization conditions at the site when they were constructing the Inglis Project Works. The soil conditions found can reasonably be expected to be similar today. Mr. Volkin’s company also took its own eight-foot deep surface core samples. The purpose of those samples was to verify the ACOE data. The new core samples verified the original core samples. Mr. Volkin also reviewed the ACOE’s engineering drawings developed from construction of the Spillway Dam. These show that the dam is founded on limestone bedding that has been stabilized with concrete. The hydroelectric facility will be constructed adjacent to and south of the dam structure and adjacent to and north of the barge canal. The same type of limestone bedrock is found in the area of the proposed construction. The facility design includes an intake channel on the upstream channel and a tailrace downstream. Those are the only structures that will be constructed next to the By-Pass Channel. The construction of the facility itself will be "in the dry." Hy Power will use coffer dams to seal off the construction site from the By-Pass Channel, so that there will not be water leakage from the Channel into the construction site. Water from the By-Pass Channel will enter the power plant when the coffer dams are lifted and the water is allowed to flow into the facility. The Petitioners presented the testimony of Bill Edwards, an individual with considerable experience in the construction of bridges, cofferdams, and similar concrete structures in aquatic and semi-aquatic conditions. Mr. Edwards is a former hard-hat diver who worked all over the world and worked in Florida for many years prior to his retirement. Based upon his experience and expertise in construction related to projects of this type, his testimony is credible and worthy of consideration. Mr. Edwards pointed out that if the proposed water retention structure did not touch the wing wall of the existing dam, it could not keep the water out and would not have the strength that it needed to retain the water. Hy Power’s witnesses explained that the retention structure would be set close enough to the existing wing wall that waterproofing materials could be placed between the two structures to keep the water out. Further, that the existing plans did not show interior bracing which would be included for structural strength and integrity. In sum, the retention structure will be in contact with existing dam’s wing wall, but will be free standing and not dependent upon the strength of the wing wall for its strength. Mr. Edwards pointed out that a cofferdam by definition has walls on all sides of the structure. The structure proposed by Hy Power did not have walls all the way around the proposed excavation. In rebuttal, Hy Power presented evidence that its plans were conceptual, design drawing and not construction plans. Hy Power represented that in actuality it would put as many walls as were necessary to keep the water out of the hole it intended to excavate. Trash racks will be constructed at the intake structures to protect aquatic life and make sure that trash and vegetation do not enter the intake structure or go down river. The trash rack bars will be two inches on center, which the U.S. Fish and Wildlife Service has determined as the appropriate size for the protection of fish. The turbine blades are "double regulated," and operate generally between 60 and 90 revolutions per minute. The design enables the turbine to operate at a constant speed to generate a consistent flow of electricity, notwithstanding the fact that the flow of the water may vary. The blade speed is not very fast, and the 2.5-meter blades provide a two to three-foot opening. This design acts to prevent fish mortality. There are four ways to shut off the flow of water through the proposed structure: close the pitch of the blades, close the wicket gates, allow the counter balance to the wicket gates to kick in and automatically close the gates, and close off the main gates. This is a fail safe system ("four level redundancy") designed to work upon any failure. Once water goes through the generator, its velocity is reduced to no greater than its intake rate which is a maximum of three feet per second. This prevents the water being discharged from the tailrace from causing erosion. If the head of water in the dam produces a flow exceeding three feet per second, it can be diverted over the other dams which will be functional. The power plant will be encased in concrete, except for a small access way that enables a person to go down a set of stairs to the plant. It will be a sealed, waterproof structure, as required by FERC and the ACOE. This will prevent penetration of groundwater, or flood waters in the event a massive flood overtops the plant. The only water entering the powerhouse will be through the turbine tunnel for power generation purposes. Mr. Edwards pointed out that the powerhouse was a closed structure and as such would have positive buoyancy, that is, it would float. Mr. Edwards pointed out that the proposed site is between the barge canal and By-Pass spillway and there is a great deal of groundwater and potentiometric pressure in the existing water table. In sum, there is a unlimited supply of groundwater at the site, and powerhouse could float out of the ground just like an empty swimming pool. Hy Power presented rebuttal evidence that the weight of the building, the turbine, and the water flowing through the turbine would be close to negative buoyancy, and they would add additional weight to the structure as necessary to keep it in place. The project is designed to generate three megawatts of electric power which is enough electricity to serve between 300 and 3000 homes, depending on usage. The project is designed to be unmanned. This is common for facilities such as this. The plant can be operated by remote control, unlike the existing controls at the By-Pass Dam, which are operated manually. DEP can access, monitor, and control remotely the generator's operation to include shutting the facility down at any time. There will be remote sensors to monitor water elevations. Flood protection will improve because of the ability of DEP to manage water flow from a remote location. If there is any major disruption, the plant will shut itself down. The project is classified as "green power." In other words, it generates natural energy without any disruption to the environment. The project will have minimal to no impact on the environment. There will be no significant changes in water quality compared to existing conditions as a result of either construction or operation of the facility. WRM Permit Criteria Hy Power has provided reasonable assurances that the proposed project will not cause a violation of state water quality standards of Section 403.918(a), Florida Statutes (1991). The parties stipulated that turbidity and dissolved oxygen were the two surface water quality issues of concern in this proceeding. The receiving water body is the Inglis By-Pass Channel. The Inglis By-Pass Channel is a Class III surface water. The project is not located in a OFW. While the lower Withlacoochee River is an OFW, the OFW designation runs up the natural river itself, and does not include the Spillway Dam, tailrace, or the remainder of the By-Pass Channel. There would be no degradation of water quality at the point of contact with the Withlacoochee River OFW. The DEP and FERC looked specifically at potential for turbidity and dissolved oxygen in determining whether the project would violate state water quality standards. The standards for turbidity and dissolved oxygen will not be violated. Because the By-Pass Dam is an under flow structure, a minimum of oxygenation currently occurs as water flows through the existing dam. The proposed project runs the water underground through the generator; however, Hy Power will measure the dissolved oxygen below the dam in the Lower Withlacoochee River. In the event there is any lowering of dissolved oxygen, Hy Power can install a "sparge ring" to reoxygenate the water going through the turbine so that dissolved oxygen remains at current levels. No turbidity will be added to the receiving water as a result of the project, because water velocity is low and the structure is encased in concrete and rip-rap. The only other potential for turbidity would occur when the coffer dams are removed after construction is complete. The coffer dams can be removed with the generator closed to permit any turbidity to settle. The amount of siltation that might occur when the generator is opened would be insignificant. Where a project is not in a OFW, an applicant must provide reasonable assurance that the project will not be contrary to public interest. See Section 403.918(2), Florida Statutes (1991). Hy Power has provided such assurances. The project will not directly affect public health, safety or welfare, or the property of others. See Section 403.918 (2)(a)1., Florida Statutes. There are concerns relating to the structural integrity of the proposed facility and adjacent structures which are discussed extensively below. The project will have no adverse impact upon the conservation of fish and wildlife, including threatened and endangered species and their habitat. See Section 403.918 (2)(a)2., Florida Statutes. While manatees are not likely to be found at the project site, the installation of the trash racks will eliminate any potential adverse impact on manatees. In fact, the racks will be an improvement over the current unprotected Spillway Dam. DEP procedures require a specific manatee control plan be implemented to deal with site specific concerns. The project will not adversely affect navigation or the flow of the water or cause harmful erosion or shoaling. See Section 403.918(2)(a)3., Florida Statutes. The project will not adversely affect fishing or recreation values or marine productivity in the vicinity of the project. See Section 403.918(2)(a)4., Florida Statutes. The permanent project and its construction will cause no significant environmental impacts. See Section 403.918(2)(a)5., Florida Statutes. There will be no adverse impacts to significant historical and archeological resources. Section 403.918(2)(a)6., Florida Statutes. With regard to the impact on current conditions and relative value of functions being performed by the areas affected by the proposed activity, there will be no negative impacts. See Section 403.918(2)(a)7., Florida Statutes. Improvement will result from better control of water flow at the project site, installation of trash racks and implementation of green power. THE FORESEEABLE ADVERSE SECONDARY OR CUMULATIVE IMPACTS Potential adverse secondary impacts related to power transmission are addressed through the fact that there is an existing power line corridor that can be used to transmit the electricity. Any need to change the corridor could be addressed by subsequent DEP permitting. Cumulative impacts are not at issue. Mr. Gammon, with Florida Power, acknowledged that the current electric company, presumably Florida Power, would be required by FERC to transport the electricity generated by Hy Power over its existing corridor and poles. No final decision has been made regarding how to access the site with equipment during construction. Several feasible construction options exist, and there are several ways of accessing the site with heavy equipment vehicles and without impacting wetlands. Any final decision would be subject to DEP approval. Since the project meets the public interest criteria of Section 403.918(2)(a), Florida Statutes, and wetland impacts are minimal, the project is permittable without the need for mitigation. See Section 403.918(2)(b), Florida Statutes. The ACOE has issued a permit for the facility. The permit varies slightly from the DEP intent to issue in the use of reinforced concrete rather than rip-rap on the bottom half of the intake channel. This is to comply with ACOE preference, but the variation has only an environmental benefit. Counsel for Petitioners sought to elicit testimony from Linda Sloan, Executive Director of the Withlacoochee Regional Planning Council, with regard to compliance of the proposed project with the Town of Inglis Comprehensive Plan and Land Development Code. Such compliance is not relevant to this proceeding. At any rate, Ms. Sloan conceded that any prohibition that might apply in the Land Development Code to construction of the proposed facility could potentially be alleviated by exemption or variance provisions in the Code. MSSW PERMIT CRITERIA The project will provide adequate flood protection and drainage in the conventional sense. See Rule 40D-4.301(1)(a), Florida Administrative Code. Because the amount of impervious area is minimal, runoff from the project will not in any way contribute to increased flooding or adversely impact drainage patterns. The total amount of impervious area of the facility is less than that of a single-family residence. SWFWMD rules do not even require MSSW permits for single-family residences because the impact is not significant. The only purpose for requiring a MSSW permit for the project is to review the project’s potential downstream impacts to the watershed, not stormwater runoff from the facility itself. The project will not cause adverse water quality or water quantity impacts on adjacent lands in violation of Chapter 373, Florida Statutes, or cause a discharge that violates state water quality standards. See Rule 40 D-4.301(1)(b), Florida Administrative Code. As indicated by the WRM water quality findings above, the project will not generally violate state surface water quality standards. See Rule 40 D-4.301(1)( c), Florida Administrative Code. The project will not generally cause adverse impact on surface or groundwater levels or flows. See Rule 40 D- 4.301(1)(d), Florida Administrative Code. Since the project is a run-of-the-river, it will not diminish the capability of a lake or other impoundment to fluctuate through the full range established for it under Chapter 40D-8, Florida Administrative Code. The project will not cause adverse environmental impacts, or adverse impacts to wetlands, fish, and wildlife or other natural resources. The project can be effectively operated and maintained. See Rule 40D-4.301(1)(g), Florida Administrative Code. The project is a slow speed, low maintenance facility. The design concept is well established and has been successfully used for many years. Possible adverse affects to public safety are discussed below. The project is consistent with the requirements of other public agencies. See Rule 40D-4.301(1)(i), Florida Administrative Code. Potential harm to water resources within the SWFWMD are discussed below. See Rule 40D-4.301(1)(j), Florida Administrative Code. The proposed project generally will not interfere with the legal rights of others. See Rule 40D-4.301(1)(k), Florida Administrative Code. The proposed project is not against public policy. See Rule 40D-4.301(1)(l), Florida Administrative Code. The project complies with the requirements contained in the Basis of Review. See Rule 40D-4.301(2), Florida Administrative Code. There is a dispute as to whether the project was within or at the edge of the 100-year flood plain. This dispute is related to how one interprets the rule as it relates to the millrace and the location of the facility which is under ground. In the conventional sense, the project is not in the flood plain. Further, the project is designed in such a way, that it is waterproof if it were topped with water. While in the past SWFWMD may have had concerns that the project might cause downstream flooding, SWFWMD currently has no such concerns, given the run-of-the-river status of the proposed project. The operation of the project will not cause downstream flooding. The DEP included in its intent to issue, conditions contained in the sublease between Hy Power and the DEP in order to ensure that the facility would remain run-of-the-river, would comply with the water control plan, and would otherwise comply with the terms of the sublease. The DEP has final control over water flow and can revoke the permit or otherwise take enforcement action against Hy Power if Hy Power fails to comply with the water control plan. GROUNDWATER IMPACTS Operation of the project will not cause groundwater contamination or otherwise have adverse groundwater impacts. Some concerns about groundwater during excavation of the construction site were raised. The conflicting evidence received regarding them is discussed below. An area of concern was the de-watering plan for the project. Everyone agrees there will be some water seepage into the construction site that will have to be pumped out. The parties disagree regarding the amount of water that will have to be removed. Their estimates of amount of water to be removed vary because their estimates of size and over-all depth of the site vary. Petitioners presented credible evidence that a potential exists for the construction site to have a large quantity of water because of its location between two sources of surface water (the By-Pass Channel and Barge Canal), because of the makeup of the subsurface, and because of the depth of the construction. Hy Power credibly represents that if excessive groundwater is found, it can address the adverse impacts through its de-watering plan that would have to be filed with FERC and DEP. The technology exists to address the de-watering of the project. Such plans are routinely considered by DEP after a construction permit is issued and before de-watering occurs. There is very little evidence of sinkhole activity in the project area, and the construction activities are not expected to cause any sinkhole activity. NOISE POLLUTION Mr. Bitter expressed concerns that FERC would require the facility to install a very loud siren that would result in sudden noise adverse to the well-being of neighbors. Mr. Bitter is unfamiliar with FERC siren requirements at run-of the-river hydroelectric facilities. In contrast, Mr. Volkin, who has substantial experience in this area, testified that the only alarm device that would be required would be for the protection of the workers during construction. The purpose of the alarm is to warn persons below a dam spillway of a change in the volume of water being let out of the impoundment. In the case of a run-of-the-river facility, the volume is near constant, changing only gradually. Therefore, even if a warning siren had to be installed its use would be limited to significant changes in flow or testing. This would not constitute a nuisance. Further, the facility is located in the vicinity of the Crystal River Nuclear Power Plant which has its own warning sirens. It would be prudent to make any warning devices required for this structure significantly different from those at the nuclear plant and to limit their use. DAM SAFETY AND FERC REVIEW In reviewing whether Hy Power’s applications complied with the relevant permitting criteria, the DEP took into consideration the review of the facility already performed by FERC. FERC will also be responsible for reviewing the project as it is being constructed. Mr. Edwards also raised concerns about the structural stability of the By-Pass Dam itself. This has been a subject of concern by those responsible for the dam, and a survey of the structure was conducted in 1993, referred to as the Greiner Report. The Greiner Report identified specific maintenance problems that have been and are being addressed by the DEP. However, DEP’s maintenance plan does not address specifically the possibility that the weight of the dam over time has caused some shifting in the dam. Hy Power has only a few core borings and only one at the location of the generator. Hy Power is using the ACOE’s original borings, as confirmed by several new ones, to develop its preliminary plans. The DEP considered FERC and the ACOE as responsible agencies for determining the structural integrity of the dam. DEP has taken FERC’s review of this facility into consideration as part of DEP’s own permitting review. It is normal for DEP to rely on outside sources and agencies for assistance in determining compliance with DEP permitting criteria such as public health and safety, and it is reasonable for DEP to do so in this instance. Most states do not have the full capability to evaluate dam safety, and so they rely on FERC and ACOE. On April 21, 1997, the project received a conduit exemption from FERC. The application process is illustrated in Hy Power Exhibit 11. Hy Power submitted to DEP detailed information about the dam, the associated structures and the proposed project which had been reviewed by FERC and the ACOE, the two agencies in the United States who are responsible for dam structure design, control, and administration. Included in the package was the Greiner Report and Hy Power’s review of it. FERC evaluated the project, the Inglis By-Pass Dam structure, and the proximity of the project to the Dam in relation to structural impact, upstream and downstream impacts, water quality, and environmental issues. Mr. Edwards raised concerns regarding the ability of the limestone bedrock to sustain additional construction in the area of proposed construction. This is a material issue in the controversy which impacts several aspects of the proposed construction. Mr. Edwards pointed out that the barge canal channel was constructed with the use of explosives that caused a fracturing of limestone bedrock. He pointed out that the steel panels, which Hy Power proposes to drive into the bedrock to construct the water retention structure necessary to excavate the hole into which the turbine and powerhouse would be placed, will further fracture this bedrock. This creates two potential dangers. It could permit water to move under and around the bottoms of the panels, potentially scouring the loosened material from the base of the panels and making them unstable and subject to failure. It could weaken the entire southern wing of the existing spillway dam. Mr. Edwards opined that this could result in catastrophic failure of the dam or the coffer dam. Such a failure would cause major destruction and loss of life to those persons living and working in and along the lower Withlacoochee River. Hy Power presented rebuttal evidence that it could and would, if necessary, inject concrete into the limestone to stabilize it and avoid the concerns raised by Mr. Edwards. FERC specifically evaluated concerns raised by project opponents over the poor physical condition of the By-Pass Channel Spillway structures, relying particularly on the 1993 Greiner Report. FERC noted that the DEP had entered into a contract to correct any deficiencies listed in the Greiner Report, which "did not conclude that the deficiencies at the By-Pass Spillway threaten downstream life and property." The FERC review concluded that the dam was safe. To ensure safety, FERC is requiring that Hy Power do a complete stability analysis of the dam prior to any construction. Articles 301 and 302 of the FERC exemption ensure that all final drawings and specifications be submitted to FERC prior to construction, along with a supporting design report consistent with FERC’s Engineering Guidelines; that FERC can require changes to assure a safe and adequate project; and that Hy Power must also submit approved coffer dam construction drawings and specifications at least 30 days prior to starting construction. FERC has its own engineering staff who will go to the site and do their own analysis, along with the ACOE, of the dam and structures, prior to any construction commencing. This is a detailed design review evaluation so that the latest information on the dam will be made known immediately prior to construction, and will prevent any catastrophic event from happening. Under FERC procedures, FERC requires the applicant to obtain the DEP permits prior to requiring applicant to submit more detailed construction designs for FERC's consideration. These more detailed designs in turn will be subject to further review by DEP and FERC. It is assumed that Hy Power will comply with the post- permitting procedures and requirements, and will present complete, detailed construction drawings for FREC and DEP approval. Hy Power’s failure to complete the process would result in denial of a construction permit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the DEP enter a Final Order that issues the two permits challenged in this proceedings, WRM Permit No. 38-237096-3.001 and MSSW Permit No. 38-0129249-002, subject to the conditions contained in the Intents to Issue in the respective WRM and MSSW Permits and as described in the Recommended Order. DONE AND ENTERED this 2nd day of March, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2000. COPIES FURNISHED: Daniel H. Thompson, Esquire Berger Davis & Singerman 215 South Monroe Street, Suite 705 Tallahassee, Florida 32301 Andrew Zodrow, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 John S. Clardy, III, Esquire Crider Law Firm Plantation Point 521 West Fort Island Trail, Suite A Crystal River, Florida 34429 Teri Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Bernard M. Campbell Bessie H. Campbell 245 Palm Street Post Office Box 159 Inglis, Florida 34449 Sarah E. Berger Post Office Box 83 Inglis, Florida 34449
The Issue The issue is whether Petitioner is entitled to an environmental resource permit for a surface water management system and the alteration of a wetland in connection with the construction of two warehouses, paved parking and loading areas, a detention pond, and enhancement of the remainder of the existing wetland. If not otherwise entitled to the permit, an additional issue is whether Petitioner is entitled to the permit through an exemption, waiver, or variance from the standard requirements for mitigation.
Findings Of Fact Background Petitioner Carlos M. Beruff, as Trustee under Florida Land Trust No. 22 dated March 30, 1989 (Petitioner), purchased 85 acres of land in Manatee County for $1.2 million in May 1989. (All acreages are approximate.) The east boundary of the 85-acre parcel consists of about 1700 feet of frontage along U.S. Route 301. One month after the purchase, Petitioner sold 70 of the 85 acres for $1.6 million. In the intervening month, Petitioner incurred no significant expenses for development or marketing, although the development and marketing expertise of Carlos Beruff facilitated the $1.6 million sale. The 70 acres that were sold included the frontage on U.S. Route 301. The 15 acres remaining after the sale comprise two tracts of 9 and 5.88 acres. In these cases, Petitioner seeks an environmental resource permit (ERP) for activities involving the 5.88-acre parcel (Site). The 9-acre parcel occupies the northwest corner of the 85-acre parcel. The Site, which was platted in 1911, is the only noncontiguous land constituting the 85-acre parcel; it is 450 feet south of the remainder of the 85-acre parcel. The sole parcel between the Site and the remainder of the 85- acre parcel was originally owned by Lowe's and is now owned by Cheetah Technologies (Cheetah Parcel). The 5.88-acre Site is subject to a road right-of-way of 0.32 acres in favor of the Cheetah Parcel. Of the remaining 5.56 acres, 4.66 acres are wetland and 0.9 acres are upland. The 0.9 acres of upland are subject to an access easement of 0.42 acres, also in favor of the Cheetah Parcel, so the net available upland acreage is only 0.48 acres. The Cheetah Parcel occupies the northwest corner of U.S. Route 301 and Saunders Road (also known as 63rd Avenue East). The Site is immediately west and south of the Cheetah Parcel and occupies the northeast corner of Saunders Road and 24th Street East (also known as Arlin Road). The Site is about 530 feet west of the intersection of U.S. Route 301 and Saunders Road. U.S. Route 301 is a major arterial, and Saunders Road is at least a major collector road. The Site contains about 600 feet of frontage along Saunders Road and 465 feet of frontage along 24th Street East. The Site is in unincorporated Manatee County roughly midway between downtown Bradenton and downtown Sarasota. Saunders Road crosses a north-south railroad line approximately one-half mile west of the Site and Bowlees Creek about 650 feet west of the railroad track. The 9-acre parcel still owned by Petitioner is about 350 feet north-south by 1250 feet east-west. The western boundary of the 9-acre parcel runs along the east side of the railroad line. Like the other parcels involved in this case, the 9-acre parcel drains into Bowlees Creek. The Site is in an area characterized by industrial land uses, including warehouses, a junkyard, an industrial center, and a bakery. A halfway house for persons recently released from prison is located one-quarter mile to the west of the Site. The Site is zoned HM (heavy manufacturing), which is a limited, and thus valuable, zoning category in Manatee County. Respondent has issued three relatively recent surface water management permits that are relevant to these cases: a 1986 permit for the development of the Cheetah Parcel (Cheetah Permit), a 1988 permit for the widening of Saunders Road from two to four lanes (Saunders Road Permit), and a 1989 permit for the construction of a commercial park north of the Site known as 301 Park of Commerce (301 Permit). Bowlees Creek runs from north to south, emptying into Sarasota Bay across from Longboat Key. Sarasota Bay is an Outstanding Florida Water. Bowlees Creek drains a nine square-mile basin, which is about 21-25 percent developed. The Bowlees Creek basin is an open drainage basin. Due to flooding problems, Manatee County has imposed special limitations upon development within the Bowlees Creek basin. Among these limitations is that the rate of post- development runoff must be less than the rate of pre- development runoff--up to 50 percent less, according to expert witnesses for both sides (Lawrence Weber, Tr. Vol. III, pp. 118-19; and Daryl Flatt, Tr. Vol. IV, p. 230). By stipulation, the Site is at the extreme eastern end of the Bowlees Creek basin. In fact, the Site may have historically drained into Bowlees Creek and will drain into Bowlees Creek after, as described below, the northwest window is added to the surface water management system. In 1993 or 1994, Petitioner began the process of developing the Site following the sale five years earlier of the larger 70-acre parcel. Mr. Beruff has been in the development business for 20 years. His career began in 1980 when Mr. Beruff became an employee for U.S. Homes and Modern Builders; he became self-employed in 1984. Mr. Beruff has developed seven commercial and ten residential developments. Application Process Deciding to pursue warehouse development for the Site, Petitioner initiated the development process by hiring an engineer and environmental consultant. With the assistance of these consultants, Petitioner prepared its application for an ERP. By application dated October 9, 1998, and filed November 13, 1998, Petitioner requested that Respondent issue an individual ERP for the construction on the Site of a surface water management system in connection with the construction of two warehouse buildings, paved parking and loading areas, and a detention pond, as well as the enhancement of the remainder of the existing wetland (Application). The Application states that the total building, parking, and loading areas would be 58,026 square feet and that wetlands constitute 3.37 acres of the 5.88-acre Site. The site plan attached to the Application shows a "wetland preservation & enhancement" area of 1.592 acres at the north end of the Site. To the south, toward Saunders Road, are two buildings with paved parking and loading areas. On the southwest corner is a "stormwater treatment & attenuation" area. After several discussions with Respondent's staff, Petitioner modified the proposed development. In its latest revision, the footprint of the proposed development would occupy 2.834 acres of wetland, leaving 1.826 acres of wetland. On November 13, 1998, Petitioner filed a Petition for Exemption, Waiver or Variance as to Mitigation Requirements, seeking an exemption, waiver, or variance from all laws requiring offsite mitigation or additional onsite mitigation for the portion of the wetland that would be destroyed by the proposed development. Drainage At present, the Site receives runoff from a total of 27 acres. The offsite contributors of runoff are the Cheetah Parcel and a segment of Saunders Road east of 21st Street East. These locations have drained into the Site for hundreds of years. In general, drainage raises two distinct issues: water quality and water quantity. For an open drainage basin, the issue of water quantity expresses itself primarily in runoff discharge rate, although historic basin storage is also an issue. As discussed in the Conclusions of Law, the Respondent's Basis of Review identifies different storm events to which applicants must design different components of surface water management systems. For water quantity, the system may release no more than the permitted discharge rate in the design storm, which is the 25-year, 24-hour storm event. At present, the design storm would produce about eight inches of rain, although the same design storm, due to a different model or modeling assumptions, produced 9.5 inches of rain at the time of the issuance of the permit for the Cheetah Parcel. (The practical effect of this change in the calculation of the design storm is that the quantitative capacity of the surface water management system of the Cheetah Parcel is nearly 20 percent greater than would be required today.) For water quality, the system must capture the first inch of runoff (sometimes only the first half-inch of runoff, depending on the type of system and receiving waterbody). In contrast to the relatively infrequent 25-year storm, approximately 90 percent of the storms in Respondent's jurisdiction produce no more than one inch of runoff. The underlying premise is that the first inch of runoff contains nearly all of the contaminants that will be flushed from impervious surfaces. The Cheetah surface water management system features a wetland and a retention pond along the north property line of the Site. The Cheetah pond and wetland attenuate runoff before allowing it to drain south onto the Site. The Cheetah surface water management system also includes a swale running north along 24th Street East to take runoff eventually to Bowlees Creek. The Saunders Road surface water management system discharging onto the Site consists largely of an underground, offline storage and attenuation system that stores excess runoff, as compared to pre-development rates, in lateral pipes off a weir. Nothing in the record suggests that the surface water management systems authorized by the Cheetah Permit or the Saunders Road Permit fail to provide reasonable assurance that the discharged runoff is of satisfactory water quality. Following their respective permits in 1986 and 1988, respectively, the rates of discharge of runoff from the Cheetah Parcel and Saunders Road were no greater post- development than they had been pre-development. The Cheetah Parcel post-development and pre-development discharge rates were both 10.6 cubic feet per second (cfs). The Saunders Road post-development and pre-development discharge rates were both 32.4 cfs. In issuing the 301 Permit, Respondent authorized the construction of a drainage system that would take runoff north along 24th Street East and then west, eventually emptying into Bowlees Creek. Conforming to the previous drainage system, the new system replaced an open ditch with underground stormwater pipes. Of particular relevance to the Site, two prominent features of the system authorized by the 301 Permit were windows in the vicinity of the southwest and northwest corners of the Site (Southwest Window and Northwest Window). A window is an opening in the wall of a hardened structure whose purpose includes drainage. The opening is constructed at a certain elevation and a certain size to allow specified volumes or rates of water to pass into the structure and then offsite. The 301 Permit authorized the construction of a swale along the southwest corner of the Site to direct runoff discharging from the Saunders Road system into the Southwest Window. This swale has been construed. However, several problems have precluded the construction of the Southwest Window, probably permanently. The most serious problem, from an engineering perspective, is the failure to lay the stormwater pipe along 24th Street East at the proper depth. The stormwater pipe was erroneously installed at an elevation of 15.32 feet National Geodetic Vertical Datum (NGVD), and the Southwest Window was to have been cut at a control elevation of 14.75 feet NGVD. The discharge elevation of the Saunders Road outlet precludes raising the control elevation of the Southwest Window sufficiently to allow gravity drainage into the stormwater pipe. Exacerbating the discrepancy among the as-built elevations of the three structures is what appears to be a design problem belatedly recognized by Respondent. Respondent is justifiably concerned that the Southwest Window, at a control elevation of 14.75 feet NGVD, would draw down the water elevation of the Site's wetland, which is at a wet season elevation of 16.5 feet NGVD (now actually 17 feet NGVD, possibly due to the absence of the Southwest Window). A third problem with the Southwest Window is that the southwest corner of the Site was not historically a point of discharge, so the Southwest Window would deprive the Site's wetland of runoff. Fortunately, neither the Southwest nor the Northwest Window is essential for the proper operation of the surface water management system of 301 Park of Commerce, which largely depends on a series of lakes for treatment and attenuation. The Northwest Window was to be at elevation 16.5 feet NGVD, and its construction would provide needed drainage for the Site. In general, the Northwest Window does not raise the same concerns as does the Southwest Window. The Northwest Window is in the vicinity of the historic point of discharge for the Site and replaces a ditch permitted for the Cheetah Parcel to take runoff north along 24th Street East. The Northwest Window would also alleviate a standing-water problem at the northwest corner of the Site. However, Manatee County, which controls the right- of-way on which the Northwest Window is located and is responsible for its construction and maintenance, has discovered that it lacks a sufficient property interest to access the Northwest Window. The County has since initiated the process by which it can obtain the necessary interest, and, once completed, the County will cut the Northwest Window into the existing structure. Due to the role of the Northwest Window in draining the runoff in the area, including the Site, the Application reincorporates the Northwest Window, as it should have been constructed pursuant to the 301 Permit. Although the Cheetah and Saunders Road permits resulted in greater runoff volume entering the Site, more importantly to area drainage, these permits did not result in greater runoff rates and or in a deterioration in runoff water quality. Likewise, the failure to construct the Southwest Window and Northwest Window is not especially relevant to area drainage, nor is the likely inability ever to construct the Southwest Window. Far more important to area drainage is the fact that Petitioner proposes that the Site, post-development, would produce a runoff rate of 10.6 cfs, as compared to a pre-development runoff rate of 7 cfs. A serious adverse impact to area drainage, the proposed activity increases the runoff rate by 50 percent in a floodprone, 80-percent builtout basin--a basin of such sensitivity that Manatee County is imposing a post-development requirement of substantially reduced runoff rates. The cumulative impacts of the proposed development, together with existing developments, would be to cause substantial flooding of the Bowlees Creek basin. Petitioner's expert attempted to show that the runoff from the Site, which is at the extreme eastern end of the Bowlees Creek basin, would be delayed sufficiently so as not to exacerbate flooding. Respondent's expert thoroughly discredited this testimony due, among other things, to its reliance upon obsolete data and an unrealistic limitation upon the assumption of the direction of travel of storms. Similarly, Petitioner failed to prove that the authorized discharge rate for the 301 Permit is 42 cfs. This assertion is most succinctly, though not exclusively, rebutted by the fact that the 42-inch pipe can only accommodate 18 cfs. Even if the 42-inch pipe could accommodate a substantially greater runoff rate, Petitioner's expert would have erroneously inferred a permitted discharge rate from this increased capacity without negating the possibility that other structures in the 301 surface water management system effectively reduced the rate or that oversized structures existed to accommodate higher runoff rates in storms greater than the design storm. In addition to increasing the runoff rate by 50 percent, Petitioner's proposal would also reduce the historic basin storage by over 40 percent. Displaced basin storage moves downstream, increasing flood levels from fixed storm events. At present, the Site provides 8.68 acre-feet of historic basin storage. The Application proposes to replace this storage with storage in the wetland and retention pond totaling only 4.9 acre-feet. The loss of 3.8 acre-feet of basin storage means that this additional volume of water would, post-development, travel down Bowlees Creek. A final drainage deficiency in Petitioner's proposal arises out of a berm's proposed outside of the Northwest Window. A one-foot bust in the survey of Petitioner's expert would have resulted in this berm preventing runoff from entering the Site from the Cheetah Parcel, as runoff presently does. Respondent's expert suggested several possible alternatives that might result in a permittable project with respect to post-development runoff rates (the record is silent as to the effect of these alternatives upon historic basin storage, although it would seem that they would add storage). Reducing the area of destroyed wetlands to one acre would probably reduce the excess of post-development runoff rate to 1-2 cfs. Petitioner could then obtain offsetting attenuation through a variety of means, such as by obtaining an easement to use the wetland on the Cheetah Parcel, constructing an attenuation pond on the 9-acre parcel, or constructing underground vaults in the filled area of the wetland on the Site. Wetlands Except for the road right-of-way, the Site is undeveloped and forested. The presence of 25-year-old red maples militates against attributing the transition from an herbaceous to a forested wetland to the failure to install the Northwest and Southwest windows. More likely, this transition to the sub-climax species of red maple and willow (in the absence of a cypress source) is due to the repression of fire on the Site. Experts for the opposing sides differed sharply in their biological assessments of the wetland. Petitioner's expert described a stressed wetland whose impenetrable thicket provided habitat only to a lone rat and swarm of mosquitoes. Respondent's expert described a robust wetland featuring a luxuriant overstory of red maple and Carolina willow; an rich understory of ferns, and diverse wildlife ranging from birds in the air (direct evidence); fish, snails, and tadpoles in a small pond (direct evidence); and squirrel and opossum (indirect evidence) scampering (indirect evidence) among the buttonbush, elderberry, and wax myrtle (direct evidence). Undoubtedly, the wetland has been stressed; approximately 30 percent of the wetland vegetation is Brazilian pepper, which is a nuisance exotic. However, the wetland is well hydrated. Issuance of the Cheetah Permit was predicated, in part, upon the rehydration of the wetland on the Site. With the issuance of the Cheetah Permit and especially the Saunders Road Permit, the quality of water entering the wetland has improved by a considerable amount. As already noted, added volumes of runoff are entering the wetland since the issuance of these two permits, although post-development runoff rates are the same as pre-development runoff rates. On balance, the wetland is functioning well in providing habitat and natural drainage functions. Giving due weight to the current condition of the wetland, the enhancement offered by Petitioner does not approach offsetting the loss of wetland area. In return for destroying 2.83 acres of the wetland, Petitioner proposed the enhancement of the remaining 1.83 acres by removing exotic species to no more than 10 percent of the total vegetation. The mitigation is plainly insufficient because of the level of functioning of the entire wetland at present. Additionally, Petitioner has failed to demonstrate that the Brazilian pepper, which is the major nuisance exotic occupying the Site, is evenly distributed; to the contrary, it is present mostly outside the wetland, along a berm just outside of the wetland. The lack of seedlings and old specimens suggests that the Brazilian pepper population may not be stable and may itself be stressed. Petitioner's failure to show that the remaining wetland area has more than 10 percent infestation or is likely to suffer additional infestation further undermines the effectiveness of the proposed mitigation. Respondent has never issued an ERP for a proposed activity involving the alteration of wetlands when the enhancement mitigation ratio is as low as .65:1, as Petitioner proposes. In general, Respondent requires higher mitigation ratios when proposals involve wetlands enhancement, rather than wetlands creation, because the wetlands to be enhanced are already functioning--in these cases, at a relatively high level. Although Petitioner has been unwilling to consider such alternatives, numerous alternatives exist for offsite mitigation or mitigation banking, if insufficient area exists for adequate onsite mitigation. Lastly, Petitioner devoted considerable effort at hearing to portraying Respondent's handling of the Application as flawed and unfair. However, the evidence does not support these assertions. Most strikingly, Respondent's staff treated the drainage windows inconsistently, to the benefit of Petitioner. They treated the Northwest Window as installed for the purpose of calculating the pre-development runoff discharge rate to Bowlees Creek. Until the Northwest Window is installed, the actual rate is even lower. This approach is justifiable because the Northwest Window will be installed at some point. On the other hand, Respondent's staff ignored the higher wetland elevation on the Site, presumably resulting from the absence of the Southwest Window. However, this approach, which benefits Petitioner in calculating wetland drawdown effects, is unjustifiable because the Southwest Window probably will never be installed. Petitioner's specific complaints of unfair treatment are unfounded. For example, Petitioner suggested that Respondent credited Lowe's with wetland acreage for the littoral shelf of its wetland, but did not do so with the wetland on the Site. However, Petitioner produced no evidence of similar slopes between the two shelves, without which comparability of biological function is impossible. Additionally, Petitioner ignored the possibility that, in the intervening 14 years, Respondent may have refined its approach to wetland mitigation. Although occurring at hearing, rather than in the application-review process, Respondent's willingness to enter into the stipulation that the Site presently drains into Bowlees Creek, despite recent data stating otherwise, was eminently fair to Petitioner. Absent this stipulation, Respondent would have been left with the formidable prospect of providing reasonable assurance concerning drainage into the floodprone Bowlees Creek when the post-development rate was 10.6 cfs and the pre-development rate was 0 cfs.
Recommendation Based on the foregoing, it is RECOMMENDED that Respondent deny Petitioner's application for an environmental resource permit and for an exemption, variance, or waiver. DONE AND ENTERED this 29th day of February, 2000, in Tallahassee, Leon County, Florida. ___________________________________ ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of February, 2000. COPIES FURNISHED: S. W. Moore Tracey B. Starrett Brigham. Moore, Gaylord, Schuster, Merlin & Tobin, LLP 100 Wallace Avenue, Suite 310 Sarasota, Florida 34237-6043 Mark F. Lapp Jack R. Pepper Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609 E. D. "Sonny" Vergara Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
Findings Of Fact On November 1, 1982, Respondent Janson filed a Joint Application for a dredge and fill permit from Respondent, Department of Environmental Regulation, and from the Department of the Army Corps of Engineers. The project described in that application involved the construction of an approximately 1,000-square- foot, pile-supported residence, landward of the mean high water line but within the landward extent of Robinson Creek in St. Johns County, Florida. The proposed project also involved the placement of approximately 35 cubic yards of fill and a 30-foot culvert within a small (approximately 4-foot), tidally- influenced roadside ditch for driveway access and parking. The original application sought permission to place part of a concrete driveway and tool shed within the landward extent of Robinson Creek. The project is to be constructed on Lot 47, J.A. Lew Subdivision. Respondent Janson owns Lot 47, as well as Lots 45 and 46, which lots are north of and adjoining Lot 47 and also adjoining Robinson Creek. The next adjoining property owner to the north is the City of St. Augustine, Florida, which presumably owns the street. The adjoining property owner to the south of Lot 47 is Virginia P. Melichar. Neither Melichar nor the City objected to the Department's approval of the dredge and fill permit application. In support of his application, Janson retained the services of a registered surveyor and civil engineer, who performed a survey on Lot 47 to determine the location of the mean high water line with reference to the proposed project. That expert determined the location of the mean high water line to be at elevation 2.4 feet. Accordingly, all work contemplated by the dredge and fill permit is upland from the mean high water line. T.J. Deuerling, an environmental specialist for Respondent, Department of Environmental Regulation, visited the project site on December 13, 1982 and on December 30, 1982 in order to prepare the Department's Biological and Water Quality Assessment. As a result of those site visits, Deuerling recommended to Respondent Janson that he modify his permit application by moving the concrete slab and tool shed from the marsh area onto the uplands. Janson did so revise his application. In spite of the name of the permit being sought by Respondent Janson, the project involves no dredging. However, the culvert and its attendant fill would be placed in the man-made roadside ditch. That ditch constitutes a very weak transitional marsh. Although the culvert will eliminate some vegetation within that ditch, the effect of the elimination will be insignificant on water quality. The pilings for the pile-supported residence will also eliminate a small area of marsh. The anticipated shading caused by the pile-supported residence may impact somewhat on the vegetation in a small area below the residence; however, due to the fact that the floor of the house will be eight feet above the ground, light will still be able to penetrate. Therefore, the vegetation below the pile-supported residence will continue to act as a filter for pollutants. Janson has mitigated the small loss in wetlands by modifying his project so as to remove the concrete slab and tool shed from the marsh area to the uplands. Due to the project's small size, no storm water impact can be expected. Additionally, no evidence was introduced to show a violation of any water quality standard as a result of the proposed project. On March 16, 1983, Respondent, Department of Environmental Regulation, executed its Intent to Issue the dredge and fill permit in accordance with the revised application and subject to the conditions that: (1) turbidity curtains be employed in the ditch during the placement of fill over the culvert to contain any turbidity generated, and (2) construction on the uplands be confined to periods of normal water level conditions. On July 5, 1983, the Department of the Army Corps of Engineers issued its Permit and Notice of Authorization. The essence of the testimony presented by the Petitioners, including that of the employees of the St. Johns River Water Management District, who testified in opposition to the proposed project, is that even though Janson's proposed project would not impact water quality in a way that was either significant or measurable (although no one even suggested any specific water quality standard that might be violated), approval of Janson's permit might set a precedent for other projects which might then have a cumulative impact in some unspecified way at some unspecified location. No evidence was offered to show that Respondent, Department of Environmental Regulation's review of permit applications is other than site specific. Further, no evidence was introduced to show any proposed project anywhere having any impact with which Janson's project could be cumulative. Petitioners Sandquist and Shuler live in the neighborhood of the proposed project, perhaps as close as two blocks away.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing with prejudice the petition filed herein as to each individual Petitioner and issuing a dredge and fill permit to Respondent Janson in accordance with his revised application. DONE and RECOMMENDED this 13th day of January, 1984, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1984. COPIES FURNISHED: Stormy Sandquist 3 Aviles Street St. Augustine, FL 32084 Marion C. Snider Volla F. Snider 79 Fullerwood Drive St. Augustine, FL 32084 Carmen Ashton 51 East Park Avenue St. Augustine, FL 32084 Reuben D. Sitton Gail P.Sitton 35 Seminole Drive St. Augustine, FL 32084 Sandra N. Shuler 22 East Park Avenue St. Augustine, FL 32084 Patty Severt Greg Severt 1 Fern Street St. Augustine, FL 32084 Nancy Moore Paul Moore, Jr. 6 Fern Street St. Augustine, FL 32084 John D. Bailey, Jr., Esq. P.O. Box 170 St. Augustine, FL 32085-0170 Charles G. Stephens, Esq. Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301
Findings Of Fact By application filed on September 9, 1980, Respondent/Applicant, John H. Land Builders, Inc., sought a permit from Respondent, Department of Environmental Regulation (DER), to conduct dredge and fill activities in an approximate one acre area located in the southeast corner of a proposed housing development in Section 10, Township 29 South, Range 19 East, in Hillsborough County, Florida. A copy of this permit application may be found as DER Composite Exhibit B. Specifically, Land sought to excavate 4,100 cubic yards of material (muck) and to backfill the area with 14,400 cubic yards of granular material from adjacent uplands to allow for development of a street and building lots in an unnamed wetland. A permit from DER is required because the project involves a wetland that is contiguous with a ditch that connects to the Palm River, all of which constitute waters of the State that are subject to dredge and fill permitting requirements. The plans have been reviewed by other state and local authorities in the Hillsborough County area, and no adverse comments have been received. After the installation is completed, the elevation of the land will be raised, and will permit five homesites to be built on the land as well as the construction of an access road to the property from an adjacent street. The installation in question is but a small part of a larger proposed housing development known as Timberlake Subdivision that will ultimately involve more than 300 homesites. However, no further dredge and fill activities under DER jurisdiction will be undertaken. The proposal of Respondent/Applicant was received by the Department and certain timely additional requests were made from the Department to the Applicant to provide information necessary to evaluate the request for permit. Applicant subsequently furnished the required information, and it may be found in DER Exhibit C. The Department performed a field inspection and review of the dredge and fill site, including the surrounding areas, to assess the impact of water quality caused by proposed dredging and filling activities in wetlands areas. It concluded that the Applicant had affirmatively provided reasonable assurance to the Department that the short-term and long-term effects of the activity would not result in violations of the water quality criteria, standards, requirements and provisions of Chapter 17-3, Florida Administrative Code. A copy of the permit application appraisal may be found in DER Exhibit A. On January 21, 1981, DER issued its Intent to Issue a dredge and fill/water quality certification with certain conditions therein, including the requirement that future development be dependent upon separate stormwater review by the Department (DER Exhibit D). On October 20, 1980, Applicant filed a Notice of Stormwater Discharge with the Department's Southwest District Office in Tampa (DER Composite Exhibits B & F). Thereafter, the Department conducted a field inspection and review of the proposed housing development and surrounding areas to determine whether the proposed stormwater discharge would have a significant impact on water quality. Based upon the results of that inspection, which concluded that the proposed discharge would not have a significant impact on the waters of this State, the Department issued Applicant a stormwater exemption on November 7, 1980. The project site is located in an unnamed wetlands area. It is weedy and has a dense cover of primrose willow (Ludwigia peruviana), willow (Salix caroliniana), cattail (Typha sp.), red maple (Ace rubrum) and is overgrown with grapes vines (Vitus rotendifolia). It lies just to the north of a series of fish farms owned by Petitioner, Penisular Fisheries, Inc. Other commercial industries and single family dwellings are found south of the proposed activities. To the west and northwest lie marshlands, two old borrow pits, and Interstate Highway 4. Water runoff from the dredge and fill area will flow to the storm drainage system in the proposed street, and from there to a designated retention pond. Because there will be minor contaminants in the runoff, the water will be retained for treatment for a period of five days, which exceeds the 100 hour retention period required by DER. After treatment, the runoff will flow into a well-defined county drainage ditch west of 58th Street, travel down the ditch which lies adjacent to the fish ponds, and then meander into the existing marshland. Water runoff from the remainder of the project (excluding the dredge and fill area) will drain into the two existing borrow pit lakes which lie close to Interstate Highway 4. The designated retention pond will be located west of the project and has a controlled spill-off elevation. It will provide sufficient treatment to and cleaning of the water to insure that no violation of water quality standards will occur. A stormwater system to be constructed by Applicant will actually reduce the volume of water runoff now occurring. Reasonable assurances have been given that the short-term and long-term effects of the proposed activity will not result in violations of the water quality criteria, standards, requirements and provisions of the Florida Administrative Code. Based upon Use location of the point of discharge of Land's proposed stormwater discharge, the volume and frequency of discharge for which the proposed facilities are designed, and the anticipated constituents of discharge, the proposal will not have a significant impact on the water quality of the waters of this State. Accordingly, the exemption from stormwater licensing requirements was properly issued by the Department. Water quality violations which were alleged to have existed in a ditch on property adjoining the properties of Land and Petitioners were the subject of a notice of violation issued to the owners of that property. However, no notice of violation was ever issued to Land. Further, the ditch is not a part of the installation proposed by Applicant for issuance of the dredge and fill permit. Petitioners' concern is that Applicant has not given reasonable assurance that water quality standards would not be violated by the stormwater discharge and that downstream waters might be contaminated by urban runoff from the project. In reaching that conclusion, Petitioners' expert relied on a review of certain materials submitted to him by Petitioner's counsel. He did not visit the project site, nor had he reviewed drainage plans or construction drawings for drainage improvements contemplated by the notice of stormwater discharge filed by Land.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent Department of Environmental Regulation grant the requested dredge and fill permit/water quality certification to Respondent/Applicant John H. Land Builders, Inc. It is further RECOMMENDED that the Respondent Department of Environmental Regulation enter a final order confirming the stormwater exemption issued by the Department to Respondent/Applicant on November 7, 1980. DONE and ENTERED this 27th day of April, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1981.
