The Issue The issue in this case is whether Florida Administrative Code Rule 40E-7.523(2)(c) is an invalid exercise of delegated legislative authority.*
Findings Of Fact The Parties 1. The District is a public corporation existing by virtue of Chapter 25270, Laws of Florida (1949), and operating pursuant to Chapter 373, Florida Statutes, and Title 40E-7, Florida Administrative Code, asa multipurpose water management district, with its principal office in West Palm Beach, Florida. 2. KRVSA is a Florida corporation whose members are substantially affected by the rule in question. 3. Phillip B. Griner is an individual who holds a Special Use License to use the Lower Reedy Creek Management Area/Rough Island Management Unit Protected Zone. He has been a member of KVSA since its inception in 1998 and was serving on its board of directors at the time of the final hearing.
Conclusions Based upon the foregoing Findings of Fact and Conclusions of Law, the Petition for Administrative Hearing is denied. DONE AND ORDERED this 19th day of December, 2003, in Tallahassee, Leon County, Florida. Pan ate J. LAWRENCE JOHNSTON 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 19th day of December, 2003.
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of appeal with Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. 31
Findings Of Fact Pal-Mar has filed application No. 29454 pursuant to Chapter 373, Florida Statutes, requesting approval for a surface water management system known as Phase III of Pal-Mar Water Management District, to serve approximately 3,600 acres of residential land in Martin County, Florida. The project discharges to C-44, the St. Lucie canal. SFWMD's staff report recommends approval be granted for the proposed water management system based on considerations of water quality, rates of discharge, environmental impact and flood protection. Approval is subject to certain conditions which are not material to the instant cause. As background material to the staff report, the staff makes reference to the U.S. Army Corps of Engineers report entitled "Survey-Review Report of Central and Southern Florida Flood Control Project, Martin County," dated September 22, 1967. The Corps of Engineers' report was not used in the decision-making process but rather was included in the staff report to provide a comprehensive overview. Whether the Corps of Engineers' plans were ever implemented would not affect the recommendations of the staff. The land in question is currently zoned "IZ" (interim zoning) according to Martin County's zoning regulations. In this category, if the neighborhood is predominantly one classification of usage, then the zoning director is to be governed by the regulations for that class of usage in determining the standard zoning regulations to be applied to the interim zoning district. If no trend of development has been established in the neighborhood, the minimum standards of the R2 single family zoning district are to be complied with. Rule 16K-4.035, Florida Administrative Code, entitled Basis of Review of Applications for Construction of Works, provides in Section (2) that all applications such as the instant one shall be reviewed in accordance with the provisions of the district's "Basis Of Review For Construction Of Surface Water Management Systems Serving Projects With Two Or More Acres Of Impervious Area Within The South Florida Water Management District - December, 1977." The Basis of Review provides in Part VI that before an application will be considered for the issuance of a permit, the proposed land use must be "compatible with the applicable zoning for the area." The evidence indicates that the land in question has a history of agricultural use. However, the evidence also discloses that far from being a trend towards agricultural use there is a trend away from it. A major portion of the neighboring lands will be devoted to Phases I, II, IV and V, of the Pal-Mar Water Management District. According to Florida Land Sales Board registrations, the land in question is subdivided into one-half acre, one acre, 1.4 acre and two acre lots. The average project density is one lot per acre. In addition, there is some mobile home usage within neighboring areas. If there is a trend, it is toward R2 zoning type usage. SFWMD's staff concluded that the proposed land use was compatible with the applicable zoning for the area. Martin County has failed to establish that such compatibility does not exist. In the Redraft of Order Permitting Change of Plan of Reclamation and Change of Name dated November 4, 1969, the Honorable C. Pfeiffer Trowbridge, Circuit Court Judge of the Nineteenth Judicial Circuit in and for Martin County, observes that the Petitioner in that case (herein Pal-Mar) "permanently and irrevocably withdrew its application to drain into the St. Lucie canal thereby removing all reasons for objections" to the proceedings in Circuit Court. However, there is no evidence to indicate that there exists a prohibition against drainage into the St. Lucie canal or that Judge Trowbridge's order is intended to preclude approval of Pal-Mar's present application.
The Issue Whether the Division of Administrative Hearings (DOAH) has jurisdiction to conduct a formal hearing under the provisions of Sections 120.569 and 120.57(1), Florida Statutes, if a Petition for Relief is referred to the DOAH for formal hearing based on a Notice of Determination: No Jurisdiction issued by the Florida Commission on Human Relations (FCHR).
Recommendation Based on the foregoing, it is RECOMMENDED that the FCHR resume jurisdiction of the matter and complete the investigation of the Charge of Discrimination, pursuant to Section 760.11(3), Florida Statutes, or permit Petitioner to make her election of remedies pursuant to Section 760.11(8), Florida Statutes. DONE AND ENTERED this 15th day of February, 2002, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 15th day of February, 2002. COPIES FURNISHED: William R. Amlong, Esquire Amlong & Amlong, P.A. 500 Northeast Fourth Street Second Floor Fort Lauderdale, Florida 33301-1154 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Keith C. Tischler, Esquire Powers, Quaschnick, et. al. 1669 Mahan Center Boulevard Post Office Box 12186 Tallahassee, Florida 32317-2186 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether permission should be granted to Petitioner, pursuant to Chapter 380, Florida Statutes, to develop land in Manatee County by phosphate mining operations, as set forth in the petition.
Findings Of Fact Estech General Chemicals Corporation (Estech) is a Delaware corporation. It was formerly Swift Agricultural Chemicals Corporation, but the corporate name was changed on August 1, 1979. The application was filed in the name of Swift Agricultural Chemicals Corporation, but Estech is the corporate successor to Swift's interests. (Stipulation) In 1965-66, Estech purchased approximately 10,393 acres of land in Manatee County as a potential phosphate mining site. Estech has been actively mining phosphate rock in Florida for over fifty years, and purchased the Manatee County property because large deposits of phosphate rock lie under the surface of land. Phosphate rock is a valuable mineral resource and is an ingredient in fertilizers. (Stipulation) The property is classified as a general agricultural district under the Manatee County Zoning Ordinance. Mining is authorized in such a district by "special exception" as provided in the ordinance. Additionally, Manatee County requires approval of a master mining plan for any mining operations. Such approval is granted through a two-step process. First, an applicant must obtain approval for a special exception, its master mining plan, and development of regional impact (DRI) Thereafter, the applicant must obtain an operating permit in the manner described in the zoning ordinance. Prior to granting a special exception, the County Planning Commission and Board of County Commissioners (Board) must find that the proposed use will be reasonably compatible with surrounding uses, and that any nuisance or hazardous feature involved is suitably separated and buffered from adjacent uses. The ordinance specifies detailed information to be contained in applications for exceptions, including a conceptual reclamation plan, reclamation bond, and evidence of financial responsibility after master plan approval and prior to issuance of any operating permit. It further provides for regular inspection of constructed facilities, reports, and compliance by the applicant with regulations as to matters such as dam construction, water withdrawals, water quality, and the like. Manatee County does not yet have a finally approved land use plan under the Comprehensive Planning Act of 1975, but a draft thereof is now pending before the Board. (Stipulation, testimony of Rile, Exhibit 20) In the past, Manatee County has granted other applications of special exceptions, DRI development orders and master mining plan approval for mining phosphate rock, subject to conditions and limitations, as follow; On January 28, 1974, the Board granted approval to Beker Phosphate Company for phosphate mining on approximately 10, 970 acres of land adjacent to Estech's southern and western borders. On December 27, 1977, the Board granted approval to W. R. Grace and Company for phosphate mining on approximately 5,050 acres of land adjacent to Estech's northern and eastern borders. By approving these applications, the Board has authorized phosphate mining by W. R. Grace and Beker on large tracts of land adjacent to Estech's property, subject to conditions and limitations. Additionally, on July 7, 1976, the Board granted approval to Phillips Petroleum Company for phosphate mining on approximately 6500 acres of land in southeastern Manatee County. On September 14, 1978, the approval was rescinded by an amended development order pending the submission of additional evidence and testimony at a new hearing. None of the above mining developments are currently conducting mining operations. (Stipulation) On August 3, 1977, before the approval of the W. R. Grace and Company mine, Estech filed an application with the Southwest Florida cater Management District for a consumptive use permit authorizing the use of water for mining operations. On September 6, 1978, the consumptive use permit was issued pursuant to Order No. 78-75 of the District Governing Board. (Stipulation, Exhibit 1) On May 5, 1978, Estech filed an application for special exception with Manatee County. A master mining plan and all required documents were also filed with the application. Review of the application was made by the staff of the County Planning Department which recommended development approval subject to certain conditions. (Stipulation, Exhibit 3, 6) On May 9, 1978, Estech filed a DRI application with the Tampa Day Regional Planning Council (TBRPC) and with Manatee County. On November 13, 1978, the governing board of the TBRPC held a public hearing to consider Estech's application for DRI approval. At the close of the hearing, the governing board of the TBRPC adopted the report recommending approval of Estech's application subject to conditions. (Stipulation, Exhibit 4-5, 6) On January 10 and 11, 1979, a public hearing was held jointly by the Board and the County Planning Commission on the various applications. The parties to the hearing were Estech, Manatee County, and Sarasota County who entered the proceeding as an intervenor. Also represented were Manatee County Planning and Development Board and the TBRPC. Notice of the hearing was provided to the public and the Department of Community Affairs (DCA). On February 22, 1979, the Manatee County Planning Commission unanimously adopted a Recommended Development Order recommending that the Board approve the development of regional impact, the master mining plan and special exception with conditions. (Stipulation, Exhibits 1-10) On August 9, 1979, the Board approved a motion denying the Estech special exception, and on August 16, the Board adopted a resolution denying the special exception, master mining and reclamation plan, and the application for development approval The stated reasons for denial cited the Nanatee County Zoning Ordinance and stated that (a) "the use contemplated by the development is not reasonably compatible with surrounding uses," and (b) "nuisances or hazardous features are involved in the development and same are not suitably separated and buffed from adjacent uses." The Board therefore determined, pursuant to Section 380.06(11), F.S., that: The development is not located in an area of critical state concern. The State of Florida has not adopted a land development plan applicable to this area. The development is not consistent with local land development regulations. The report and recommendations of the Tampa Bay Regional Planning Council on file in these proceedings recommended approval of the development subject to stated modifications and conditions and the development as described in the application and the presentations made in these proceedings is not consistent with the report and recommendations of said regional planning agency." (Stipulation, Hearing Officer's Exhibit 3) Estech presently operates the Watson and Silver City Mines in southwestern Polk County. The proposed project is to replace depletion of reserves in the 1980's from those mines. The lad in question is located in northeastern Manatee County in a rural agricultural area. Most of the acreage is now being utilized as grazing land for cattle. Approximately 78 percent of the total area is unimproved due to the low productivity of the soils. Most of the tract lies in the watershed of the Manatee River and is bisected by the river's north and east forks. The topography of the land is relatively flat, with over 5,000 acres of native range that was once long-leaf pine flatwoods. However, logging, grazing, and other influences have all but eliminated the pine over-story and impacted adversely on the under-story. The land has been over- grazed, reducing the extent of native forage species while encouraging the growth of wire grass and saw palmetto. About 18 percent of the tract is composed of various types of wetlands, such as swamp forest, marsh and grassy ponds, and an 18 acre cypress dome. The north and east forks of the Manatee River join about four miles southwest of the site, and drain into Lake Manatee approximately eight to ten miles downstream. Lake Manatee drains into the Manatee River and ultimately into the Gulf of Mexico. Lake Manatee is the primary potable water supply serving the majority of the population in Manatee County and a significant portion of Sarasota County. An earthen dam is located at the lake, and the Manatee County water treatment plant is also at that location. (Testimony of Cornwell, Zimmerman, Lincer, Exhibits 4, 6, 12, 39) The mining operation is planned to produce approximately three million tons of phosphate annually for a period of twenty-one years. About 6600 acres of the site are deemed mineable. Estech proposes to use equipment and design generally available and practiced by presently operating mines. The major components of operation are large walking draglines, hydrologic ore transportation via pipeline to a central washer, a feed preparation and flotation plant, wet rock storage and drying, and shipment via rail. Clay and sand wastes will be disposed of initially in separate areas, with subsequent mixing as backfill in reclamation. Two rock dryers are proposed for the facility to reduce moisture in the phosphate rock. A single 480 acre above- ground clay settling area is planned to receive clay wastes during the initial period of operation. The intended waste disposal plan will utilize a sand-clay mix which will be deposited in mining cuts. Water use is designed to divide the needed supply for operations between surface and ground water resources, and to provide for recharge of the Floridan Aquifer. A 200 acre surface water reservoir will be constructed for storage which will decrease ground water use. Reclamation will be accomplished by restructuring and filling of disturbed sites followed by revegetation. The end result is designed to provide improved pasture, marsh and wetland areas, a number of lakes, and a wilderness area. (Exhibits 4, 13, 11) a. In 1978, the Environmental Protection Agency evaluated various impacts of phosphate mining in central Florida, and made recommendations concerning methods of operations by the phosphate industry to minimize and mitigate any adverse impacts upon the region (Areawide EIS) . It was prepared to establish a basis for initiating site-specific environmental impact statements for new source mining in connection with issuance of national pollutant discharge elimination systems (NPDES) permits under the Federal Water Pollution Control Act (PL 92-500). Incident to Petitioner's application for such a permit, a draft environmental statement (Draft EIS) was issued on October 5, 1979. It had primarily been prepared by a third party contractual consultant, Conservation Consultants, Inc., upon the recommendation of Petitioner to the EPA. The consulting firm had previously done consulting work for Petitioner. However, no evidence was presented that the assessments accepted by the EPA in its provisional adoption of the studios contained in the Draft EIS were not impartial. Many of the evaluations of the proposed project which were the subject of testimony by Petitioner's witnesses were based in part upon studies and data contained in the Draft EIS. However, testimony by the individuals who had prepared such data was not presented at the hearing. The Draft EIS document was provisionally received in evidence. It is hereby determined that the document, although not authenticated as provided by Section 90.902(4), Florida Statutes, qualifies as an exception to the hearsay rule under Section 90.803(8) as a public record, and is received under Section 120.58(1)(a), Florida Statutes, as "evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs." The data compilations contained therein are considered prima facie correct, subject to challenge. Conclusions set forth therein, of course, are not factual matters, and merely are of some persuasive value. b. The Draft EIS for the Estech project made comparisons to the Area- wide EIS recommendations, and found that Estech's proposal deviated from the Area-wide EIS recommendations in two significant areas, i.e., construction of a rock drying facility and mining of a segment of the east fork of the Manatee River. The Draft EIS concluded that the proposed drying facility could be justified for various reasons and proposed to approve that portion of the project. However, the document agreed with the Area-wide EIS that mining should not be conducted in the east fork of the river. The EPA therefore proposed to issue the NPDES permit conditioned upon compliance by Estech with all recommendations contained in the Area-wide EIS except the one related to rock dryers. Based upon the EPA recommendation, Estech has acknowledged that it will not pursue its original intent to mine in the east fork. (Testimony of Davis, Exhibits 8, 11, 47) WATER HYDROLOGY a. The consumptive use permit issued to Petitioner by the Southwest Florida Water Management District (SWFWMD) on September 6, 1978, pursuant to Chapter 373, Florida Statutes, authorizes the average annual withdrawal of 12,960,000 gallons of water per day (gpd) for the purpose of mining and beneficiating approximately 3 million tons per year of phosphate rock. During the first three years after commencing mining operations, water withdrawal is to be from the Floridan Aquifer by means of four production wells and five standby production wells. Thereafter, Estech will divert from the east fork of the Manatee River as will fill or attempt to fill the storage basin to capacity, while maintaining minimal flows downstream. The permit requires Estech to construct a system of connector wells to recharge 3,024,000 gpd (average annual) from the unconfined surficial aquifer and/or secondary artesian aquifer to the Floridan Aquifer prior to the start of withdrawals. Other conditions attached to the permit require water quality analysis of water moving through the system of connector wells, monitoring welts, rainfall recording equipment, pumping tests, and consent from nearby property owners prior to dewatering of mining pits within 700 feet of the property, unless the water table will not be lowered more than three feet. Estech is also required, commencing with the fourth year of mining, and subject to availability of specified quantities of surface water, to (a) limit its ground water withdrawals so as not to lower the potentiometric surface of the aquifer more than five feet at its boundary, and (b) to limit its average annual net ground water withdrawals to 7 million gallons of water per day. SWFWMD found that issuance of the permit for the stated quantities of water will be of reasonable beneficial use as defined in Sections 373.019(5), F.S., consistent with the public interest, and will not interfere with any existing legal use of water. SWFWMD further reserves from use of water by Estech in such locations and quantities as it determines may be required for the protection of fish, wildlife, and the public health and safety. b. Estech has agreed that (a) to promote the maintenance of the 25- year flood plains, water stress caused by pit dewatering shall be limited to only one side of the flood plain at a time, and mining of the opposite side will be delayed until mined portions have been re-created to design elevations, when feasible, and ground water levels have recovered; (b) to construct surface recharge ditches as necessary to minimize ground water table stress adjacent to the flood plains; (c) to cause no disturbance or incompatible land use activity within any such flood plain except where unavoidable; (d) to insure no land use activity which would inhibit native vegetative growth for the flood plain during the mining period, and (e) to conduct a post-reclamation study as to final frequency elevations for the information of governmental agencies. If it is found that peak flows of any drainage basins have been increased over premining conditions, Estech will increase the retention capacity of the recreated land appropriately. After mining is completed, the storage reservoir and control structures will be dedicated by Estech to Manatee County if the county governing body deems the reservoir necessary to the operation of the Manatee County utility system. (Testimony of Davis, Exhibit 6,7,26,47, Stipulation) During normal mining operations, Estech's withdrawal of surface water under its consumptive use permit will reduce the flow into Lake Manatee by about 7.5 millions gallons per day (mgd) . The average annual flow of water into Lake Manatee is about 75 mgd. The Manatee County 4 Water Treatment Plant currently uses 25 mgd. During drought conditions, SWFWMD reserves the right to restrict withdrawals under the consumptive use permit. A "safe reservoir yield" means the available amount of water during the most severe drought conditions. The effect of Estech's withdrawals will reduce the Lake Manatee safe reservoir yield of 29 mgd by .75 million mgd. If the three proposed phosphate mines in the area, i.e., Estech, W. R. Grace, and Beker Phosphate Company, operate simultaneously in the future, it will reduce the flow into Lake Manatee by approximately 9.3 millions gallons per day. Estech's withdrawals of water will impact on the Lake Manatee reservoir only during periods of extreme drought at which time SWFWMD can declare a water shortage and direct cessation or restriction of withdrawals. (Testimony of Wissa, Zimmerman, Exhibit 7) WATER QUALITY a. Surface water quality on the Estech property is generally moderate to poor. It is highly enriched in nutrients, and moderate to poor in terms of color and dissolved oxygen. It is low in dissolved solids and slightly acidic. It had moderate levels of nitrogen, and high levels of iron and fluoride. Most streams on the property have soft water and meet most Class III standards. Water quality is considered "mediocre" from an ecological standpoint due to the low levels of dissolved oxygen. The water in Lake Manatee is similar to that found in the streams on the Estech property. It generally falls into Class IA standards for a potable water supply. The Manatee Water Treatment Plant removes the high color from the water during the process. Approximately 1.43 mgd of water will be discharged into the streams as a result of Estech's mining operations. This amount will constitute approximately one to three percent of the total amount of water flowing into Lake Manatee. Based on data from studies made of other milling operations conducted by Estech, mining discharges should not produce a significant change in the water quality of Lake Manatee. Although there will be an increase in dissolved solids and phosphorus, nitrogen will be decreased. Alkalinity will increase somewhat and this is considered to be beneficial to the Lake Manatee water supply since alkalinity levels in the lake currently are at times below recommended governmental criteria for drinking water. Use of flocculents in Estech's proposed sand-clay process will not adversely affect Lake Manatee water quality because the polymer substance will adsorb onto clay particles and other suspended matter. Polymers degrade over a period of time and the nitrogen in the polymer will not be available for plant growth in the lake. Although higher dissolved solids will cause an increase in hardness of the lake water, it will assist in removing the high color from the water during the treatment process. However, there will be some increase in treatment costs. In the opinion of water quality experts, the effluent discharged from Estech's property will be within the Federal NPDES standards and the state Class III water quality standards. There will be no cumulative impact by other mining operations in the area because Estech will be the only mine to discharge in the Manatee River or its tributaries. Surface water runoff from the site will not be significantly different than it is now, and it will be subject to applicable permit limitations. Deposits of clay in the initial settling area will form a relatively impervious liner and prevent leaching pollutants into ground water. Similar effects will result in the mined out pits which are reclaimed with the proposed sand-clay mixture. The flocculents used in this process will adhere to the clay particles, thus preventing entry into the ground water system. Monitoring of ground water quality will be required by applicable permits. (Testimony of Brezonik, Davis, Bromwell, Lincer, Zimmerman, Exhibits 4, 7, 11, 26-29, 31-34, 48, 57, supplemented by Exhibits 30, 35, 45) RADIATION a. The uranium and radium concentrations in overburden materials at the Estech site are slightly lower than those typically observed in central Florida. The depth of overburden at the site is double that normally found in the central Florida area. The phosphate ore matrix at the site contains about half the radioactivity found in the central Florida matrix. Four samples taken at the site show no evidence of a "leach" zone over the matrix, thus indicating that total radioactivity concentrations in reclaimed areas will be lower at the Estech site than has been experienced in other central Florida phosphate areas. Although ground radiation increases after reclamation, since most of the land area of Florida has extremely low levels of radioactivity in the soil compared to other areas in the nation, the increases in soil radium concentration in reclaimed areas at the site will bring the total gamma ray exposure rate up to approximately the average for the nation, and therefore is not significant in terms of human health. A higher radium concentration is expected in the initial clay settling area which will increase the surface exposure rate by approximately one-half of the rate in other reclaimed areas. Airborne radioactive particulate emissions from the site will consist of dust released from the rock dryers and "fugitive" dust caused by vehicular traffic and other disturbances of surface soil. Both are calculated to produce approximately the same amount of radiation exposure. The projected emissions from the rock dryers will produce a maximum dose of 5.8 millirems per year at the site boundary, as compared to the EPA standard for human health of 1500 millirems per year. The increase in exposure from both sources therefore is relatively insignificant from a human health standpoint. The radium 226 that would be added to surface soils by deposition from rock dryer emissions during the contemplated 21 years of mining activities' will increase the soil radioactivity concentration around the site from about 50 percent to less than 51 percent of the typical soils in the nation, and therefore such change would not be statistically measurable or significant. Existing concentrations of radium in surface waters at the Estech site are within the normal range of surface waters elsewhere in the nation. Mining activities will not cause any appreciable difference in radium concentrations in ground or surface waters. Although radium 226 concentrations in surface waters off-site may be elevated to some degree after reclamation, the final concentration will be much less than the EPA drinking water standard of 5 pico curies per liter. Radium concentrations in the soil of reclaimed lands will be in a normal range and not significantly different from those existing prior to mining operations. Therefore, such concentrations in food products grown in the soil and meat produced from animals who graze in the area, or in byproducts such as milk, will not be increased. Such concentrations could decrease because plants discriminate against the uptake of radium if sufficient calcium is available, as will be the case in areas reclaimed with the sand-clay mixture. Concentrations of radium in the initial clay settling area will be considerably larger than that of the other reclaimed areas and therefore will show similar increases in food products in that area. However, the concentrations should not exceed the EPA standard of 5 pico curies of radium per liter. Therefore, food products grown on the site after reclamation will present no significant radiological changes from normal dietary contributions. A preliminary study conducted in lakes located on reclaimed phosphate mining land in Polk County produced preliminary data to show that the accumulation of radiation in fish at those locations is greater than that found in fish at Lake Manatee. However, as heretofore found, the ore matrix at the Estech site contains only about half the radioactivity found in the matrix in other phosphate areas of Central Florida. Most likely, the amount of radiation found in fish in Lake Manatee will approximate the amount for fish in future lakes on the Estech site because phosphatic clays were removed to construct the lake dam and matrix is exposed at the lake bottom. The radioactivity levels found in the Lake Manatee fish are relatively low, and since radiation is concentrated in the bones which are seldom consumed, there would be no significant adverse health impacts to humans who ate fish from reclaimed lakes at Estech's site. Radioactive materials are absorbed to any clay particles which might be discharged during mining operations and normally are not "stripped" from such particles until it reaches a salt water body. The normal water treatment process used at the Manatee County Water Treatment Plant would remove most of such clays from the water and thus dilute any residual radioactivity concentrations. The reclaimed lands will have different radiological characteristics than the land before mining. These primarily are elevation of possible radiation exposure in any future residential structures and uptake of radionuclides into agricultural products. Some 68 percent of the land is expected to be improved pasture and a small amount will be used for citrus and row crops after the cessation of mining activities. The abundance of clay in the surface soil will produce a "discrimination" against uptake of radium by crops. The return or replacement of low activity top soil to reclaimed areas would substantially reduce potential radiation impacts. Estech does not plan to replace soil over reclaimed areas except on those where excessive radiation is found to be present. There is no state regulatory requirement for replacement of top soil in such areas at the present time. The final clay settling areas when returned to any land use will be most beneficially affected by returned top soil from the standpoint of residual radiation. However the return of top soil to all areas would present an excessively high cost-benefit ratio in general due to the relatively low degree of matrix radioactivity. In addition, since the advisability of replacement of top soil would depend on site specific data, in some instances return of the original soil could increase the uptake of radium in crops and make little or no difference in other radioactivity areas such as radon exposure in homes. Radon-222 flux from the soil surface will be increased due to the redistribution of radium-226 in the reclaimed lands. The elevation of outdoor airborne radon-226 will not be significant. Radon exposure consists of gas emerging from ground which contains radium during the process of radium decay. No problem is ordinarily presented unless such gas is in a confined area, such as migration to a poorly ventilated house. If inhaled, it can irradiate the bronchial lining and lead to possible health problems such as lung cancer. The only area at the Estech site where it is expected that radon levels will exceed EPA standards is the initial clay settling area. Accordingly, residential development should not be conducted on that reclaimed area after termination of mining activity. This area is presently planned to be used only for pasture purposes, and it is unlikely that it would ever be suitable for housing purposes due to lack of support of the residual ground structure. (Testimony of Morton (Exhibit 1), Shiager, Bromwell, Upchurch, Livingston, Gamble, Exhibits 4, 7, 11, 49, 52-53) Estech has agreed to establish an air monitoring program, to include monitoring for all sources of radiation associated with any of its emissions, including levels of radium 226. It also has agreed to provide a detailed radiological analysis of the reclaimed land to the Manatee County Health Department upon completion of reclamation. If an area has unacceptable radiation levels, Estech agrees to cover the area with lower value materials such as may be found in over-burden or sand tailings and clay by-products. (Testimony of Davis, Exhibit 47) AIR QUALITY a. Air quality considerations include emissions from Estech's proposed rock dryers and fugitive dust. The proposed dryer system consists of two fluidized bed rock dryers for drying phosphate rock, pebble and concentrate product, using number 6 fuel oil limited to one percent sulphur content. Control devices will consist of two wet venturiadsorber scrubber systems designed to remove 99.8 percent of particulate matter and 96.5 percent of sulphur dioxide from stack emissions. b. Computer "modeling", using conservative assumptions, predicts that emissions from the rock dryer pollution control systems will be in compliance with local, state, and federal regulations, as well as meet the requirement of a Best Available Control Technology (BACT) determination, and all other applicable air pollution regulations, including prevention of significant deterioration (psd) . On May 19, 1980, the Department of Environmental Regulation issued a construction permit for the two rock dryers to Estech pursuant to Chapter 403, Florida Statutes, and therein determined the proposed system was Best Available Control Technology. Conditions to the permit require that emissions tests be conducted for determination of compliance with applicable state air quality rules prior to application for an operating permit. (Testimony of Sholtes, Exhibits 1, 4, 7, 14, 43, 55) Computer modeling of fugitive emissions at the site created by road traffic and the like would result in approximately the same impact as emissions from the rock dryers. Cumulative emissions from existing and potential air pollution sources, including consideration of eight possible future rock dryers in the vicinity of Manatee County shows that there would be a very minor impact on the Manatee County area from an air quality standpoint. (Testimony of Sholtes, Exhibit 43) The 1978 EPA Area-wide Environmental Impact Statement for the Central Florida Phosphate Industry recommended that rock drying processing at beneficiation plants be eliminated and that wet rock be transported to chemical plants. The recommendation was based on consideration of greater allowable source emission rates than are now permitted by federal regulations. The EPA Draft Environmental Impact Statement prepared in connection with the Estech project pointed out this distinction, and concluded that the objective of the Area-wide EIS to protect air quality would be attained by the current system of air quality controls. The Draft EIS also found that use of the proposed rock dryers was dictated by market conditions which required the shipment of dry rock to chemical plants at other locations. Although Estech has an existing rock dryer at its Silver City Mine in Polk County, the facility there is older, less fuel efficient and does not meet current control criteria required of new facilities. Estech has reduced the originally contemplated amount of phosphate rock to be dried at the proposed facility from 3 million tons to 2,350,000 tons per year, due to the fact that it can now sell wet rock to various purchasers. (Testimony of Cape, Davis, Exhibits 8, 11) Although Sarasota County has concerns about the possible unavailability of one percent sulphur fuel in the future, Estech is limited to that sulphur content by DER permit conditions, as well as by Manatee County ordinance. (Testimony of Klier, Sholtes, Exhibits 55, 57) The quality of air in Manatee and Sarasota Counties currently is relatively good. The older, retired individuals who reside in Sarasota County greatly exceed the national average of that age category, with a much higher incidence of cancer and respiratory disease. Current governmental criteria for air quality greatly exceed present Sarasota County levels and do not measure certain pollutants such as fugitive dust and radionuclides. Radionuclides emitted as a result of phosphate mining recently have been added to the list of hazardous air pollutants under the Federal Clean Air Act. However, Federal Regulations have not been issued to establish standards for such emissions. (Testimony of Klier, Exhibits 44, 57) WASTE DISPOSAL a. The beneficiation of the phosphate ore will generate two solid waste products consisting of clay or "slimes" and sand "tailings." Traditionally, the two waste materials have been transported to separate disposal areas; i.e., clays have been impounded behind earthen dams constructed around natural ground or mined out areas, and sand tailings have been disposed of in mined out pits or, in some cases, in above-ground piles. Estech plans to use a somewhat new waste disposal technique by placing a sand-clay mixture in mined-out pits. In order to achieve a proper mixture, the clays will be treated with chemical flocculants to enhance their settling rate. The method will mix the sand and clay in the approximate ratio of 2.5 to 1 by weight and will be placed in waste disposal areas enclosed by earthen levees or dikes averaging fourteen feet in height. The enclosed areas will be filled to an average height of nine feet above natural grade, thereby leaving a free-board of five feet to the top of the dike. It is necessary to fill above ground to some extent to allow for subsidence of the material as it dewaters and consolidates. This system is designed to enhance water recovery efficiency and provide reclaimed land with a better agricultural potential at an earlier date than would normally be the case. Over 5,000 acres are planned for sand-clay disposal, all but 200 acres of which will be in mined-out areas Since no mined out area is available initially, an earthen dam will be constructed on unmined ground covering approximately 480 acres as an initial clay settling area. The dam structure is proposed to be about 200 feet wide and thirty feet high with a circumference of approximately four miles. In the past, the practice of disposing of clay wastes in above- ground areas raised the distinct possibility of potential dam failure with consequent release of the clay slimes. Prior to 1972, a large number of earthen phosphate dams in Florida failed due to inadequate design or construction. Following several serious dam failures in Florida, including the Cities Service Dam on the Peace River in 1971, minimum requirements for construction of such earthen dams were promulgated in Chapter 17-9, Florida Administrative Code. Since that time, no earthen dam constructed in Florida according to the regulatory requirements has failed. The state regulations require extensive engineering, design and monitoring to minimize the risk of dam failure. The design for the proposed Estech dam is based on extensive field investigation of soil conditions, and geological and hydrological analysis of the site. Soil borings show that there would be an adequate foundation for the dam and that "sinkholes" do not exist in the area. Soil for construction of the dam will be obtained in the immediate site area. The materials used in constructing the facility will be "zoned" in a manner designed to control seepage. Other seepage control devices will include internal gravel drains surrounding a collection pipe to lower the line of seepage through the dam and to prevent seepage from breaking out on the downstream slope. There will be three decant structures whose outlets discharge into a return water ditch along three sides of the embankment, with a surface drainage ditch on the other side to collect runoff. Although a layer of hardpan sub-soil is discontinuous and only extends for about 60 to 70 percent of the site circumference, such discontinuity is not considered critical due to other protections incorporated into the design of the structure. As the waste clay is deposited into the settling area, it will begin to consolidate with consequent decrease of permeability and form a sealer or liner along the bottom of the settling area, thus reducing the possibility of a "piping" failure through circular seepage. The possibility of dam failure due to "over-topping" by reason of excessive rainfall or wind and wave action occasioned during hurricane conditions is extremely remote. Dam design provides for a five foot freeboard which can be increased during a major storm by reducing the water level through spillway structures. Wooden booms anchored along the shoreline and vegetative growth will reduce wave action to some extent. During normal mining operations, there will be only about two feet of water over the clays in the settling area, and maximum height of storm waves would not exceed two feet. During the critical initial period, when a maximum of some twenty feet of water would be in the settling area, there would remain ten feet of freeboard to reduce the possibility of over-topping. The proposed Estech dam was "over-designed" to exceed the requirements of Chapter 17-9. Conservative assumptions were made that only water would be in the settling area, and that no hardpan would be present at the site, or clay in the settling area to seal the foundation. Expert testimony established that the dam design exceeds the requirements of state regulations and that the probability of a dam failure is extremely low because the design engineers addressed the most common causes of dam failures, which include over- topping, piping, sinkholes, slope failure, and earthquakes. The evidence shows that there is little likelihood of failure due to any of those causes. This finding is based not only on the fact that the dam design meets or exceeds the specifications of Chapter 17-9 as to methods of construction and inspection prior and subsequent to operation, but also because of Estech's commitment to "proof test" the strength of the dam with clear water prior to the deposition of clay wastes to monitor piezometric levels within the dam and otherwise determine if any potential problems exist during the critical initial period of operation. Although state regulations require that a registered engineer inspect each active dam annually, Estech will insure that inspection by the design engineer will be made on a monthly basis during the first year of active operations, together with inspection by company trained personnel at least three times a day during that period. (Testimony of Wissa, Dromwell, Halter, Exhibit 1, 3, 7, 11, 17, 21-24, 36-37, 59-61, 63) Due to the fact that the Estech dam will be located in the Manatee River watershed, there would be a serious adverse impact upon the Lake Manatee reservoir in the event of dam failure at a time when the clay settling area primarily contains waste clays. The most dangerous period is during initial filling operations and, since Estech will "proof test" the dam with clear water initially, a failure at that state would be relatively minor since the higher color and suspended solids contained in the discharge would be greatly diluted. However, if a failure occurred at a time the dam contained primarily waste clays, the reservoir capacity and safe reservoir yield of Lake Manatee would be substantially reduced, and the levels of suspended solids in the reservoir would be greatly increased. Approximately six to eight thousand acre feet of clay "slimes" in excess of a billion gallons would be deposited in the reservoir by a dam failure. Although the slimes would most probably-not reach the Lake Manatee dam, if an excessive amount of suspended solids reached the dam intake structure, it could well result in a cessation of water treatment plant operation for a period of seven to ten days. The clay wastes reaching the lake would coat the shoreline and therefore cause erosion and re-suspension by wave action and rain. It would be a chronic problem for the water treatment plant and require considerable additional expenditure of funds. Such a long-term problem would require time-consuming and expensive redesign of the plant with reduced output of drinking water during that period. The release of dilute clay as a result of a dam failure would cause initial turbidity of stream waters resulting in near total mortality of all aquatic animal life. However, nearly full recovery should occur in several years. Turbidities would decrease as the clay settled into the depths of Lake Manatee, but chronic turbidity would continue for months or years. Much of the non-woody vegetation in the upper Manatee River areas would be killed directly or coated with clay residues, but this loss would have no long-term significance. Trees and woody shrubs probably would not be significantly impacted, but would be stressed. Clays would be retained in the lake on a long-term basis unless removed by dredging at great expense. An initial severe impact to the fish population of the lake would be temporary, but fishing would not return to prespill levels. The recreational use of the lake would be impaired significantly and its ecological character would be altered for many years. Dam failure would not significantly affect the radioactivity concentrations in Lake Manatee or cause the water in the lake to violate the EPA drinking water standard for radium, since most of the radioactive materials would adhere to the clays which are subject to removal by the water treatment process. (Testimony of Wissa, Brezonik, Bromwoll, Cornwell, Shiager, Fishkind, Upchurch, Lincer, Zimmerman, Balter, Exhibits 11, 25, 38-39, 57) a. In view of concerns raised about the possibility of a dam failure, Estech considered several alternatives to an above-ground initial clay settling area. The cost of constructing the proposed above-ground impoundment is approximately 3.6 million dollars. If a below-grade settling area were to be constructed, it would eliminate the possibility of release of clay wastes. However, the clays in a below-grade area would not consolidate as easily as in a conventional settling area, and thus reclamation would be delayed for a longer period. The cost of constructing a below-grade settling pond would be almost thirty million dollars. The construction of a double dam around the initial settling area would cost over fifteen million dollars and preclude the mining of some 640,000 tons of phosphate ore with an inground value of nearly one million dollars. The second dam also would be subject to the same possibility of failure as the initial dam. The final alternative considered by Estech was one which would use a sand-clay mixture in the above-ground settling area rather than clay wastes only. If a dam failure occurred with such a mixture in the settling area, the impacts on Lake Manatee would be reduced considerably because the thicker sand- clay mixture would not reach the lake. Although turbid water would reach Lake Manatee in the initial surge, with consequent higher suspended solids, there would be no great impact on the ability of the water treatment plant to provide finished drinking water, although the cost of treatment would be somewhat higher. Release of the sand-clay mix would have only a negligible impact on Lake Manatee, but a major impact would result in the upper reach of the north fork of the Manatee River. The mixture would move into the north fork and proceed down stream until reaching the east fork tributary. Most vegetation, including trees, would be killed or severely stressed in the upper reach. Much of the sand-clay would be colonized by upland vegetation, but erosion and sedimentation would be slow and continue until a new channel and associated flood plain developed over a long period of time. A sand-clay mix in the initial settling area would permit more rapid reclamation, but it is necessary to use chemical flocculants in order to assist in achieving a satisfactory mix of materials. The cost of flocculents constitute the significant additional costs of some seven million dollars more than the proposed plan of constructing an above-grade settling area filled with dilute clays. A consulting engineer employed by Estech is of the opinion that the additional margin of safety by utilizing the sand-clay mixture justifies the additional expenditure, but Estech's design engineers and management personnel are of the opinion that the remote possibility of dam failure does not justify the additional cost. (Testimony of Wissa, Fishkind, Bromwell, Cornwell, Davis, Cape, Exhibits 7, 18-19, 39) OTHER ENVIRONMENTAL CONSIDERATIONS AND RECLAMATION PLAN a. About 72 percent of the 10,394 acre mine site will be "disturbed" during the course of mining operations. An average of 325 acres per year will be mined during the 21 years of mining. Some 690 acres will be used for the plant site, the initial clay settling area, and other support functions. About 11 to 13 percent of the property will be disrupted yearly. Each mining area will require about six years to complete land clearing, mining, and reclamation. Some 5700 acres of native range which once were pine flatwoods will be replaced primarily with improved pasture during reclamation. About 830 acres of this area will not be mined, but will be planted with pine seedlings to recreate a pine flatwoods condition. Twenty-three acres of sand-pine scrub will be mined and reclaimed to agriculture, but a 50 acre parcel will be preserved. Over 400 acres of xeric oak will be mined, but some 90 acres will be preserved. There will be an additional 58 acres of mixed forest land along established drainage swales in the reclaimed pastureland which should encourage wildlife movement and preservation. The only existing cypress swamp covers 18 acres and will be preserved. About 384 acres of lakes will be created with littoral zone wetlands along their edge as a result of mining operations and reclamation. No lakes are presently located on the Estech site. The reclamation plan provides for the most important and sensitive wetland areas on the site to be preserved, and it is planned to create a 100- acre wilderness area near the cypress head. The Estech property includes 1837 acres of wetlands which comprise about 18 percent of the site. These include 1219 acres of swamp forest, 600 acres of marsh ponds, and the 18 acre cypress dome. Mining will temporarily remove one third of the swamp forest and about 60 percent of the marshes. About 1064 acres (58 percent) will not be mined, and 1046 acres will be restored. The reclamation plan will result in an overall 15 percent increase in wetland acreage over pre-mining conditions. Disruption of these areas is limited as to types of wetlands as recommended in the EPA Area- wide EIS. Under this system, the most ecologically sensitive "Category I" wetlands must be preserved. "Category II" wetlands are those which may be mined if an adequate restoration program is proposed. This is the acreage for which Estech has prepared its restoration program. "Category III" wetlands, of which only 174 acres are located on the Estech site, do not require protection. Although Estech's proposed restoration of riverine hardwood swamps involves a new concept of phosphate mining reclamation, the reclamation plan and commitment by Estech includes provision for demonstration of its ability to successfully recreate those areas prior to mining. If the pilot project or actual re- creation of the hardwood swamps during a five-year project period is unsuccessful, these areas will not be mined. Present wildlife use of the rangeland at the Estech site is low due to activities such as heavy grazing and hunting. Although there will be migration of wildlife species during mining activities, the sequential pattern of mining and reclamation should provide sufficient opportunity for wildlife to relocate as suitable habitat becomes available. The proposed preservation of wetlands and creation of more wooded areas, marshes and lakes should result in potential positive long-term effects on many of the species in the area. Two threatened wildlife species that could be adversely impacted by the mining operations are the American alligator and eastern indigo snake. Although the alligator will decline somewhat during such operations, it is expected to increase above present levels with the addition of the lakes and increase in other wetlands when reclamation is completed. The eastern indigo snake will decline in numbers with the destruction of swamps and upland habitat, but should reach their former numbers after. reclamation. The United States Fish and Wildlife Service has recommended that efforts be made by Estech to have indigo snakes recovered from the work area for relocation. Estech will utilize double-walled pipelines with frequent inspections and mechanical safeguards to limit any damage that might occur in the event of a pipeline break in wetland areas. In addition, it will take numerous precautions concerning dragline crossings of wetland areas to prevent excessive damage and to restore such sites. As heretofore found, Estech does not plan to replace the topsoil in the majority of the reclaimed areas. It considers that a sand-clay mixture for reclamation will result in increase of soil productivity without the necessity of replacing the former topsoil. Replacement would be extremely expensive and would be of dubious value in view of the low quality of topsoil at the mine site. The reclaimed soils will be equal acid in many cases superior to the native soils in terms of fertility, moisture holding capacity, and nutrient retention, although they will have an initially poor structure in the top layer due to the absence of organic matter and soil biota. However, forage plantings on the improved pastures will encourage the development of such organic matter and, as it accumulates, natural vegetation will develop upon the sand-clay soils. Organic topsoil from wetlands will be placed in those areas when restored, as found necessary. Soil organisms perform useful functions that facilitate nutrient uptake and are important in any natural system. Most of such biota are lost during mining. However, barren soils are often colonized by invaders from adjacent undisturbed areas. Mycorrhizae and other beneficial organisms can be introduced through vectors, air, and from preserved wetlands. In addition, transplanting of trees and direct innoculation may accelerate the introduction of such organisms. Although use of the sand-clay mix for reclamation is a new technology, there have been prior successful tests of such a system. Estech will have to comply with reclamation standards of the Department of Natural Resources and other governmental requirements. If the system proves to be unworkable, adjustments can be made such as the ratio of sand to clay to facilitate improved drainage and plant growth. (Testimony of Cornwell, Davis, Cape, Bromwell, Lincer, Gamble, Exhibits 3, 4, 6-7, 11, 15-16, 39-42, 47, 57, supplemented by Exhibits 56, 58) ECONOMICS, HOUSING, AND TRANSPORTATION a. Estech's mining operation is intended to replace existing operations in Polk County. The proposed mining activity will cover an approximate thirty-year time period before reclamation is completed. Annual operation expenses are estimated at approximately $30,000,000.00, and total expenditures for the proposed mining activity will reach almost $650,000,000.00 in capital and operating costs. There will be some 325 permanent employees during the course of mining operations, the majority of whom will probably come from the existing Estech labor force in Polk County. Since most of those employees are expected to commute from present residences in the region, there should be minimal impact on housing facilities. A "multiplier" effect of Estech's expenditures and employment will have a greater resulting economic impact in the region. Some of Estech's employees and contractor personnel are expected to reside in Manatee county with consequent payroll income. A portion of Estech's maintenance and supply needs will undoubtedly be obtained from local businessmen in the county. The proposed project should have only a minimal impact on local governmental services since it is located in a rural area and will be self-sufficient as to water, sewer, fire and police protection. Local and state tax revenues will be a direct effect of the new mining activity. Substantial payments by Estech of state sales tax, severance tax, county ad valorem tax, and corporate income tax will produce substantial benefit to government. The Estech project should have only minimal impact on the road network because it plans to ship the phosphate product by rail rather than truck, except during extraordinary conditions such as a rail strike. In such a situation, Estech has agreed to notify the Manatee County engineer of its use of county roads so that a reasonable trucking schedule may be established to minimize conflict with peak traffic patterns. Although rail service is not presently available, Estech has a letter of commitment from a railroad line to provide necessary facilities for movement of phosphate rock. Estech has agreed not to commence mining operations until rail service is provided. Estech has also agreed to make necessary road improvement and maintain and repair any damage to county roads during the course of mining operations. (Testimony of Cape, Davis, Fishkind, Exhibits 4, 6, 7, 11, 47, 54) PUBLIC WITNESSES Seven public witnesses testified at the original hearings before Manatee County in January 1979, and six witnesses, including one who had appeared at the County hearing, testified at the final hearing. Additionally, a group of local citizens signed a petition which set forth various environmental concerns as to the proposed project and recommended denial of the application for development approval. Although the majority of the public witnesses were opposed to phosphate mining and environmental consequences thereof, several of the witnesses were of the opposite view and believed that phosphate mining could be conducted without adverse impacts on the environment. (Testimony of Fernald, Rain, King, Kitzmiller, Haley, Burlingame, Exhibit 2 (Testimony of Rains, Werick, Quy, Doozburg, H. Greer, M. Greer, Swizzik), 10, 50)
Recommendation That the Florida Land and Water Adjudicatory Commission issue a decision granting permission to Estech General Chemicals Corporation to develop its property located in Manatee County in the manner provided in the application for development approval, and subject to the conditions attached hereto at Exhibit 13, pursuant to the provisions of Chapter 380, Florida Statutes. DONE and ENTERED this 31st day of July in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Honorable Bob Graham Governor, State of Florida The Capitol Tallahassee, Florida 32301 Honorable Jim Smith Attorney General State of Florida The Capitol Tallahassee, Florida 32301 Honorable George Firestone Secretary of State State of Florida The Capitol Tallahassee, Florida 32301 Honorable Bill Gunter State Treasurer State of Florida The Capitol Tallahassee, Florida 32301 Honorable Gerald A. Lewis Comptroller State of Florida The Capitol Tallahassee, Florida 32301 Honorable Doyle Conner Commissioner of Agriculture State of Florida The Capitol Tallahassee, Florida 32301 Honorable Ralph D. Turlington Commissioner of Education State of Florida The Capitol Tallahassee, Florida 32301 Department of Community Affairs C/O C. Laurence Keesey, Esquire Room 204, Carlton Building Tallahassee, Florida 32301 Department of Administration Mr. Nevin Smith, Secretary 435 Carlton Building Tallahassee, Florida 32301 Wade L. Hopping, Esquire Hopping, Boyd, Green and Sams Post Office Box 6526 Tallahassee, Florida 32301 Roger Tucker, Esquire Tampa Bay Regional Planning Council 9455 Koger Boulevard St. Petersburg, Florida 33702 Richard F. Nelson, Esquire 2070 Ringling Boulevard Post Office Box 2524 Sarasota, Florida 33578 Bill Fay, Jr., Esquire 1400 4th Avenue West Post Office Box 959 Bradenton, Florida 33505 Baya Harrison, III, Esquire 325 North Calhoun Street Tallahassee, Florida 32301 Exhibit A * NOTE: Exhibit A, LIST OF EXHIBITS, is not a part of this ACCESS document. Exhibit A is available for review from the Division's Clerk's Office. Exhibit B
Other Judicial Opinions A party who is adversely affected by this Summary Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The Notice of Appeal must be filed within the 30 days of rendition of the order to be reviewed.
The Issue The issue here concerns the entitlement of the Petitioner, Hernstadt Broadcasting Corporation to be granted certain environmental permits from the Respondent, State of Florida, Department of Environmental Regulation, which would allow the Petitioner to construct a radio transmitter tower and access dock within the Biscayne Bay which is located in Dade County Florida. 1/
Findings Of Fact The Petitioner in this action, Hernstadt Broadcasting Corporation, owns and operates radio station WKAT, which is located in Miami Beach, Dade County, Florida. The Petitioner is licensed by the Federal Communications Commission to pursue this enterprise. On April 30, 1980, the State of Florida, Department of Environmental Regulation received an application from the Petitioner, which application requested permission to construct a radio transmitter tower and access dock in Biscayne Bay, Dade County, Florida. (The tower end dock are part of a proposed station complex in which the radio station building is to be constructed upland from the Bay.) The project, if allowed, would be located off the north side of the Julia Tuttle Causeway which connects the City of Miami and the City of Miami Beach via the Biscayne Bay. The tower and access dock, if constructed, would be located in submerged lands owned by the State of Florida. In view of the location of this apparatus in Biscayne Bay, it would be subject to the provisions of the Biscayne Bay Aquatic Preserve Act found in Chapter 258, Florida Statutes, together with other provisions of statute and rule. To place the access dock in the Bay, the Petitioner proposes to drive pilings into the Bay bottom to support the access dock which is 200 feet long and four (4) feet wide. The support mechanism for the radio tower would also be constructed by the driving of pilings into the Bay bottom and the radio transmitting tower, once built, would be 400 feet tall and would have attached stabilizing guy wires connected to anchors driven into the Bay bottom. As the pilings are driven into the floor of the Bay, the displaced soils will be compressed into lower elevations or redistributed against the pilings. Respondent's Exhibit No. 15, admitted into evidence, is a copy of the original application for permit, which was modified by site plans and sketches depicted in Respondent's Exhibit No. 16, admitted into evidence, shortening certain dimensions related to the access dock. (These modifications came about subsequent to the Department of Environmental Regulation's permit application appraisal found as Petitioner's Exhibit No. 10, which is dated June 23, 1980.) After review of the project, in the face of the aforementioned modifications, the Department of Environmental Regulation issued a letter of intent to deny the permit request. This letter of intent was dated September 9, 1980, a copy of which may be found as petitioner's Exhibit No. 11, admitted into evidence. The authority stated for such denial are these provisions of Subsection 258.165(3)(b), Florida Statutes (Supp. 1980), and Rule 17-4.242(1), Florida Administrative Code. Subsequent to the issuance of the letter of intent to deny, a further modification was made on the project increasing the length of the proposed access dock to the presently requested 200 feet. This modification is depicted in petitioner's Exhibit No. 12, admitted into evidence, which shows site plans and other pertinent information related to the project. Another modification to the project which the Petitioner claims is not subject to permit review by the Department of Environmental Regulation, and for which the Department of Environmental Regulation takes a contrary point of view, concerns the use of a grid of nickel-plated copper straps, approximately 40 feet by 40 feet, constituted of a mesh of approximately 1/4 inch in diameter by 1 inch sections to be placed underneath the tower and on the Bay bottom for purposes of grounding the tower. This item was not made known to the Respondent until September 30, 1980, at a time subsequent to the letter of intent to deny. The Petitioner in this action pursues the project on the basis of a joint use agreement entered into with the State of Florida, Department of Transportation, in which the Department of Transportation, in return for the ability to use the radio tower for communications in connection with a surveillance and traffic control system for Interstate Highway-95 and for the ability of the City of Miami, Florida, to use the facility for a tactical communication repeater installation, would grant to the Petitioner the Department of Transportation's rights and opportunities as easement holder in the area where the subject project would be constructed. See Petitioners' Exhibit No. 3, admitted into evidence. The Department of Transportation's rights stem from an easement grant from the Trustees of the Internal Improvement Trust Fund. See Petitioner's Exhibit No. 13, admitted into evidence. The rights of the Petitioner, by assignment from the Department of Transportation, do not relieve Petitioner of the obligation to gain the necessary approval of the Trustees of the Internal Improvement Trust Fund in the person of the State of Florida, Department of Natural Resources for permission to use those submerged lands over which the access walkway and tower would be constructed, notwithstanding any rights and privileges assigned to the Petitioner by the Department of Transportation as easement from the Trustees of the Internal Improvement Trust Fund. This is true because the perpetual easement granted from the Trustees to the Department of Transportation for right-of-way and dredging purposes related to the roadway which is constituted of the Julia Tuttle Causeway and to the adjacent Bay bottoms related to construction and maintenance of that roadway, does not envision assignment of the submerged lands to an entity in the position of the Petitioner, which entity does not have as its purpose the construction or maintenance of the roadway; hence, the necessity to gain permission from the Department of Natural Resources if the access dock and tower are to be constructed on the submerged land of the State. The easement held by the Department of Transportation is specific in nature and does not contemplate the construction of a radio station. (It is not necessary to comment on the question of whether a joint use agreement between the Department of Transportation and Hernstadt as that Department's assignee for rights and privileges bestowed upon the Department from the Trustees based on the easement rights granted on October 2, 1941, would allow the construction of the building of the radio station building which would be at the upland terminus of the access dock which also adjoins the radio tower, the Department of Environmental Regulation having offered no claim for permitting jurisdiction over the radio station building.) The Petitioner proposes to move its radio station from the existing location in Miami Beach because buildings in the general area of the radio station interfere with the radio signal and, in addition, there is interference caused by radio transmissions from Cuba. The terms of the license held by Petitioner on issuance from the Federal Communications Commission limit the movement of the station's transmitter tower to a location no more than four (4) miles from the current location. At the time of the hearing, the Petitioner had not located an alternative tower site, other than the proposed site. As stated before, if the tower were constructed, the State of Florida, Department of Transportation would utilize the tower in its communications network and the City of Miami Fire and Police Departments would likewise desire to use the tower. The Florida Marine Patrol and the Florida Highway Patrol would also be interested in using the proposed tower for communications purposes. The City of Miami Planning and Advisory Board and the City Commission of that municipality would be in favor of the construction of the proposed radio tower. Dade County, Florida, has adopted a Comprehensive Master Plan, copies of which may be found as Respondent's Exhibit No. 19, admitted into evidence. Within that document is a discussion of environmental concerns within the county to include Biscayne Bay and, in particular, concern for protection of environmentally sensitive areas such as Biscayne Bay and an interest by the County to provide a wide range of public water oriented opportunities for the populace. Subsequent to the time of the submission of the permit application, and specifically, in October, 1980, Dade County, through its Metropolitan Planning Department and in conjunction with the Metropolitan Dade County Environmental Resources Management Department prepared a proposed Biscayne Bay Management Plan, a copy of which may be found as Respondent's Exhibit No. 17, admitted into evidence. This plan was approved by the Board of County Commissioners of Dade County, Florida, by an Ordinance, a copy of which may be found as the Respondent's Exhibit No. 18, admitted into evidence. The Biscayne Bay Management Plan encourages the enhancement of public access to the Bay for uses such as fishing, boating, shoreline wading and view in and the preservation and enhancement of the environmental, chemical and aesthetic qualities of the Bay. Furthermore, if the necessary permission could be obtained, Dade County, has future plans to use the subject Julia Tuttle Causeway as a public access to the Bay. The location of the radio tower and associated facilities would interfere with the proposed use by Dade County. The Department of Environmental Regulation, in keeping with Section 403.0615, Florida Statutes, 2/ through a program in conjunction with Dade County is attempting the restoration of the biological and chemical characteristics of the Biscayne Bay. Some of the items included in this program would be enhancement of aquatic vegetation, including seagrasses and mangroves and the promotion of aesthetics and public access to Biscayne Bay, to include the area of the Julia Tuttle Causeway. Radio station WKAT presents public service programs; is a part of the Emergency Broadcasting System and broadcasts emergency information in times of natural disaster. On the question of environmental implications of this project, the placement of the pilings would cause the destruction of certain seagrasses in that area, while at the same time promoting the introduction of marine life along the surfaces of the tower and dock supports. Seagrasses in the area where the grounding system would be placed may be destroyed and although the copper to be used would be nickel plated, thereby inhibiting the release of the toxic properties of the coated copper, eventually the nickel plating would break down and the marine life communities adjacent to the mesh would be harmed by the copper. The loss of seagrasses under the grid could cause a reduction in fish population. The installation of the radio tower and access dock in the Biscayne Bay is an impediment to navigation; however, the Petitioner intends to place channel markers to divert boat traffic away from the tower and its environs. There is no expected difficulty with run-off, discharges or other forms of pollution related to the construction or operation of the tower facility, although there will be some turbidity caused in the construction phases of the project. The project would be located in a State Aquatic Preserve within the meaning of Chapter 258, Florida Statutes; would be located in waters of the State within the meaning of Chapters 253 and 403, Florida Statutes; would be in navigable water within the meaning of Chapter 253, Florida Statutes, end would be in an Outstanding Florida Water within the meaning of Rule 17-4.242(1), Florida Administrative Code.
The Issue Whether Application #01109-L and Application #01109-J for a public water supply system to serve approximately 17,500 acres of land in Lee County, Florida, should be granted and a permit issued by the South Florida Water Management District.
Recommendation Based upon the foregoing Findings and Conclusions of Law, the Hearing Officer recommends that a water use permit be issued to the applicant pursuant to Applications #01109-J and #01109-L for a total annual allocation of 1.64 BGY for ten (10) years subject to the thirty-one (31) limiting conditions attached to the "Florida Cities Water Company" report, which report is a part of the record of this case. DONE and ORDERED this 18th day of January, 1980, in Tallahassee, Leon County Florida. DELPHENE C. STRICKLAND 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 18th day of January, 1980. COPIES FURNISHED: Stephen A. Walker, Esquire South Florida Water Management District Post Office Box V West Palm Beach, Florida 33402 Ross A. McVoy, Esquire 318 North Monroe Street Post Office Box 669 Tallahassee, Florida 32302 Terry F. Lenick, Esquire Assistant County Attorney County of Lee Post Office Box 398 Fort Myers, Florida 33902 =================================================================
The Issue Whether a permit should be issued for the construct in of a road over a marsh area surrounding Lake Susan in order to realign a clay road known as Hull Road near Clermont, Lake County, Florida.
Findings Of Fact On October 9, 1963, the Southwest Florida Water Management District adopted Resolution No. 63 setting forth a declaration of "The Works of the District". Rule 16J-1.03 was promulgated implementing Chapter 373, Florida Statutes, and was readopted October 5, 1974, and amended December 31, 1974. The Lake Susan area, in question here, is within the "work of the district" because it is included in the area encompassed in Rule 16J-1.03(2), "The Oklawaha River, its natural floodway and tributaries, connecting channels, lakes and canals". Lake Susan and its surrounding marshlands is subject to Rule 16J-1.06, which requires, in part, that an application be made before placing fill materials in the marshlands therein and said rule conditions a permit on whether there will be adverse effects by drainage or inundation or will alter or restrict a watercourse within the flood plain of a 25 year flood on lands not owned by applicant. On November 12, 1968, the Board of County Commissioners of Lake County, Florida, adopted a resolution which stated in part: "BE IT RESOLVED by the Board of County Commissioners of Lake County, Florida, that the cutting and removal of natural vegetation from the shallow areas of our lakes and streams, except as hereinafter provided, be discouraged; and that the Governing Authorities having jurisdiction over such areas be requested to limit the removal and clearing of such vegetation; that only such permits for the disturbance of vegetation be granted for proper access to and from the shoreline of property owners to clear waters retaining as much of the natural vegetation as is possible." This resolution has never been rescinded. Hull Road is a light duty, all weather, improved service, county maintained, dead end, clay road. The road serves residential and agricultural interests as well as lake recreational purposes. Some of the lands the road serves is now being developed by subdivision developers. The Lake County Board of County Commissioners propose to realign Hull Road across the marsh and water section of the southernmost tip of Lake Susan by filling and removing from the flood plain approximately 1.5 acres for a roadway, thereby draining through the culvert some 38 acres. The proposed work requires the construction of an embankment, approximately 66 feet wide and 800 feet long. The road plan is in accordance with the Florida Department of Transportation's criteria for similar roads. No permit was applied for or secured before work began on April 9, 1975 or before a fill of some 400 feet in length and 66 feet in width had been placed. Work was ordered stopped by permittee upon discovery of said activity on April 24, 1975. Applicant had not requested a permit under the belief that the area was not navigable and that therefore no permit was needed. The fill is standing in the condition and state of construction as it was when construction was ordered discontinued on April 24, 1975. The applicant contends that: (1) the present road is hazardous to the travelling public because of two sharp curves thereon, (2) the residents and the agricultural and recreational interests would be better served by a straight road rather than the existing road, (3) one alternative to the proposed realignment was to straighten the existing curve without filling in the marsh, but this alternative was abandoned for the reason that some 14 citrus trees would have to be removed and the county would have to reimburse the property owners for their right of way. A second alternative to the proposed plan which would straighten the hazardous curves would have involved fill of the marsh along the edge of the existing road and would have involved reimbursement to property owners, (4) it is the firm policy of the Board of County Commissioners of Lake County that the county will not buy right of way for county roads and that the county will not use its power of eminent domain to condemn right of way on a road, (5) no harmful effect would be done to the lowlands so long as culverts were part of the construction plans for that portion of the road that would cross the marshlands. The Southwest Florida Water Management District contends that: (1) the applicant county failed to make an application and secure a permit before beginning to fill a marshland area that is within the work district of the permittee board as defined in Rule 16J-1.03, (2) the fill for the proposed road realigning Hull Road across the marsh area will place fill within the mean annual flood plain of a lake and will alter or restrict a watercourse within the flood plain of a 25 year flood on lands not owned, leased or controlled by the applicant, (3) realignment of Hull Road to the marsh and waters of Lake Susan is not a reasonable and beneficial activity and is in violation of both the resolution of Lake County dated November 12, 1968, and the rules of the permittee, i.e., 16J-1.01(3)(4), (4) although an application has now been made for a permit for the proposed road, alternatives to filling said marshland should be explored fully before the Board is requested to waive the rules of the District. It has not been shown that the alternative routes would not better serve the safety interests of the public using the road and be more in keeping with the conservation policies of both the applicant and the permittee. Based on the foregoing it is the finding of the Hearing Officer that (1) the realignment of Hull Road is in conflict with the policy of the county established by resolution on November 12, 1968, (2) the realignment of the road across the waters and marshland of Lake Susan would increase the safety of Hull Road by eliminating two hazardous curves on the roadway in its present condition and location, (3) the alternative route which would straighten the curves without filling in the marshland is more in keeping with the previous resolution of the county and is consistent with the work of the District as promulgated in the cited rules of the permittee. No cost estimate has been made on alternative routes and no traffic studies have been made to determine the average flow of traffic.
