10-004255 Joy Ann Wettstein Griffin vs. Lake Water Authority And Department Of Environmental Protection Status: Closed Recommended Order on Monday, August 23, 2010.

Summary: Applicant gave reasonable assurance that all criteria would be satisfied for project to restore Lake Beauclair; ERP issued.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOY ANN WETTSTEIN GRIFFIN, )

)

Petitioner, )

)

vs. ) Case No. 10-4255

)

LAKE COUNTY WATER AUTHORITY )

AND DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

_______________________________ )

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, D. R. Alexander, on August 9, 2010, in

Tavares, Florida.

APPEARANCES

For Petitioner: Joy Ann Wettstein Griffin, pro se

33438 Picciola Drive

Fruitland Park, Florida 34731-6136

For Respondent: Amanda G. Bush, Esquire

(Department) Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

For Respondent: Carole Joy Barice, Esquire

(Authority) McGee & Mason, P.A.

101 South Main Street

Brooksville, Florida 34601-3336

STATEMENT OF THE ISSUE

The issue is to whether to approve the application of

Respondent, Lake County Water Authority (Authority), for an

Environmental Resource Permit (ERP) and consent to use sovereign

submerged lands authorizing a restoration project in Lake

Beauclair (Lake).

PRELIMINARY STATEMENT

On June 18, 2010, Respondent, Department of Environmental

Protection (Department), issued a Consolidated Notice of Intent

to Issue Environmental Resource Permit and Consent to Use

Sovereignty Submerged Lands (Notice of Intent) authorizing the

Authority to conduct a restoration project in the southwestern

part of the Lake and four adjacent residential canals. On

June 25, 2010, Petitioner, Joy Ann Wettstein Griffin, who

resides on Lake Griffin, filed her Petition contesting the

proposed agency action on several grounds. The matter was

referred by the Department to the Division of Administrative

Hearings on June 29, 2010, with a request that an administrative

law judge conduct a formal hearing. The matter was initially

assigned to Administrative Law Judge David M. Maloney. On

August 3, 2010, the case was transferred to the undersigned.

After the Authority filed a Motion to Expedite Hearing on

July 7, 2010, a final hearing was scheduled on August 9-11,

2010, in Tavares, Florida. The Authority's Motion to Dismiss

the Petition for lack of standing was denied by Order dated

July 19, 2010.

At the final hearing, Petitioner testified on her own

behalf and presented the testimony of her son, Daniel Max

Loomis, who also resides on Lake Griffin. Also, she offered

Petitioner's Exhibits 1-6, which were received in evidence.

Exhibit 6 is a composite exhibit containing six sub-exhibits

categorized as standing; precautionary principle, reverse onus,

risk assessment; the dredging project; pollution; federal and

state rules; and the United States Army Corps of Engineers

permit application. Most of these matters were objected to by

opposing counsel on numerous grounds, but they have been

received for their limited evidentiary value. The Authority

presented the testimony of Michael J. Perry, its Executive

Director, who was accepted as an expert; Lance M. Lumbard, the

Authority's Water Resources Project Manager and accepted as an

expert; Dr. John Kiefer, a wetlands scientist accepted as an

expert; Dr. Edmond J. Dunne, a wetlands ecologist with the St.

Johns River Water Management District (District) and accepted as

an expert; Dr. Michael F. Coveney, a limnologist with the

District and accepted as an expert; and Edward Hayes, a

limnologist with the Florida Fish and Wildlife Conservation

Commission (FFWCC) and accepted as an expert. Also, it offered

Authority Exhibits 1-17, which were received in evidence. The

Department presented the testimony of Nicole Martin, an

Environmental Specialist II in its Orlando District Office and

accepted as an expert. It also offered Department Exhibits 1-8,

which were received in evidence.

There is no transcript of the hearing. Proposed Findings

of Fact and Conclusions of Law were filed by Petitioner on

August 13, 2010, and by the Authority and Department on

August 18 and 20, 2010, respectively, and they have been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

A. History of the Proceeding

1. The Authority, an independent special taxing district,

was created by the Legislature in 1953 by special act as the

Ocklawaha Basin Recreation and Water Conservation and Control

Authority. See Ch. 29222, Laws of Fla. (1953). In 2000, it was

renamed the Lake County Water Authority. Ch. 2000-492, § 2, at

745, Laws of Fla. Among its duties is to make "improvements to

the streams, lakes, and canals in [Lake] [C]ounty." Id.

2. The Department is the state agency with the authority

under Part IV, Chapter 373, Florida Statutes (2009), 1 to issue

ERPs, as well as to act as the staff for the Board to authorize

activities on sovereign submerged lands pursuant to Chapter 253,

Florida Statutes, and Florida Administrative Code Rule Chapter

18-21. 2

3. The Lake is an approximate 1,118-acre water body

located south and west of U.S. Highway 441, east of State Road

19, and north of County Road 448. It is a part of the Harris

Chain of Lakes and is the first lake downstream (north) of Lake

Apopka, connected by the Apopka-Beauclair Canal. The Lake

discharges to Lake Dora by a connection at the northeast corner

of the Lake, which connects with Lake Eustis via the Dora Canal.

Lake Eustis then connects with Lake Griffin by Haines Creek.

See County Exhibit 3; Petitioner's Exhibit 3. The waters from

the Harris Chain of Lakes eventually discharge into the

Ocklawaha River and then into the St. Johns River.

4. Beginning around World War II, intense agricultural

activity, more commonly known as muck farms, took place around

the shores of Lake Apopka, which resulted in significant amounts

of pesticides, nutrients, and sediment being deposited in that

water body. Because the Lake was at the downstream end of the

Apopka-Beauclair Canal, it also received significant amounts of

these contaminants. This led to a degradation of the aquatic

plant community and the balance of fish and wildlife species

that use the Lake. It is now characterized as a "eutrophic

water body."

5. Since the mid-1980s, steps have been taken to restore

the water quality in Lake Apopka. As a part of the restoration

of Lake Apopka, the District acquired ownership of former muck

farms located just northwest of Lake Apopka in an area known as

the Lake Apopka North Shore Restoration Project, West Marsh.

The Marsh in turn is divided into a number of field units, also

known as cells.

6. In cooperation with the District and the FFWCC, over

the last eight years the Authority has developed a plan to

improve water quality and habitat in the Lake and four

residential canals along the Apopka-Beauclair Canal. In

general, the plan entails removing by hydraulic dredge sediments

from an estimated 260 acres in the western portion of the Lake

and from an additional 21 acres of combined residential canal

segments. At least some of the dredging site is in state-owned

sovereign submerged lands and requires the consent of the Board.

The dredged sediment will be transported by pipeline 8.3 miles

south of the Lake to Cells F and G of the West Marsh. Water

from the sediment will be routed a short distance north to the

Authority's Nutrient Reduction Facility (NuRF), treated to

remove phosphorus and other contaminants, and then discharged

downstream through the Apopka-Beauclair Canal. Due to permit

conditions relating to dissolved oxygen levels, dredging

activities can only take place between September 15 through

June 15 of any year. Therefore, resolution of this dispute has

been made on an expedited basis.

7. On September 22, 2009, the Authority filed an

application with the Department to implement its plan. See

Authority Exhibit 10. Two requests for additional information

were made by the Department, and responses were filed by the

Authority. See Authority Exhibits 11 and 12. On June 18, 2010,

the Department, through its Orlando District Office, issued its

Notice of Intent to issue an ERP and consent to use sovereignty

submerged lands. See Department Exhibit 10. The ERP contains a

number of specific and general conditions applicable to this

project, all designed to ensure that the relevant permit

requirements are satisfied.

8. On June 25, 2010, Petitioner, a former member of the

Authority and a long-time advocate of restoring the Harris Chain

of Lakes, filed a Petition challenging the proposed agency

action on numerous grounds. Her primary objection is that the

sediment will be deposited at West Marsh on top of already-

contaminated soils containing pesticides from prior farming

activities, which may cause "environmental harm" to humans,

fish, and aquatic wildlife. She also contends that no state

permit should be issued until the United States Army Corps of

Engineers issues a permit for the project; that diesel fumes

from the dredging equipment used on the project may pollute the

air and water; that the project may violate federal, state, and

local rules; and that sediment from the dredging activities in

the Lake may drift downstream resulting in environmental harm to

Lake Griffin, where she resides. No specific objection was

raised regarding the consent to use sovereign submerged lands

for dredging purposes.

9. For the last 26 years, Petitioner has resided on Lake

Griffin, which lies within the Harris Chain of Lakes.

Uncontroverted evidence establishes that her property is at

least 21 miles downstream from the site of the dredging

activities and around 27 miles from the deposition site. The

path of the restoration site to Petitioner's property involves

travel north through the Lake, then across Lake Dora to Lake

Eustis, northwesterly through Haines Creek, and across Lake

Griffin to the southwestern area of the lake where she resides.

The path from the disposal site to her property requires further

travel from Cells F and G within the West Marsh, down the

Apopka-Beauclair Canal to the restoration site on the Lake, and

then along the described path across Lakes Beauclair and Dora,

Dora Canal, Lake Eustis, Haines Creek, and Lake Griffin.

According to expert testimony at hearing, the likelihood of

sediment transfer from the dredging site to Lake Griffin is

"scientifically inconceivable." It can be inferred that the

likelihood of the treated, discharged water from the disposal

site at West Marsh reaching her property is even more remote.

This was not credibly contradicted.

B. The Project

10. The project involves the removal of 1.32 million cubic

yards of human-induced sediment from an approximate 255-acre

area in the southwestern part of the Lake and approximately

30,700 cubic yards from a 6.3-acre area within portions of four

adjacent residential canals. Floating turbidity barriers and

other measures around the dredge site in the Lake and canals

will ensure that other areas of the lake system will not be

impacted. The dredged material will be pumped through 8.3 miles

of high density polyethylene pipe along the Apopka-Beauclair

Canal to a disposal site known as Cells F and G, which are

located on the west side of that Canal on property owned and

operated by the District. Together, the two cells comprise

around 980 acres. The sediment will be treated with polymers (a

chemical process) to aid in the settling of organic solids. The

supernatant water ( i.e. , the water overlying the deposited

sediment) will then be pumped to the nearby NuRF, owned and

operated by the Authority, treated with alum to remove nutrients

and phosphorus, and discharged from the NuRF into the Apopka-

Beauclair Canal, which ultimately discharges into the Lake.

11. A number of problems currently exist in the Lake,

including loose sediments, high nutrient concentrations, and

navigational impairments. The project is designed to improve

water quality by removing accumulated sediments at the mouth of

the Lake that are re-suspended by wind and wave action and the

propellers of motorboats, and which allow nutrients to enter the

water. Also, the project is designed to improve habitat by

allowing a more desirable substrate for aquatic plants to become

established, and to improve navigation by removing accumulated

sediment that currently impedes navigation. Therefore, the

project will clearly restore that portion of the Lake to

something much closer to its pre-disturbance bed conditions in a

manner likely to benefit fish and wildlife, improve

navigability, and eliminate re-suspension of materials from

boating activities.

12. The Authority conducted a battery of chemical and

physical testing to determine whether the sediments were useful

as soil amendments for agriculture or for use in wetland

restoration at the inactive muck farms north of Lake Apopka.

Arsenic in the sediments was present at a mean concentration

within the range of natural histosols (organic wetland soils) in

the State, but not at levels suitable for transfer to

residential or commercial properties. All metals were within

allowable concentration levels established by the United States

Environmental Protection Agency for land application of

biosolids at farms. Organochlorine pesticides were present at

low levels. Residual pesticide concentrations, and all other

metal concentrations in the sediments, would be suitable for

residential, commercial, and farming properties.

13. Based on these characteristics and analyses, Cells F

and G within the West Marsh were selected as the best

practicable and safe alternative for the beneficial use of the

sediments. The sediments will be used to cap much higher

pesticide-contaminated soils in those Cells. This will create

more shallow water depths in the Cells, facilitate greater cover

of the former muck farms by wetland vegetation, and partially

restore historic wetland conditions that existed prior to

farming and soil subsidence.

14. The FFWCC concedes the possibility of impacts to fish

and wildlife as a result of depositing spoil material into Cells

F and G. While there is some potential for fish mortality in

those Cells, the FFWCC believes the overall, long-term benefit

to fish and wildlife in both the Lake and Cells F and G far

outweigh any temporary, negative impacts that may result from

the project.

15. Further, the evidence establishes that Cells F and G

currently have sediment with appreciable levels of pesticides,

as well as fish that contain sufficient levels of pesticides to

be hazardous to fish-eating birds. Therefore, the contaminated

fish are not an environmental asset. Because of this, the

District maintains deep water and thick vegetation in those

Cells to discourage foraging by fish-eating birds. The

deposition of the sediment will cover the existing contaminated

soils with sediments having a much lower concentration of

pesticides thus reducing the exposure to fish and wildlife. The

evidence supports a finding that the deposition of the dredge

sediments will increase the surface soil elevation in Cells F

and G, which will aid the District in future restoration of

emergent marsh communities on this site. Petitioner's

contention that the possibility of harm to even a single

contaminated fish outweighs the benefits of using that site as a

depository has been rejected.

16. Petitioner also suggested that the sediment should be

transported by truck to another location, such as a hazardous

waste site, or that the project should be postponed for another

year until testing is completed by a prospective vendor (Clean

to Green) who claims its proposed methodology (yet to be tested

and scientifically validated) can treat the sediment off-site in

a safer manner. Given the overwhelming and uncontroverted

scientific evidence offered at hearing in support of the project

and the manner in which it will be undertaken, these

alternatives are not deemed to be practical, reasonable, or

supported by scientific evidence. The proposed deposition site

is clearly the best and safest alternative.

C. Rule Requirements

17. Rules 40C-4.301 and 40C-4.302 prescribe the conditions

for issuance of an ERP. Generally, the first rule focuses on

water quantity, environmental impacts, and water quality. The

second rule generally requires that a public interest balancing

test be made, and that cumulative impacts, if any, be

considered. Further standards implementing the rules are found

in the District's Basis of Review.

18. The evidence supports a finding that the Authority has

given reasonable assurance that the project will not cause

adverse water quantity impacts, adverse flooding to on-site or

off-site property, adverse impacts to existing surface water

storage and conveyance capabilities, or adverse impacts on the

maintenance of surface or ground water levels or surface water

flows.

19. The evidence supports a finding that the Authority has

given reasonable assurance that the project will not adversely

affect the quality of receiving waters or violate water quality

standards. Reasonable assurance has also been given that the

project will not adversely impact the value of functions

provided to fish and wildlife and listed species by wetlands and

other surface waters.

20. The project will have no adverse secondary impacts.

21. The project will not adversely affect works of the

District and special basin or geographic area criteria.

22. The Authority has given reasonable assurance that the

project is capable of being performed and functioning as

proposed. Further, the Authority has sufficient financial,

legal, and administrative capabilities to ensure that the

project will be undertaken in accordance with the terms and

conditions of the permit.

23. The evidence supports a finding that the project will

not be contrary to the public interest, as defined in Rule 40C-

4.302 and Section 373.414(1)(a), Florida Statutes.

24. All other contentions regarding the issuance of the

ERP have been carefully considered and found to be without

merit. Therefore, it is found that the requirements of the two

rules have been met.

25. No dispute was raised regarding the consent to use

sovereign submerged lands to conduct the dredging activities.

Chapter 18-21 requires that the activity must not be contrary to

the public interest. As to this issue, the evidence supports a

finding in favor of the Authority.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

27. Petitioner, while sincere and well-intentioned, failed

to establish that the project will affect her substantial

interests. See Finding of Fact 9, supra . Therefore, she lacks

standing to initiate this action. Even so, she was afforded a

full opportunity to challenge the Department's proposed agency

action and to offer proof in support of her assertions.

28. As the applicant for a permit, the Authority bears

the burden of proving by a preponderance of the evidence that it

has given reasonable assurances that that all permitting

criteria will be satisfied. Reasonable assurances means "a

substantial likelihood that the project will be successfully

implemented." See Metropolitan Dade Cty v. Coscan Fla., Inc.,

et al. , 609 So. 2d 644, 648 (Fla. 3d DCA 1992). It does not

require absolute guarantees that the applicable conditions for

issuance of the permit have been satisfied. See , e.g. , Crystal

Springs Recreational Preserve, Inc. v. S.W. Fla. Water Mgmt.

Dist., et al. , DOAH Case No. 99-1415, 2000 Fla. ENV LEXIS 41 at

*98 (DOAH Jan. 27, 2000, SWFWMD Feb. 23, 2000). These

requirements have been met.

29. Based on the detailed site plans, engineering studies,

and scientific testimony, the overwhelming evidence supports a

conclusion that the Authority has given reasonable assurances

that all relevant criteria will be satisfied. The permit and

consent to use lands should be approved.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Environmental Protection

enter a final order granting the application of the Authority

for an ERP and consent to use sovereign submerged lands.

DONE AND ENTERED this 23rd day of August, 2010, in

Tallahassee, Leon County, Florida.

S

D. R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of August, 2010.

ENDNOTES

1/ All statutory references are to the 2009 version of the

Florida Statutes.

2/ All rule references are to the current version of the Florida

Administrative Code.

COPIES FURNISHED:

Lea Crandall, Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Thomas M. Beason, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Joy Ann Wettstein Griffin

33428 Picciola Drive

Fruitland Park, Florida 34731-6136

Carol Joy Barice, Esquire

McGee & Mason, P.A.

101 South Main Street

Brooksville, Florida 34601-3336

Amanda G. Bush, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days of the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

render a final order in this matter.