99-000694 Sarah E. Berger vs. Southern Hy Power Corporation And Department Of Environmental Protection Status: Closed Recommended Order on Thursday, March 2, 2000.

Summary: Applicant presented reasonable assurances that the proposed project complies with statutes and rules.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BERNARD M. CAMPBELL and )

BESSIE H. CAMPBELL, )

)

Petitioners, )

)

vs. ) Case No. 99-0307

) OGC No. 98-3033

SOUTHERN HY POWER CORPORATION )

and STATE OF FLORIDA, DEPARTMENT )

OF ENVIRONMENTAL PROTECTION, )

)

Respondents. )

_________________________________)

SARAH E. BERGER, )

)

Petitioner, )

)

vs. ) Case No. 99-0308

) OGC No. 98-3022

SOUTHERN HY POWER CORPORATION )

and STATE OF FLORIDA, DEPARTMENT )

OF ENVIRONMENTAL PROTECTION, )

)

Respondents. )

_________________________________)

SARAH E. BERGER, )

)

Petitioner, )

)

vs. ) Case No. 99-0694

) OGC No. 99-0244

SOUTHERN HY POWER CORPORATION )

and STATE OF FLORIDA, DEPARTMENT )

OF ENVIRONMENTAL PROTECTION, )

)

Respondents. )

_________________________________)

BERNARD and BESSIE CAMPBELL, )

)

Petitioners, )

)

vs. ) Case No. 99-0696

) OGC No. 99-0247

SOUTHERN HY POWER CORPORATION )

and STATE OF FLORIDA, DEPARTMENT )

OF ENVIRONMENTAL PROTECTION, )

)

Respondents. )

_________________________________)

RECOMMENDED ORDER

A hearing was held pursuant to notice, on September 22

through 24, 1999, in Inglis, Levy County, Florida, and on

November 1 and 2, 1999, in Tallahassee, Florida, by Stephen F.

Dean, assigned Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioners: John S. Clardy III, Esquire

Post Office Box 2410

Crystal River, Florida 34426-2410

For Respondent Southern Hy Power Corporation:

Daniel H. Thompson, Esquire

Berger, Davis & Singerman

215 South Monroe Street, Suite 705

Tallahassee, Florida 32301

For Respondent Department of Environmental Protection:

Andrew Zodrow, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

Whether Southern Hy Power Corporation (Hy Power) has

provided reasonable assurance, based on plans, test results, or

other information, that its proposed h y droelectric facility will

comply with the Management and Storage of Surface Water (MSSW)

statutes and rules of Southwest Florida Water Management District

(SWFWMD) and the Wetland Resource Management permit (WRM)/water

quality certification statutes and rules of the Florida

Department of Environmental Protection (DEP).

PRELIMINARY STATEMENT

Hy Power applied to DEP on August 31, 1993, for a WRM

pe r mit/water quality certification to construct a hydroelectric

f a cility on the Inglis By-Pass Channel immediately to the south

of the spillway located on the Inglis Bypass Channel within the

Town of Inglis, Levy County, Florida. On January 5, 1998, DEP

issued a Notice of Denial of the Environmental Resource Permit.

The re a sons for the denial included a finding that the

application was incomplete and that the applicant failed to

provide reasonable assu r ances that the proposed project would

comply with the MSSW prov i sions of Part IV of Chapter 373,

Florida Statutes, and the rules adopted thereu n der.

In response to the notice of denial, Hy Power filed on

Jan u ary 20, 1998, a motion for extension of time to file a

petition for administrative proceeding to challenge the denial.

In add i tion, on August 4, 1998, Hy Power filed with DEP an

application for a MSSW permit. On November 6, 1998, DEP issued a

Notice of Intent to Issue MSSW permit application number 38-

0129249-002 to Hy Power to construct and operate its proposed

hydroelectric f a cility. On December 21, 1998, DEP issued a

Notice of Intent to issue WRM permit application number 38-

2370696-3.001 for the pr o posed facility.

On November 21, 1998, Ms. Berger filed a petition for formal

administrative proceedings objecting to DEP’s intent to issue the

MSSW permit to Hy Power. On November 23, 1998, the Campbells

filed a petition also challenging DEP’s intent to issue the MSSW

permit. On February 2, 1999, the Cam p bells filed a petition

challenging that intent. DEP r e ferred the petitions to DOAH. On

February 8, 1999, Ms. Berger also filed a petition for formal

administrative pr o ceedings objecting to DEP’s intent to issue the

WRM permit to Hy Power to construct the facility. On March 18,

1999, an order was entered consolidating the four petitions.

WITNESSES

Hy Power called the following witnesses: Richard Volkin,

who was accepted as an expert in the areas of engineering and

dra w ing, construction and operation of hydroelectric facilities,

i n cluding analysis of environmental impacts associated with such

facilities; and Douglas Smith, who was accepted as an e x pert in

the area of environmental engineering with special expe r tise in

geology and hydrogeology.

DEP called the following witnesses: Ken Huntington, who was

accepted as an expert in the areas of Environmental Resource

Pe r mitting criteria, and environmental impacts of dredge and fill

projects and activities; Randy Cooper, who was accepted as an

expert in the areas of civil engineering, surface water h y drology

and MSSW permitting criteria; Mercily Toledo, who was accepted

as an expert in the areas of enviro n mental impacts of dredge and

fill activities and wetland resource management permitting

criteria; Eric Shaw, who was a c cepted as an expert in Outstanding

Florida Water (OFW) water body classifications; Joe May, who was

accepted as an expert in the areas of geology and hydrogeology;

Mary Duncan, who was accepted as an e x pert in the areas of

permitting issues with respect to impacts on the West Indian

Manatee and the activities regulated by DEP; and Louie

Wainwright, who is the administrator of field operations for the

DEP Office of Greenways and Trails.

Petitioners called the following witnesses: Linda Sloan,

who was accepted as an expert on the requirements of the

Comprehe n sive Plan of Inglis and Levy County; Stephen Wilson, who

was accepted as an expert in the field of land surveying; James

C. Bitter, who was accepted as an expert in occup a tional safety

and technology; Bill Edwards, who was a c cepted as an expert in

the areas of coffer dams and construction of concrete structures

in aquatic and semi-aquatic environments; Stephen Boyes, who was

accepted as an expert in g e ology and hydrogeology; Gary Maidhof,

who was accepted as an expert in the Citrus County Manatee

Protection Plan; David Gammon, who is Manager of Purchase Power

Resources for Florida Power Corporation; Kenton Lambert, who is a

mai n tenance and construction specialist for the DEP office of

Gree n ways and Trails; Bessie Campbell, one of the Petitio n ers;

and Sarah E. Berger, one of Petitioners.

EXHIBITS

The parties entered 12 joint stipulated exhibits into

ev i dence. Hy Power entered 12 e x hibits at hearing and one late-

filed exhibit after the hearing had adjourned. DEP entered eight

exhibits into evidence. Petitioners entered 15 exhibits into

evidence, and proffered one exhibit, a Land Surveyor’s Drawing,

which was not accepted into evidence.

PREHEARING STIPULATION

The parties filed a Joint Prehearing Stipulation on or about

September 22, 1999, which stipulated certain issues of law and

fact that described the parties to this proceeding and the

pro j ect that is at issue. These stipulations are included or

inco r porated by reference as findings of fact and conclusions of

law in this Recommended Order.

STIPULATED ISSUES OF LAW

The parties stipulated that pre-Environmental/Resource

Permitting statutes and rules (ERP) are applicable to these WRM

and MSSW permit proceedings. The following pre-ERP statutes and

rules are being utilized, relevant portions of which are set

forth below in Section 403.918, Florida Statutes (1991); and

Chapter 40D-4, Florida Administrative Code (in effect prior to

October 3, 1995) along with Basis of Review incorporated therein.

The parties also stipulated to the following:

Jurisdiction

The Di vision of Administrative Hearings has

juri s diction over the parties to and the subject matter

of this proceeding pursuant to Chapter 120, Florida

Statutes.

MSSW and WRM Permitting Criteria Generally

Since Hy Power filed its WRM permit application on

August 31, 1993, the statutes and rules applicable to

this proceeding are those which were in effect prior to

the promulgation of Environmental Resource Permitting

Rules by DEP on October 3, 1995, as described more

fully below. See Section 373.414(9), Florida Statutes.

MSSW Permitting Criteria

The criteria for review for the MSSW permit is

contained in Rule 40D-4.301, F.A.C., as it existed on

or before October 3, 1995, which stated as follows:

40D -4.301 Conditions for Issuance of

Permits.

(1) In o rder to obtain an individual

construction and operation permit under this

chapter, an applicant must give reasonable

assurances that the surface water management

system:

(a) provide adequate flood protection

and drainage,

(b) will not cause adverse wat er quality

and quantity impacts on receiving waters and

adjacent lands regulated pursuant to Chapter

373, Florida Statutes,

(c) will not cause discharges which

r e sult in any violation, in surface waters of

the state, of the applicable standards and

crit e ria of Chapter17-3, and Rule 17-4.242,

(d) will not cause adverse impacts on

surface and groun d water levels and flows,

(e) will not diminish the capability of

a lake or other impoundment to fluctuate

through the full range established for it in

Chapter 40D-8.

(f) will not cause adverse environmental

impacts, or adverse impacts to wetlands, fish

and wildlife, or other natural r e sources,

(g)can be effectively operated and

mai n tained,

(h) will not adversely affect public

health and safety,

(i) is consistent with the requirements

of other public age n cies,

(j) will not otherwise be harmful to

w a ter resources within the District,

(k) will not interfere with the legal

rights of others as defined in Rule 17-40.07,

and

(l) is not against pub lic policy.

(2) The standards and criteria contained

in the Basis of Review adopted by reference

in Rule 40D-4.091(1) apply to the design and

performance of surface water management

sy s tems to provide the reasonable assurances

r e quired under Rule 40D-4.301(1). Other

met h ods of meeting overall objectives may be

pr o posed and may be considered in determining

whether the applicant has provided the

re a sonable assurances required by Rule 40D-

4.301(1).

DEP AUTHORITY

DEP has the authority to administer the SWFWMD

MSSW permitting rules pursuant to an interagency

agre e ment with SWFWMD and §373.026, Florida Statutes.

WRM PERMITTING CRITERIA

The criteria for the WRM permit application

a s pects of this case are governed by Chapter 403, Part

VIII, the "Warren S. Henderson Wetland Protection Act

of 1984," including Section 403.918, Florida Statutes.

(1991), which states in relevant part as follows:

(1) A permit may not be issued under

ss. 403.91-403.929 unless the applicant

pr o vides the department with reasonable

assu r ance that water quality standards will

not be violated. . . .

(2) A permit may not be issued under

ss. 403.91-403.929 unless the applicant

pr o vides the department with reasonable

assu r ance that the project is not contrary to

the public interest. However, for a project

which significantly degrades or is within an

Outstanding Florida Water, as provided by

d e partment rule, the applicant must provide

reasonable assurance that the project will be

clearly in the public interest.

(a) In determining whether a project is

not contrary to the public interest, or is

clearly in the public interest, the

depar t ment shall consider and balance the

following criteria:

1. Whether the project will adversely

affect the public health, safety, or welfare

or the property of others;

2. Whether the project will adversely

affect the conservation of fish and wildlife,

including endangered or threatened species,

or their habitats;

3. Whether the project will adversely

affect navigation or the flow of water or

cause harmful erosion or shoaling;

4. Whether the project will adversely

affect the fishing or recreational values or

marine productivity in the vicinity of the

project;

5. Whether the project will be of a

temporary or pe r manent nature;

6. Whether the project will adversely

affect or will enhance significant historical

and archaeological resources under the

prov i sions of s. 267.061; and

7. The current condition and relative

value of functions being performed by areas

affected by the proposed activity.

(b) If the applicant is unable to

ot h erwise meet the criteria set forth in this

subsection, the department, in deciding to

grant or deny a permit, shall consider

mea s ures proposed by or acceptable to the

appl i cant to mitigate adverse effects which

may be caused by the project. . . .

The WRM permitting criteria are also governed by

Rule Chapters 62-4 (Permits), 62-302 (Surface Water

Quality Standards), 62-312 (Dredge and Fill Activities)

and 62-521 (Wellhead Protection), Florida

Administrative Code.

The u se of the property to generate hydroelectric

power is compatible with Section 253.7829(2), Florida

Statutes, which states:

The development of hydroelectric power is a

compatible use of greenway land and may be

considered by the Board of Trustees of the

Internal Improvement Trust Fund as an

allo w able use within the greenways of Lake

Rou s seau and the lower Withlacoochee River,

pr o vided that such hydroelectric power

complies with all requisite state and federal

enviro n mental and water management standards.

POST-HEARING

An original Transcript has been filed with the Division of

Administrative Hearings. Both sides filed proposed findings in

the form of Proposed Recommended Orders which were read

considered. Counsel for Petitioners, John S. Clardy, withdrew as

counsel, and an order was entered striking certain of

Petitioners' pleadings as an improper and untimely effort to

adduce additional evidence relating to the credibility of

witnesses.

FINDINGS OF FACT

STIPULATED FINDINGS OF FACT

1. By Joint Prehearing Stipulation the parties agreed to

the following description of the pa r ties and the project:

PARTIES:

2. The Department of Environmental Protection (the

Department) is a government agency in the State of Florida

existing by virtue of Section 20.255, Florida Statutes, and

operating pursuant to Chapters 253, 373, 376, and 403, Florida

Statutes, and T i tle 62, Florida Administrative Code. Under an

interagency agreement with SWFWMD, the Department also implements

Title 40D, Florida Administrative Code. The Department is

located in Tallahassee, Florida, and it has a district office in

Tampa, Florida, which district includes Levy County.

3. Southern Hy Power Corporation is a Florida Corporation

whose principal offices are located at 7008 Southwest 30th Way in

Gainesville, Florida.

4. Betty Berger is an interested party with a mailing

a d dress of Post Office Box 83, Inglis, Florida.

5. The Campbells are an interested party with a mailing

a d dress of 245 Palm Street, Inglis, Florida.

6. Hy Power applied on A ugust 31, 1993, to the Department

for a WRM permit/water quality certification to construct a

h y droelectric facility on the Inglis By-Pass Channel. The

pro j ect is located in Section 12, Township 17 South, Range 16

East, within the town of Inglis in Levy County. The facility

consists of a powerhouse located on the south side of the channel

measu r ing about 28 feet wide by 115 feet long, drawing water from

the Inglis By-Pass Channel, passing it through a single-pit type

tu r bine and discharging downstream of the Inglis By-Pass Spillway

Dam.

7. Hy Power applied on August 4, 1998, to the Department

for a MSSW permit for the same proposed hydroelectric facility on

the Inglis By-Pass Channel.

DESCRIPTION OF PROPOSED PROJECT

8. The project involves the construction of an intake

structure, powerhouse, and tailrace on a 0.61-acre area located

on the south side of the existing Inglis By-Pass Spillway. The

facility will take advantage of the existing hydrostatic head

that exists on either side of the Spillway Dam, to generate

ele c tricity.

9. The powerhouse will be constructed below grade and will

contain a single megawatt turbine and generating unit. The

i n take structure will divert flows from the upstream side of the

Spillway Dam through the powerhouse and back into the By-Pass

Channel. A small one-story control building and low profile

su b station will be constructed above grade within the boundaries

of the project area.

10. The hydroelectric project is considered to be a "Run of

the River" type of facility because it can only use that water

which flows down the existing channel. The geometry of the

cha n nel restricts flow to a certain amount, therefore the project

cannot create or use flows above those that the By-Pass Channel

can provide. The overall authority for control of water levels

in Lake Rousseau and flow to the lower Withlacoochee River will

remain with the DEP.

11. Lake Rousseau was created in 1909 when the Inglis Dam

was constructed across the Withlachoochee River for the purposes

of hydroelectric generation. The dam impounds over 11 miles of

the Withlachoochee River and forms a lake approximately 3,000 to

4,000 acres in size. Prior to construction of the Barge Canal,

water released from the Inglis Dam would flow down the lower

po r tion of the Withlachoochee River about 10 miles before

entering into the Gulf of Mexico.

12. In the mid to late 1960's the Army Corps of Engineers

(ACOE) built a portion of the Cross Florida Barge Canal between

the Gulf of Mexico and Lake Rousseau. The canal severed the

Withlachoochee River dow n stream of the Inglis Dam causing its

flow to be diverted into the Barge Canal and then into the Gulf.

In order to maintain the flow of freshwater from Lake Rousseau to

the lower segment of the River, the 8,900-foot long Inglis By-

Pass Channel and Spil l way were constructed. The resulting

downstream flow ensures navigation in the lower portion of the

River and sustains its freshwater and estuarine environment.

13. The water level in Lake Rousseau is generally

mai n tained at an elevation of 27.5 feet above mean sea level

(msl) by a combination of the Inglis Dam, the Inglis Lock, which

is located in the Barge Canal, and the By-Pass Channel Spillway.

These water control features are known collectively as the Inglis

Project Works. The water levels in the lower Withlachoochee

River immediately to the west of the By-Pass spillway are close

to sea level. The resulting head provides the potential energy

needed to drive the proposed generator turbine. Under normal

conditions the majority of water released from Lake Rousseau

flows over the Spillway Dam into the lower segment of the River.

According to the DEP Office of Greenways and Trails (OGT), the

maximum capacity of the existing By-Pass Channel Spillway is

1,540 cubic feet per second. The hydroelectric project will

divert whatever flow is allowed around the existing spillway

through the turbine and back into the channel.

14. When the Cross Florida Barge Canal project was

cancelled in the 1990's, the ACOE transferred owne r ship of the

property to the State of Florida Board of Trustees, who in turn

has leased the property to the DEP for use as the Cross Florida

Greenbelt State Recreation and Conservation Area. Management of

this property, the control of river flow and lake levels, and

operation of the Inglis Project Works are exercised by the DEP's

OGT. The OGT utilizes a document entitled "Water Control Plan

for Inglis Project Works," dated September 1994, as a guide to

operating the structures. The Water Control Plan is incorporated

as part of the MSSW intent to issue.

15. On or about April 25, 1995, the Governor and Cabinet,

sitting as the Board of Trustees of the Internal Improvement

Trust Fund ("Trustees"), approved a request from Hy Power to

su b lease 0.61 acres of Greenway property at the project site for

the purpose of providing electric power. The request was

challenged by Berger and the Campbells, and resulted in an

administrative hearing held on November 3, 1995.

16. As a result of the hearing, Administrative Law Judge

Larry Sartin entered a Recommended Order on July 12, 1996, that

the Board enter an order approving execution by the DEP of the

proposed sublease and dismissing the petition of Berger and the

Campbells. The Recommended Order was approved by the Trustees in

its entirety in a Final Order dated April 12, 1996 ("Final

O r der"). Berger v. Southern Hy Power Corporation et al. , Case

No. 95-3589.

17. A copy of the Final Order is listed as an exhibit to

this Stipulation, and the Findings of Fact and Conclusions of Law

co n tained therein are adopted herein. As previously ruled by the

undersigned, the previous Final Order is res judicata as to

Petitioners in this case, who are collaterally estopped from

challenging any of the findings of fact or conclusions of law

contained in the previous Final O r der. Petitioners reserve the

right to litigate issues of fact and law not addressed in the

Findings of Fact or Conclusions of Law contained in that Final

Order with regard to the permittabi l ity of this project under the

WRM and MSSW permitting proposals, and to raise objections as to

relevance to this proceedings of any of the Findings of Fact or

Conclusions of Law in the Final Order.

18. On February 21, 1995, Hy Power filed application with

the Federal Energy Regulatory Commission (FERC) for a conduit

exemption from the licensing requirements of Part I of the

Fe d eral Powers Act (FPA) for the proposed project. Petitioners

and various other persons filed protests with FERC in opposition

to the project.

19. On April 21, 1997, FERC issued an Order Granting

Co n duit Exemption, a copy of which is listed as an exhibit to

this Stipulation. Petitioners in this case are collaterally

estopped from challenging any of the findings or conclusions

contained in that Order Granting Conduit Exemption. Petitioners

reserve the right to litigate issues of fact and law not

addressed in the Findings of Fact or Conclusions of Law contained

in that Order Granting Conduit Exemption with regard to the

permittability of this project under the WRM and MSSW permitting

proposals, and to raise objections as to relevance to this

proceedings of any of the findings or co n clusions in the Order

Granting Conduit Exemption.

FACTS ADDUCED AT HEARING

OUTLINE OF PROJECT

20. The proposed project calls for the construction of a

water retention structure along the existing By-Pass spillway,

the excavation of a large hole in which the powerhouse and

turbine would be constructed "in-the-dry" south of the existing

dam, and a millrace below the proposed project to return the

water back into the existing water course.

21. Conflicting testimony was received regarding the facts

surrounding the construction of the project. These included:

whether the proposed project will touch the existing wing walls

of the existing dam; whether the water retention structure is a

coffer dam; whether the proposed water retention structure will

safely retain the water; whether the powerhouse and turbine have

sufficient negative buoyancy to stay in the ground; whether the

proposed excavation will weaken the existing dam; and whether the

de-watering of the excavation site will adversely impact ground

and surface water.

PROJECT DESIGN AND ENGINEERING

22. Engineering for the project was directed by witness

Richard A. Volkin, a professional engineer and president and CEO

of Engineering Company, Inc., based in Canton, Massachusetts.

Mr. Volkin has extensive national and international e x perience in

the design, management, and operation of hydroelectric

facilities.

23. Other engineers in Mr. Volkin’s firm worked on the

pr o ject under Mr. Volkin’s direct supervision, including John

May, who became registered as a professional engineer in Florida

in order to sign and seal the engineering drawings for the

project, which he initially did around 1994. Mr. May became ill

and r e tired in 1998.

24. Because of the length of time the application process

has taken and the fact that Mr. May retired, there was a time

while the application was pending, when Hy Power's design team

was without a registered Florida engineer. When this was brought

to the attention of Hy Power, Hy Power substituted Steven

Crockett for Mr. May as the Florida-registered professional

engineer of record for the project. DEP routinely accepts an

applicant’s changing its e n gineer of record during the course of

permit application or co n struction.

25. Mr. Crockett is a civil and structural engineer who has

considerable experience in preparing dam structural designs.

Mr. Crockett independently reviewed and evaluated the engineering

drawings for the project. Mr. Crockett resealed the dra w ings by

using his drawn seal and signing the plans because his embossed

seal was not readily available and time was of the essence.

Mr. Crockett has advised DEP that he is now engine er of record

for the project, using the appropriate DEP forms.

26. Mr. Volkin’s firm performed all of the studies required

by the various agencies, including a geotechnical study of the

area, a 50-year analysis of water flow in and out of the Lake

Rousseau regime, and water quality evaluations of water in the

By-Pass Channel.

27. The ACOE performed deep hole borings of the soils

(a p proximately 36-40 feet below sea level) in the area of the

pro j ect site to determine soil stabilization conditions at the

site when they were constructing the Inglis Project Works. The

soil conditions found can reasonably be expected to be similar

today.

28. Mr. Volkin’s company also took its own eight-foot deep

surface core samples. The purpose of those samples was to verify

the ACOE data. The new core samples verified the original core

samples.

29. Mr. Volkin also reviewed the ACOE’s engineering

dra w ings developed from construction of the Spillway Dam. These

show that the dam is founded on limestone bedding that has been

stabilized with concrete. The hydroelectric facility will be

constructed adjacent to and south of the dam structure and

adjacent to and north of the barge canal. The same type of

limestone bedrock is found in the area of the proposed

construction.

30. The facility design includes an intake channel on the

upstream channel and a tailrace downstream. Those are the only

structures that will be constructed next to the By-Pass Channel.

31. The construction of the facility itself will be "in the

dry." Hy Power will use coffer dams to seal off the construction

site from the By-Pass Channel, so that there will not be water

leakage from the Channel into the construction site. Water from

the By-Pass Channel will enter the power plant when the coffer

dams are lifted and the water is a l lowed to flow into the

facility.

32. The Petitioners presented the testimony of Bill

Edwards, an individual with considerable experience in the

construction of bridges, cofferdams, and similar concrete

structures in aquatic and semi-aquatic conditions. Mr. Edwards

is a former hard-hat diver who worked all over the world and

worked in Florida for many years prior to his retirement. Based

upon his experience and expertise in construction related to

projects of this type, his testimony is credible and worthy of

consideration.

33. Mr. Edwards pointed out that if the proposed water

retention structure did not touch the wing wall of the existing

dam, it could not keep the water out and would not have the

strength that it needed to retain the water.

34. Hy Power’s witnesses explained that the retention

structure would be set close enough to the existing wing wall

that waterproofing materials could be placed between the two

structures to keep the water out. Further, that the existing

plans did not show interior bracing which would be included for

structural strength and integrity. In sum, the retention

structure will be in contact with existing dam’s wing wall, but

will be free standing and not dependent upon the strength of the

wing wall for its strength.

35. Mr. Edwards pointed out that a cofferdam by definition

has walls on all sides of the structure. The structure proposed

by Hy Power did not have walls all the way around the proposed

excavation. In rebuttal, Hy Power presented evidence that its

plans were conceptual, design drawing and not construction plans.

Hy Power represented that in actuality it would put as many walls

as were necessary to keep the water out of the hole it intended

to excavate.

a sh racks will be constructed at the intake

stru c tures to protect aquatic life and make sure that trash and

veg e tation do not enter the intake structure or go down river.

The trash rack bars will be two inches on center, which the U.S.

Fish and Wildlife Service has determined as the appropriate size

for the protection of fish.

37. The turbine blades are "double regulated," and ope r ate

generally between 60 and 90 revolutions per minute. The d e sign

enables the turbine to operate at a constant speed to gene r ate a

consistent flow of electricity, notwithstanding the fact that the

flow of the water may vary. The blade speed is not very fast,

and the 2.5-meter blades pr o vide a two to three-foot opening.

This design acts to prevent fish mortality.

38. Ther e are four ways to shut off the flow of water

through the proposed structure: close the pitch of the blades,

close the wicket gates, allow the counter balance to the wicket

gates to kick in and automatically close the gates, and close off

the main gates. This is a fail safe system ("four level

r e dundancy") designed to work upon any failure.

39. Once water goes through the generator, its velocity is

reduced to no greater than its intake rate which is a maximum of

three feet per second. This prevents the water being di s charged

from the tailrace from causing erosion. If the head of water in

the dam produces a flow exceeding three feet per second, it can

be diverted over the other dams which will be functional.

40. The power plant will be encased in con crete, except for

a small access way that enables a person to go down a set of

stairs to the plant. It will be a sealed, waterproof structure,

as required by FERC and the ACOE. This will prevent penetration

of groundwater, or flood waters in the event a ma s sive flood

overtops the plant. The only water entering the powerhouse will

be through the turbine tunnel for power ge n eration purposes.

41. Mr. Edwards pointed out that the powerhouse was a

closed structure and as such would have positive buoyancy, that

is, it would float. Mr. Edwards pointed out that the proposed

site is between the barge canal and By-Pass spillway and there is

a great deal of groundwater and potentiometric pressure in the

existing water table. In sum, there is a unlimited supply of

groundwater at the site, and powerhouse could float out of the

ground just like an empty swimming pool. Hy Power presented

rebuttal evidence that the weight of the building, the turbine,

and the water flowing through the turbine would be close to

negative buoyancy, and they would add additional weight to the

structure as necessary to keep it in place.

42. The project is designed to generate three megawatts of

electric power which is enough electricity to serve between 300

and 3000 homes, depending on usage.

43. The project is designed to be unmanned. This is common

for facilities such as this. The plant can be operated by remote

control, unlike the existing controls at the By-Pass Dam, which

are operated manually. DEP can access, monitor, and control

remotely the generator's operation to include shutting the

facility down at any time.

44. There will be remote sensors to monitor water

elev a tions. Flood protection will improve because of the ability

of DEP to manage water flow from a remote location. If there is

any major disruption, the plant will shut itself down.

45. The project is classified as "green power." In other

words, it generates natural energy without any disruption to the

environment.

46. The project will have minimal to no impact on the

env i ronment. There will be no significant changes in water

quality compared to existing conditions as a r e sult of either

construction or operation of the facility.

WRM Permit Criteria

47. Hy Power has provided reasonable assurances that the

proposed project will not cause a violation of state water

qua l ity standards of Section 403.918(a), Florida Statutes (1991).

The parties stipulated that turbidity and dissolved oxygen were

the two surface water quality issues of concern in this

procee d ing.

48. The receiving water body is the Inglis By-Pass Channel.

The Inglis By-Pass Channel is a Class III surface water. The

project is not l o cated in a OFW. While the lower Withlacoochee

River is an OFW, the OFW designation runs up the natural river

itself, and does not include the Spillway Dam, tailrace, or the

remainder of the By-Pass Channel. There would be no degradation

of water quality at the point of contact with the Withlacoochee

River OFW.

49. The DEP and FERC looked specifically at potential for

tu r bidity and dissolved oxygen in determining whether the project

would violate state water quality standards. The standards for

turbidity and dissolved oxygen will not be violated.

50. Because the By-Pass Dam is an under flow structure, a

minimum of oxygenation currently occurs as water flows through

the existing dam. The proposed project runs the water

underground through the generator; however, Hy Power will measure

the dissolved oxygen below the dam in the Lower Withlacoochee

River. In the event there is any lowering of dissolved oxygen,

Hy Power can install a "sparge ring" to reoxygenate the water

going through the turbine so that dissolved oxygen remains at

current levels.

51. No turbidity will be added to the receiving water as a

result of the project, because water velocity is low and the

structure is encased in concrete and rip-rap.

52. The only other potential for turbidity would occur when

the coffer dams are removed after construction is co m plete. The

coffer dams can be removed with the generator closed to permit

any turbidity to settle. The amount of siltation that might

occur when the generator is opened would be insignificant.

53. Where a project is not in a OFW, an applicant must

pr o vide reasonable assurance that the project will not be

contrary to public interest. See Section 403.918(2), Florida

Statutes (1991). Hy Power has provided such assurances.

54. The project will not directly affect public health,

safety or welfare, or the property of others. See Section

403.918 (2)(a)1., Florida Statutes. There are concerns relating

to the structural integrity of the proposed facility and adjacent

structures which are discussed extensively below.

55. The project will have no adverse impact upon the

co n servation of fish and wildlife, including threatened and

enda n gered species and their habitat. See Section 403.918

(2)(a)2., Florida Statutes.

56. While manatees are not likely to be found at the

pro j ect site, the installation of the trash racks will eliminate

any potential adverse impact on manatees. In fact, the racks

will be an improv e ment over the current unprotected Spillway Dam.

DEP procedures require a specific manatee control plan be

implemented to deal with site specific concerns.

57. The project will not adversely affect navigation or the

flow of the water or cause harmful erosion or shoaling. See

Section 403.918(2)(a)3., Florida Statutes.

58. The project will not adversely affect fishing or

re c reation values or marine productivity in the vicinity of the

pr o ject. See Section 403.918(2)(a)4., Florida Statutes.

59. The perm a nent project and its construction will cause

no significant environmental impacts. See Section

403.918(2)(a)5., Florida Statutes.

60. There will be no adverse impacts to significant

hi s torical and archeological resources. Section 403.918(2)(a)6.,

Florida Statutes.

61. With regard to the impact on current conditions and

relative value of functions being performed by the areas affected

by the proposed activity, there will be no negative impacts. See

Section 403.918(2)(a)7., Florida Statutes. Improvement will

result from better control of water flow at the project site,

installation of trash racks and implementation of green power.

THE FORESEEABLE ADVERSE SECONDARY OR CUMULATIVE IMPACTS

62. Potential adverse secondary impacts related to power

transmission are addressed through the fact that there is an

existing power line corridor that can be used to transmit the

electricity. Any need to change the corridor could be addressed

by subsequent DEP permi t ting. Cumulative impacts are not at

issue.

63. Mr. Gammon, with Florida Power, acknowledged that the

current electric company, presumably Florida Power, would be

r e quired by FERC to transport the electricity generated by Hy

Power over its existing corridor and poles.

64. No final decision has been made regarding how to acces s

the site with equipment during construction. Several feasible

construction options exist, and there are se v eral ways of

accessing the site with heavy equipment vehicles and without

impacting wetlands. Any final dec i sion would be subject to DEP

approval.

65. Since the project meets the public interest criteria of

Section 403.918(2)(a), Florida Statutes, and wetland impacts are

minimal, the project is permittable without the need for

mitigation. See Section 403.918(2)(b), Florida Statutes.

66. The ACOE has issued a permit for the facility. The

permit varies slightly from the DEP intent to issue in the use of

reinforced concrete rather than rip-rap on the bottom half of the

intake channel. This is to comply with ACOE prefe r ence, but the

variation has only an environmental benefit.

67. Counsel for Petitioners sought to elicit testimony from

Linda Sloan, Executive Director of the Withlacoochee Regional

Planning Council, with regard to compliance of the proposed

pro j ect with the Town of Inglis Comprehensive Plan and Land

Develo p ment Code. Such compliance is not relevant to this

proceeding. At any rate, Ms. Sloan conceded that any prohibition

that might apply in the Land Development Code to construction of

the pr o posed facility could potentially be alleviated by

exemption or variance provisions in the Code.

MSSW PERMIT CRITERIA

68. The project will provide adequate flood protection and

drainage in the conventional sense. See Rule 40D-4.301(1)(a),

Florida Administrative Code. Because the amount of impervious

area is minimal, runoff from the project will not in any way

contribute to increased flooding or adversely impact drainage

pa t terns.

69. The total amount of impervious area of the facility is

less than that of a single-family residence. SWFWMD rules do not

even require MSSW permits for single-family res i dences because

the impact is not significant. The only purpose for requiring a

MSSW permit for the project is to review the project’s potential

downstream impacts to the watershed, not stormwater runoff from

the facility itself.

70. The project will not cause adverse water quality or

w a ter quantity impacts on adjacent lands in violation of Chapter

373, Florida Statutes, or cause a discharge that violates state

water quality standards. See Rule 40 D-4.301(1)(b), Florida

Administrative Code.

71. As indicated by the WRM water quality findings above,

the project will not generally violate state surface water

quality sta n dards. See Rule 40 D-4.301(1)( c), Florida

Administrative Code.

72. The project will not generally cause adverse impact on

surface or groundwater levels or flows. See Rule 40 D-

4.301(1)(d), Florida Administrative Code.

73. Since the project is a run-of-the-river, it will not

diminish the capability of a lake or other impoundment to

fluct u ate through the full range established for it under Chapter

40D-8, Florida Administrative Code.

74. The project will not cause adverse environmental

i m pacts, or adverse impacts to wetlands, fish, and wildlife or

other natural resources.

75. The project can be effectively operated and maintained.

See Rule 40D-4.301(1)(g), Florida Administrative Code. The

project is a slow speed, low maintenance facility. The design

concept is well established and has been successfully used for

many years.

76. Possible adverse affects to public safety are discussed

below.

77. The project is consis tent with the requirements of

other public agencies. See Rule 40D-4.301(1)(i), Florida

Administrative Code.

78. Potential harm to water r e sources within the SWFWMD are

discussed below. See Rule 40D-4.301(1)(j), Florida

Administrative Code.

79. Th e proposed project generally will not interfere with

the legal rights of others. See Rule 40D-4.301(1)(k), Florida

Administrative Code.

80. The proposed project is not against public policy. See

Rule 40D-4.301(1)(l), Florida Administrative Code.

81. The project complies with the requirements contained in

the Basis of Review. See Rule 40D-4.301(2), Florida

Administrative Code.

82. There is a dispute as to whether the project was within

or at the edge of the 100-year flood plain. This dispute is

related to how one interprets the rule as it relates to the

millrace and the location of the facility which is under ground.

In the conventional sense, the project is not in the flood plain.

Further, the project is designed in such a way, that it is

waterproof if it were topped with water.

83. While in the past SWFWMD may have had concerns that the

project might cause downstream flooding, SWFWMD currently has no

such concerns, given the run-of-the-river status of the proposed

project. The operation of the project will not cause downstream

flooding.

84. The DEP included in its intent to issue, conditions

co n tained in the sublease between Hy Power and the DEP in order

to ensure that the facility would remain run-of-the-river, would

comply with the water control plan, and would otherwise comply

with the terms of the sublease. The DEP has final control over

water flow and can revoke the permit or othe r wise take

enforcement action against Hy Power if Hy Power fails to comply

with the water control plan.

GROUNDWATER IMPACTS

85. Operation of the project will not cause groundwater

contamination or otherwise have adverse groun d water impacts.

Some concerns about groundwater during excavation of the

construction site were raised. The conflicting evidence received

regarding them is discussed below.

86. An area of concern was the de-watering plan for the

project. Everyone agrees there will be some water seepage into

the construction site that will have to be pumped out. The

parties disagree regarding the amount of water that will have to

be removed. Their estimates of amount of water to be removed

vary because their estimates of size and over-all depth of the

site vary.

87. Petitioners presented credible evidence that a

potential exists for the construction site to have a large

quantity of water because of its location between two sources of

surface water (the By-Pass Channel and Barge Canal), because of

the makeup of the subsurface, and because of the depth of the

construction.

88. Hy Power credibly represents that if excessive

groundwater is found, it can address the adverse impacts through

its de-watering plan that would have to be filed with FERC and

DEP. The technology exists to address the de-watering of the

project. Such plans are routinely considered by DEP after a

construction permit is issued and before de-watering occurs.

89. There is very little evidence of sinkhole activity in

the project area, and the construction activities are not

e x pected to cause any sinkhole activity.

NOISE POLLUTION

90. Mr. Bitter expressed concerns that FERC would require

the facility to install a very loud siren that would result in

sudden noise adverse to the well-being of neighbors. Mr. Bitter

is unfamiliar with FERC siren requirements at run-of the-river

hydroelectric facilities.

91. In contrast, Mr. Volkin, who has substantial exper i ence

in this area, testified that the only alarm device that would be

required would be for the protection of the workers du r ing

construction.

92. The purpose of the alarm is to warn persons below a dam

spillway of a change in the volume of water being let out of the

impoundment. In the case of a run-of-the-river facility, the

volume is near constant, changing only gradually.

93. Therefore, even if a warning siren had to be installed

its use would be limited to significant changes in flow or

testing. This would not constitute a nuisance.

94. Further, the facility is located in the vicinity of the

Crystal River Nuclear Power Plant which has its own warning

sirens. It would be prudent to make any warning devices required

for this structure significantly different from those at the

nuclear plant and to limit their use.

DAM SAFETY AND FERC REVIEW

95. In reviewing whether Hy Power’s applications complied

with the relevant permitting criteria, the DEP took into

consi d eration the review of the facility already performed by

FERC. FERC will also be responsible for reviewing the project as

it is being co n structed.

96. Mr. Edwards also raised concerns about the structural

stability of the By-Pass Dam itself. This has been a subject of

concern by those responsible for the dam, and a survey of the

structure was conducted in 1993, referred to as the Greiner

Report.

97. The Greiner Report identified specific maintenance

problems that have been and are being addressed by the DEP.

However, DEP’s maintenance plan does not address specifically the

possibility that the weight of the dam over time has caused some

shifting in the dam.

98. Hy Power has only a few core borings and only one at

the location of the generator. Hy Power is using the ACOE’s

original borings, as confirmed by several new ones, to develop

its preliminary plans.

99. The DEP considered FERC and the ACOE as responsible

agencies for determining the structural integrity of the dam.

DEP has taken FERC’s review of this facility into consi d eration

as part of DEP’s own permitting review. It is normal for DEP to

rely on outside sources and agencies for assistance in

determining compliance with DEP pe r mitting criteria such as

public health and safety, and it is reasonable for DEP to do so

in this instance. Most states do not have the full capability to

evaluate dam safety, and so they rely on FERC and ACOE.

100. On April 21, 1997, the pro ject received a conduit

e x emption from FERC. The application process is illu s trated in

Hy Power Exhibit 11.

101. Hy Power su b mitted to DEP detailed information about

the dam, the associated stru c tures and the proposed project which

had been reviewed by FERC and the ACOE, the two agencies in the

United States who are responsible for dam stru c ture design,

control, and administration. Included in the package was the

Greiner Report and Hy Power’s review of it.

102. FERC evaluated the project, the In glis By-Pass Dam

structure, and the proximity of the project to the Dam in

relation to structural impact, upstream and downstream impacts,

water quality, and environmental issues.

103. Mr. Edwards raised concerns regarding the ability of

the limestone bedrock to sustain additional construction in the

area of proposed construction. This is a material issue in the

controversy which impacts several aspects of the proposed

construction.

104. Mr. Edwards pointed out that the barge canal channel

was constructed with the use of explosives that caused a

fracturing of limestone bedrock. He pointed out that the steel

panels, which Hy Power proposes to drive into the bedrock to

construct the water retention structure necessary to excavate the

hole into which the turbine and powerhouse would be placed, will

further fracture this bedrock. This creates two potential

dangers. It could permit water to move under and around the

bottoms of the panels, potentially scouring the loosened material

from the base of the panels and making them unstable and subject

to failure. It could weaken the entire southern wing of the

existing spillway dam. Mr. Edwards opined that this could result

in catastrophic failure of the dam or the coffer dam.

105. Such a failure would cause major destruction and loss

of life to those persons living and working in and along the

lower Withlacoochee River.

106. Hy Power presented rebuttal evidence that it could and

would, if necessary, inject concrete into the limestone to

stabilize it and avoid the concerns raised by Mr. Edwards.

107. FERC specifically evaluated concerns raised by project

opponents over the poor physical condition of the By-Pass Channel

Spillway structures, relying particularly on the 1993 Greiner

Report. FERC noted that the DEP had entered into a contract to

correct any deficiencies listed in the Greiner Report, which "did

not conclude that the deficiencies at the By-Pass Spillway

threaten downstream life and property."

108. The FERC review concluded that the dam was safe. To

ensure safety, FERC is requi r ing that Hy Power do a complete

stability analysis of the dam prior to any construction.

Articles 301 and 302 of the FERC exemption ensure that all final

drawings and specifications be submitted to FERC prior to

construction, along with a suppor t ing design report consistent

with FERC’s Engineering Guidelines; that FERC can require changes

to assure a safe and adequate pro j ect; and that Hy Power must

also submit approved coffer dam co n struction drawings and

specifications at least 30 days prior to starting co n struction.

109. FERC has its own engineering staff who will go to the

site and do their own analysis, along with the ACOE, of the dam

and structures, prior to any construction commencing. This is a

detailed design review evaluation so that the latest information

on the dam will be made known immediately prior to co n struction,

and will prevent any catastrophic event from happe n ing. Under

FERC procedures, FERC requires the applicant to obtain the DEP

permits prior to requiring applicant to submit more detailed

constru c tion designs for FERC's consideration. These more

detailed designs in turn will be su b ject to further review by DEP

and FERC.

110. It is assumed that Hy Power will comply with the post-

permitting procedures and requirements, and will present

complete, detailed construction drawings for FREC and DEP

approval. Hy Power’s failure to complete the process would

result in denial of a construction permit.

CONCLUSIONS OF LAW

111. The Division of Administrative Hearings has

jurisdi c tion over the parties to and the subject matter of this

procee d ing pursuant to Section 120.57(1), Florida Statutes.

The applicant has the burden of providing reasonable assurance

that the proposed project will not violate DEP Rules. Rule 62-

4.070(1), Florida Administrative Code; Florida Department of

Transportation v. J.W.C. Company , 396 So. 2d 778 (Fla. 1st DCA

1981).

112. The applicant's burden is "one of reasonable

assu r ances, not absolute guarantees." Manasota-88, Inc., v.

Agrico Chemical , 12 FALR 1319, 1325 (DER 1990). In assessing the

risk to resources, DEP is not required to assume a "worst case

scenario" unless such a scenario is "reasonably foreseeable."

Rudloe v. Gulf Specimen Co., Inc. v. Dickerson Bayshore, Inc. and

DER , 10 FALR 3426 (DER 1988). Reasonable assurances must deal

with reasonably foreseeable contingencies. The necessary

reaso n able assurance in a particular case that a proposed project

will comply with applicable air or water quality standards is a

mixed question of fact and law that must be made, in the final

anal y sis, by DEP. See, e.g., Sierra Club, et al. v. Department

of Env. Protection, et al ., 18 F.A.L.R. 2257, 2260 (Fla. DEP

1996); Save Our Suwannee, Inc. vs. Piechocki and Dept. of Env.

Protection , 18 F.A.L.R. 1467, 1471 (Fla. DEP 1996); VQH

Development, Inc. v. Dept. of Environmental Protection, et al .,

15 F.A.L.R. 3407, 3438 (Fla. DEP 1993); Barringer, et al v. E.

Speer and Associates, Inc., and Department of Environmental

Regulation , 14 F.A.L.R. 3660, 3667 n. 8 (Fla. DER 1992).

113. Simply raising "concerns" or speculation about what

"might occur" is not enough to carry a petitioner's burden. See

Chipola Basin Protective Group, Inc. v. Florida Department of

E n vironmental Protection , 11 F.A.L.R. 467, 480-81 (DER 1988).

Once the applicant has presented its evidence and made a

preliminary showing of reasonable assurances, the challenger must

present "contrary evidence of equivalent quality" to that

presented by the permit applicant. J.W.C. supra , 396 So. 2d at

789.

114. Thus, a permit applicant is not required by Florida

law to provide an "absolute guarantee" that a proposed project

will comply with all applicable air or water quality standards.

Piechocki , supra , 18 F.A.L.R. at 1472 (Fla. DEP 1996); Powell v.

U.S. Navy and Dept. of Env. Protection , 15 F.A.L.R. 3386, 3394

(Fla. DEP 1993).

115. No third party, merely by filing petition seeking

a d ministrative hearing, should be permitted to require an

applicant to completely prove anew all items in application "down

to [the] last detail." J.W.C. , supra , 396 So. 2d at 789. "The

Petitioner must identify the areas of controversy and allege a

factual basis for contention that the facts relied upon by the

applicant fall short of carrying the 'reasonable assurances'

burden cast upon the applicant." Id.

116. Under the system of regulation applicable to projects

of this type, the applicant obtains several permits from more

than one regulatory entity and from the same regulatory entity as

the project progresses. At the level this controversy is joined,

the applicant has not been able to address specifically each

concern raised by Petitioners; however, the applicant has

indicated that it must, in order to obtain added permits from

FERC and from DEP, present plans which do specifically address

these concerns. At this level of review, this constitutes

reasonable assurance under the regulatory scheme.

117. Rule 40D-4.301, Florida Administrative Code, requires

that in order to o b tain a permit "an applicant [for a MSSW

permit] must give re a sonable assurances" that the specific

permitting criteria will be met. As discussed in the Findings of

Fact section of this Recommended Order, Hy Power has provided

reasonable assurance that the proposed project will comply with

the MSSW permit r e quirements contained in Rule Chapter 40D-4,

Florida Administrative Code (in effect prior to October 3, 1995),

along with the Basis of Review inco r porated therein.

118. Under the permit criteria contained in Section

403.918, Florida Statutes (1991), and rules promulgated

thereunder, an applicant must first demonstrate that DEP water

quality standards will not be violated. Section 403.918(1),

Florida Statutes (1991). Hy Power has met that burden in this

proceeding.

119. Rule 62-4.242, Florida Administrative Code, applies

OFW standards to any proposed activity or discharge that is

within an OFW or signif i cantly degrades an OFW. Since discharge

from the project takes place outside of the Lower Withlacoochee

River OFW and will not significantly degrade the OFW, the OFW

permitting criteria do not apply, and DEP must determine whether

the project is not contrary to the public interest, based upon a

consideration and balancing of the seven fact tests set forth in

Section 403.918 (2)(a), Florida Statutes (1991).

120. Hy Power has provided reasonable assurance that the

proposed project is not co n trary to the public interest under

Section 403.918(2)(a), Florida Statutes (1991). This is

demonstrated both by the factual findings that there will be no

adverse impacts associated with the seven public interest

criteria, as well as the legislative findings in Section

253.7829(2), Florida Statutes, that development of hydroelectric

power is a compatible use of the project area.

121. The permitting agency cannot consider non-

environmental factors to reject a project under the "public

health, safety, or welfare or property of others" prong of the

public interest test. See Miller v. Department of Environmental

Regulation , 504 So. 2d 1325 (Fla. 1st DCA 1987); Taylor v. Cedar

Key Sewage Di s trict , 590 So. 2d 481 (Fla. 1st DCA 1991); Grove

Island, Ltd. v. Department of Environmental Regulation , 454 So.

2d 571 (Fla. 1st DCA 1984); Counsel of the Lower Keys v. Charlie

Toppino and Sons, Inc. , 429 So. 2d 67 (Fla. 3rd DCA 1983). The

public interest test is limited in scope only to environmental

impacts associated with the seven factors set forth in Section

403.918(2)(a), Florida Statutes (1991), and that list of seven

factors is exclusive and exhaustive. Vo n Wagoner v. Department of

Transportation , 18 FALR 2277, 2285 (DEP 1996), aff’d sub nom ,

Save Anna Maria, Inc., v. Department of Transportation , 700

So. 2d 113, 116 (Fla. 1st DCA 1997).

122. In particular, DEP cannot consider whether a project

complies or does not comply with a local government’s

comprehe n sive plan. Taylor , supra .; Charlie Toppino , supra .

Cf ., Florida Bay Initiative, Inc., et al. v. Fla. Dept. of

Transportation, et al ., 19 FALR 3712, 3719 (SFWMD 1997). The

issue of the proposed project’s compliance with the Inglis

comprehensive plan and land development regulations is therefore

irrelevant to this procee d ing.

123. Petitioners have argued that the engineering diagrams

prepared on behalf of Hy Power should be stricken for two

reasons: first, they were not properly dated as required by

Section 471.025, Florida Statutes; and secondly, Mr. John May,

the original project engineer, no longer has a Florida P.E.

license.

124. DEP rules do not require that engineering drawings be

dated, only that they be signed and sealed. See Rule 62-

4.050(3), Florida Administrative Code. The original drawings

were validly signed and sealed by Mr. May. The subsequent

drawings were signed and sealed by Mr. May, but he was no longer

registered in Florida. Furthermore, failure of an engineer to

date his drawings does not render them inadmissible. As stated

in Cape Development v. City of Cocoa Beach , 192 So. 2d 766, 769

(Fla. 1966), the law sets forth the procedure a professional

engineer may take to authenticate his drawings; it does not

purport to prescribe any requirements to make a drawing

admissible in ev i dence. Since the parties have stipulated that

authentication is not necessary for admissibility of documents

authentication is not at issue.

125. To the extent there was any technical d e ficiency in

the engineering drawings, they were cured by their being resealed

by Mr. Crockett, who also resealed the MSSW appl i cation so that

he would be designated as engineer of record. The Board of

Professional Engineers authorizes a successor profe s sional

engineer to adopt as his own the work of another engineer. See

Rule 61G15-27.001, Florida Administrative Code. In addition, DEP

rules authorize pe r mit modifications, see Rule 62-4.080(2),

Florida Administrative Code, and it is common for DEP to allow

engineering changes during the course of a pe r mit processing. To

require otherwise would be irrational and u n reasonable.

126. Petitioners have argued that the engineering drawings

do not have sufficient specificity to warrant a finding of

re a sonable assurance. Engineering drawings alone, however, are

not the only criteria for determining reasonable assurance.

Compare , for example, Hamilton County Commissioners v. TSI

Southeast , 12 FALR 3774, 3800 (DER 1990), aff’d sub nom , Hamilton

Co. v. State Dept. of Env. Reg. , 587 So. 2d 1378 (1st DCA 1991),

in which the Depar t ment concluded:

Although reasonable assurances can be shown

in part by having specific engineering

dra w ings and other design details in evidence

in support of an application, their absence

is not fatal to a showing of reasonable

assu r ances. Here, testimony by the

manufacturer, himself, who had extensive

experience with the installation, operation

and manufacture of such facilities as that

proposed . . . is, in the absence of evidence

to refute it, an adequate showing of

reasonable assurance that all emission

standards and the ambient air policy of DER .

. . will be met. Reasonable assurances can

be demonstrated by designs and plans stamped

appropriately by professional engineers

licensed in Florida, in part, and can also be

shown by competent expert test i mony, as was

done here.

Accord , Haile Community Association v. Fla. Rock Industries , 96

ER FALR 133 (DEP 1996).

127. Any additional information necessary to provide

reaso n able assurance that the proposed facility would comply with

the applicable permit standards can properly be provided at the

hea r ing. See McDonald v. Department of Banking and Finance , 346

So. 2d 569, 584 (Fla. 1st DCA 1977) (a petition for a formal

120.57 hearing commences a de novo proceeding , and because the

procee d ing is intended to formulate final agency action and not

to r e view action taken earlier and preliminarily, the hearing

officer may consider changes or other circumstances external to

the a p plication). See also Hamilton County Commissioners , supra ,

587 So. 2d at 1387; JWC , supra , 396 So. 2d at 787-788.

128. Petitioners have also objected to the DEP’s reliance

on FERC in determining reasonable assurance. It is entirely

appr o priate, however, for the DEP to rely on the regulatory

decisions of other agencies in making its reasonable assurance

determin a tions Save Anna, supra , 700 So. 2d at 117. While the

cited district court opinion referred to DEP’s reliance on a

permitting decision of SWFWMD, the underlying Final Order makes

clear that reliance on the public safety decision of another

agency, acting within the scope of its specific jurisdiction and

expertise, is also a p propriate:

[W]hen the Department weighs and balances

safety considerations in determining whether

proposed dredging and filling as part of a

DOT road project satisfies the [public safety

component of the] public interest balancing

test of former paragraph 403.918(2)(a) . . .,

DOT’s opinion of the safety of the design

should be given great weight and acceptance

by the Department absent compelling evidence

of error or omission. Vonwagoner , supra , 18

FALR at 2288-2289. (Emphasis added.)

There was no compelling evidence of error or omission in this

case that would justify any disregard of FERC’s determination

that the proposed project could be safely constructed.

129. No party has objected to the general and specific

co n ditions associated with the proposed permit. There is

sufficient basis in both fact and law to impose the requirements

as set forth in the general and specific conditions. Prudence

dictates that DEP require as part of the permitting and design

process, additional core borings in the area of intended

construction. This would be a source of needed information about

the stability of the limestone bedrock in that area and surface

water.

130. Because of the significant issues raised by

Petitioners and because of the catastrophic consequences of a dam

or coffer dam failure, special attention should be given to

review of the additional permits and to each of the concerns

raised by the Petitioners.

131. The sought permit, along with the incorporated ge n eral

conditions and specific conditions, to include those recommended

above, should be issued.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law set forth herein, it is

RECOMMENDED:

That the DEP enter a Final Order that i s sues the two permits

challenged in this proceedings, WRM Permit No. 38-237096-3.001

and MSSW Permit No. 38-0129249-002, subject to the conditions

contained in the Intents to Issue in the r e spective WRM and MSSW

Permits and as described in the Recommended Order.

DONE AND ENTERED this 2nd day of March, 2000, in

Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

T allahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of Marc h, 2000.

COPIES FURNISHED:

Daniel H. Thompson, Esquire

Berger Davis & Singerman

215 South Monroe Street, Suite 705

Tallahassee, Florida 32301

Andrew Zodrow, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

John S. Clardy, III, Esquire

Crider Law Firm

Plantation Point

521 West Fort Island Trail, Suite A

Crystal River, Florida 34429

Teri Donaldson, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Kathy Carter, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Bernard M. Campbell

Bessie H. Campbell

245 Palm Street

Post Office Box 159

Inglis, Florida 34449

Sarah E. Berger

Post Office Box 83

Inglis, Florida 34449

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this recommended order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.