07-003151 Peter &Quot;Panagioti&Quot; Tsolkas, Palm Beach County Environmental Coalition, Alexandria Larson, Bonnie Brooks, Danny Brooks, And Peter Shulz vs. Gulfstream Natural Gas System, L.L.C. And Department Of Environmental Protection Status: Closed Recommended Order on Friday, February 8, 2008.

Summary: The Applicant provided reasonable assurances that the proposed natural gas pipeline meets the applicable regulatory criteria. Recommend that the permit be approved.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PETER "PANAGIOTI" TSOLKAS, PALM )

BEACH COUNTY ENVIRONMENTAL )

COALITION, ALEXANDRIA LARSON, )

BONNIE BROOKS, DANNY BROOKS, )

and PETER SHULZ, )

)

Petitioners, )

)

vs. ) Case No. 07 - 3151

)

GULFSTREAM NATURAL GAS SYSTEM, )

L.L.C. and DEPARTMENT OF )

ENVIRONMENTAL PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER

A duly - noticed final hearing was held in this case by

Administrative Law Judge T. Ken t Wetherell, II, on January 8 - 10,

2008, in West Palm Beach, Florida.

APPEARANCES

For Petitioners Peter “Panagioti” Tsolkas, Palm Beach

County Environmental Coalition, Bonnie Brooks, Danny

Brooks, and Peter Shulz:

Barry M. Silver, Esquire

1200 S outh Rogers Circle, Suite 8

Boca Raton, Florida 33487 - 5703

For Petitioner Alexandria Larson: 1

Alexandria Larson, pro se

16933 West Harlena Drive

Loxahatchee, Florida 33470

For Respondent Gulfstream Natural Gas System, L . L . C . :

Richard S. Brightman, Esquire

Hopping, Green & Sams, P.A.

Post Office Box 6526

Tallahassee, Florida 32314 - 6526

For Respondent Department of Environmental Protection:

Francine M. Ffolkes, Esquire

Ronald W. Hoenstine, III, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

STATEMENT OF THE ISSUE

The issue is whether the Department of Environmental

Protection should issue Enviro nmental Resource Permit No. 50 -

0269698 - 002.

PRELIMINARY STATEMENT

On June 7, 2007, the Department of Environmental Protection

(Department) gave notice of its intent to issue Environmental

Resource Permit (ERP) No. 50 - 0269698 - 001 (the initial permit) to

Gul fstream Natural Gas System, L . L . C . (Gulfstream). The initial

permit authorized the installation of a 30 - inch natural gas

pipeline across 34.30 miles in Martin and Palm Beach Counties.

On June 28, 2007, a petition for administrative hearing was

filed by Pe ter “Panagioti” Tsolkas and the Palm Beach County

Environmental Coalition (PBCEC). The petition challenged the

initial permit on a variety of grounds.

On July 11, 2007, the Department referred the petition to

the Division of Administrative Hearings (DOAH) for the

assignment of an Administrative Law Judge (ALJ) to conduct the

hearing requested by Mr. Tsolkas and the PBCEC. The referral

was received by DOAH on July 12, 2007.

The final hearing was initially scheduled for October 2 - 5,

2007, but on September 1 2, 2007, the case was placed in abeyance

upon Gulfstream’s motion so that the Department could consider

Gulfstream’s revised application modifying the pipeline route.

On October 12, 2007, the Department gave notice of its

intent to approve ERP No. 50 - 02696 98 - 002 (the proposed permit)

for the revised pipeline route. The proposed permit authorizes

the installation of a 30 - inch natural gas pipeline across 34.26

miles in Martin and Palm Beach Counties.

On November 2, 2007, a petition for hearing was filed by

M r. Tsolkas, the PBCEC, Alexandria Larson, Bonnie Brooks, Danny

Brooks, and Peter Shulz (collectively, “Petitioners”). The

petition challenges the proposed permit on a variety of grounds.

A number of the allegations in the petition were directed

to the pot ential impacts of a power plant project that will be

served by the proposed pipeline. Those allegations were

stricken as irrelevant under the ERP program. See Orders

entered on December 5, 2007, and December 27, 2007 . 2 Petitioners

were given an opportun ity to make written proffers of evidence

on the excluded issues, but they did not do so.

The final hearing was held on January 8 - 10, 2008. 3 At the

hearing, Gulfstream presented the testimony of Al Taylor, Chris

Brown (expert in pipeline design, engineerin g, and construction

methods), Kimberly Rhodes - Edelstein (expert in natural gas

pipeline permitting and impact assessment), Kristoffer Bowman

(expert in wetland and wildlife ecology, including protected

species), Dr. Kate Hoffman (expert in the analysis of potential

impacts to archaeological resources), and Dr. Gregory Hempen

(expert in vibration analysis, blast mitigation, and soil

analysis); the Department presented the testimony of Jennifer

Smith; and Petitioners presented the testimony of Mr. Shulz, Mr.

Tsolkas, James Schuette, Ms. Larson, and Dr. William Louda

(expert in biological sciences, environmental sciences, ecology,

and organic geochemistry). The following exhibits were received

into evidence: Exhibits JT - 1 through JT - 3, AT - 1 through AT - 3,

CB - 1 through CB - 3, KR - 1, KB - 1, KB - 2, KH - 1 through KH - 5, GH - 1,

GH - 2, DEP - 2, and Petitioners’ Exhibits 1, 2, and 4 through 6.

Petitioners’ Exhibit 3 was offered, but not received. Official

recognition was taken of Sections 373.413, 373.414, 373.4141,

373.416, 3 73.417, 373.421, 373.4211,373.422, 373.423, 373.426,

373.427, Florida Statutes 4 ; the rules in Florida Administrative

Code Chapter 40E that have been adopted by reference by the

Department 5 ; and the August 1995 version of the Basis of Review

for Environment al Resource Permit Applications Within the South

Florida Water Management District (BOR).

The six - volume Transcript of the final hearing was filed on

January 16, 2008. The parties were given until January 31,

2008, to file proposed recommended orders (PRO s). Gulfstream

and the Department filed PROs on January 31, 2008, and the

Petitioners represented by Mr. Silver filed a “Proposed Final

Order” on that same date. Ms. Larson did not file a PRO. The

parties’ post - hearing filings have been given due consid eration.

FINDINGS OF FACT

A. Parties

1. Mr. Tsolkas is a resident of Lake Worth, which is in

southeastern Palm Beach County. He is the co - chair of the

PBCEC, and he uses the Dupuis and J.W. Corbett Wildlife

Management Areas (WMAs) for various recreatio nal and “peace of

mind” activities. He is concerned that the proposed pipeline

will adversely impact his enjoyment of the WMAs. 6

2. PBCEC is an organization comprised of environmental

groups and individuals that are concerned about the environment

and qu ality of life in Palm Beach County. PBCEC has undertaken

public outreach, protests, and other advocacy efforts targeting

the West Coast Energy Center (WCEC) that will be served by the

proposed pipeline. No evidence was presented regarding PBCEC’s

members hip numbers.

3. Mr. Shulz is a resident of Hope Sound, which is on the

eastern coast of Martin County. He is a member of the PBCEC,

and he uses the Dupuis and J.W. Corbett WMAs for various

recreational activities. He is concerned that the proposed

pipel ine will adversely impact his enjoyment of the WMAs. He

also has concerns regarding the safety of the proposed pipeline.

4. Ms. Larson in a resident of the Loxahatchee area in

western Palm Beach County. She uses the Dupuis and J.W. Corbett

WMAs for vari ous recreational activities, and she is concerned

that the proposed pipeline will adversely impact her enjoyment

of the WMAs. She also has concerns regarding the safety of the

proposed pipeline.

5. Bonnie Brooks and Danny Brooks were not present at the

f inal hearing, and the record contains no evidence about these

Petitioners.

6. Gulfstream is a joint venture owned by Spectra Energy

Corporation and the Williams Companies and is in the business of

transporting natural gas through pipelines. Gulfstream is a

Dela ware limited liability company with its principle office in

Tampa.

7. The Department is the state agency responsible for

regulating construction activities in surface waters and

wetlands under the ERP program in conjunction with the water

managemen t districts. The Department is responsible for taking

final agency action on the proposed permit at issue in this

case.

B. The Proposed Pipeline

(1) Generally

8. The proposed pipeline is a 34.26 - mile, 30 - inch diameter

natural gas pipeline.

9. The pro posed pipeline starts in western Martin County,

slightly northwest of Indiantown, and ends in western Palm Beach

County at the site of the WCEC being constructed by Florida

Power and Light Company (FPL), just north of Twenty Mile Bend.

10. The proposed p ipeline is the third phase a pipeline

that runs from natural gas supply areas on the coasts of Alabama

and Mississippi across the Gulf of Mexico into central and

southern Florida. The entire pipeline is 691 miles long, with

approximately 240 miles in Flor ida.

11. The first phase of the pipeline began operatin g in May

2002, and the second phase began operatin g in February 2005.

The pipeline currently transports approximately 1.1 billion

cubic feet per day of natural gas into Florida.

12. The proposed pipeline begins at the existing

Gulfstream Station 712, which is referred to as milepost (MP)

0.00. It runs in a southerly direction along the east side of

the L - 65 Canal, crossing the St. Lucie Canal (at MP 6.3 4 ) and

continuing to the Martin/Palm Beach c ounty line (at MP 8.50);

then runs east to a point west of the Dupuis WMA (at MP 10.20)

and runs south along the western boundary of the Dupuis WMA

adjacent to an existing power line right - of - way; then turns

southeast (at MP 12.14) and runs on the east sid e of the L - 8

Canal; and then turns due south (at MP 30.08) and runs in an

existing FPL transmission line right - of - way to its terminus on

the WCEC site (at MP 34.26).

13. Gulfstream acquired a non - exclusive pipeline easement

from the South Florida Water M anagement District (SFWMD), which

authorizes it to install the proposed pipeline within the L - 8

and L - 65 canal rights - of - way. The agreement limits the width of

the permanent easement to 20 feet, but it provides for 95 - foot

wide temporary construction ease ments along the pipeline route.

The agreement requires the proposed pipeline to be installed at

least three feet below the surface.

14. The proposed pipeline crosses 121 artificial water

bodies. It does not cross any natural water bodies.

15. Only thr ee of the crossed water bodies – - the L - 8

Canal, the L - 65 Canal, and the St. Lucie Canal -- are navigable.

The pipeline crosses the L - 65 Canal once (at MP 0.11); the St.

Lucie Canal once (at MP 6.34); and the L - 8 Canal three times (at

MP 12.31, MP 13.28 a nd MP 29.72). The other crossed water

bodies are agricultural ditches.

16. The active land uses along the pipeline route are

primarily agricultural in nature, consisting of sugar cane

fields and sod farms. The passive land uses include the Dupuis

and J.W. Corbett WMAs, which are state - owned conservation areas.

17. There is an existing mining operation adjacent to the

pipeline route in the vicinity of MP 32.80. The mining company,

Palm Beach Aggregates (PBA), uses blasting to produce limestone

aggrega te and sand. The PBA property line is approximately 290

feet from the proposed pipeline at its closest point, but the

actual blasting is as much as “500 feet to thousands of feet

away” from the proposed pipeline.

18. The route of the proposed pipeline w as revised in

August 2007 at the request of the SFWMD and FPL.

19. The initial pipeline route was along the west sides of

the L - 65 and L - 8 Canals. SFWMD requested that the route be

shifted to the east side of the canals in order to accommodate

potential future canal expansion.

20. The initial pipeline route was along the eastern edge

of the FPL transmission line right - of - way. FPL requested that

the route be shifted to the center of the right - of - way in order

to accommodate future expansion of the trans mission line

facilities.

21. The revised pipeline route has fewer impacts than the

initial route. For example, the initial route had 224 water

body crossings, and two wetland crossings, whereas the revised

route has only 121 water body crossings, and no wetland

crossings.

22. Gulfstream submitted extensive documentation in

support of the revised pipeline route. After reviewing that

documentation, the Department gave notice of its intent to issue

the proposed permit for the revised pipeline route.

23 . Notice of the Department’s decision was published in

newspapers of general circulation -- the Stuart News in Martin

County and in the Palm Beach Post in Palm Beach County -- on or

about October 17, 2007.

(2) Design and Construction Methods

24. Federa l law prescribes minimum pipeline design

criteria, including standards for pipe wall thickness and the

testing of pipeline welds.

25. Gulfstream took a “compliance plus” approach in the

design of the proposed pipeline by going “above and beyond” the

minim um requirements in federal law in several respects.

26. First, the pipe used in the proposed pipeline will

meet or exceed the wall thickness requirements in federal law.

Thicker - walled pipe will used in areas where there is a

potential for external forc es to affect the pipe, such as under

road crossings and in the areas adjacent to PBA’s blasting

operations.

27. Second, Gulfstream will x - ray 100 percent of the

welded joints on the proposed pipeline, which far exceeds the

requirement in federal law that 10 percent of the welds be

inspected.

28. Third, Gulfstream will hydrostatically test the

prop os ed pipeline for leaks after construction is complete and

before the pipeline is put into operation. Hydrostatic testing

involves filling the pipeline with wa ter under pressure higher

than the pressure under which the pipeline will operate. A drop

in pressure during the test is an indication of a leak in the

pipeline, which will be fixed before the pipeline is put into

operation.

29. Fourth, Gulfstream will coat the entire proposed

pipeline with an anti - corrosive substance - – fusion bond epoxy -

– and the pipeline will also be induced with a small DC current

in a process known as cathodic protection. These measures will

significantly reduce, if not eliminate potential corrosion on

the proposed pipeline.

30. Gulfstream will use four construction methods to cross

the water bodies within the pipeline route: the isolation plate

open cut method; the sheet pile wet open cut method; the

horizontal directional dril l (HDD) method; and the conventional

bore method.

31. The isolation plate open cut method will be used at

each minor and intermediate water body crossing, except for

those associated with the HDD method.

32. The isolation plate open cut method involves the

installation of steel plates upstream and downstream of the

proposed crossing. The area between the plates is pumped out so

that it is essentially dry. A trench is dug in the dry area and

the pipeline is placed in the trench. The trench is then

back filled and stabilized with at least five feet of cover, and

then the plates are removed and the water flows back into the

area .

33. The sheet pile wet open cut method is similar to the

isolation plate open cut method, except that it allows water to

contin ue to flow in the center of the water body during

installation of the pipe . This method will be used for the

crossing of the L - 65 Canal, the second and third crossings of

the L - 8 Canal, and the crossings of the forebays along the L - 8

Canal.

34. Turbidity curtains or sediment barrier baffle systems

will be installed upstream and downstream of the areas where the

isolation plate open cut and the sheet pile wet open cut methods

are used in order to control turbidity.

35. The HDD method will be used to cr oss the St. Lucie

Canal and the Couse Midden archaeological site, as well as at

the first crossing of the L - 8 Canal.

36. The HDD method involves the boring of a horizontal

tunnel along a pre - determined path under the surface feature to

be avoided and the n pulling a pre - fabricated section of pipe

through the tunnel. The pipe installed using this method will

be 35 to 40 feet below the surface feature to be avoided.

37. The conventional bore method will be used to cross the

railroad track and adjacent agr icultural ditch at MP 8.46, as

well as the wetland at MP 16.65.

38. The conventional bore method involves the excavation

of bore pits on both sides of the feature to be crossed. A

tunnel is bored under the feature and then a section of pipe is

pulled th rough the tunnel. The pipe installed using this method

will be 10 feet under the railroad track, which is greater than

the depth required by federal law, and will be at least five

feet under the wetland.

C. Environmental Issues

(1) Wetlands and Vegetati on

39. The proposed pipeline will not adversely impact the

current condition or relative functions of any wetlands. All of

the wetlands within the proposed pipeline route have been

avoided.

40. The proposed pipeline will be installed under one

jurisdi ctional wetland (at MP 16.65) using the conventional bore

method described above. That wetland is a disturbed, low -

quality wetland within the actively managed L - 8 Canal right - of -

way. It is routinely mowed and provides no significant water

quality functio n or habitat value.

41. Gulfstream will install erosion control devices in

areas where the pipeline construction corridor abuts wetlands.

The erosion control devices will be in place and functional

prior to commencement of earth disturbance. Gulfstream will

utilize reinforced sediment barriers in lieu of standard

sediment barriers, and increased buffers are proposed in areas

where construction abuts wetlands on the Dupuis and J.W. Corbett

WMAs.

42. The proposed pipeline will not adversely impact liste d

plant species. No listed plant species were observed or are

likely to occur within the proposed pipeline route, which

consists of disturbed rights - of - way and agricultural areas .

43. Vegetated areas that are disturbed during the

installation of the pro posed pipeline will be re - vegetated

immediately after construction is complete. Impacts to these

areas will be minor and temporary.

44. The disturbed areas will be re - vegetated with

herbaceous cover such as bahia grass, common bermuda grass, or

annual r yegrass. The areas will be monitored for two growing

seasons to determine the success of the revegetation.

45. The proposed pipeline route includes exotic and

nuisance plant species, including Brazilian pepper, cogon grass,

water hyacinth, and water let tuce.

46. The installation of the proposed pipeline has the

potential to spread exotic and nuisance species if appropriate

precautions are not taken during construction.

47. Gulfstream has developed, and will implement an

Exotic, Nuisance, and Invasive Plant Management Plan to minimize

the potential for spreading exotic and nuisance species. The

plan requires, among other things, environmental training of

construction personnel and “routine monitoring during all phases

of construction, clean up, and res toration.” The plan also

includes procedures for onsite disposal of exotic and nuisance

species disturbed during construction and the cleaning of

vehicles and equipment to ensure that exotic and nuisance

species are not inadvertently transported to uncolo nized areas.

48. The proposed permit includes a specific condition that

requires Gulfstream to monitor and maintain the proposed

pipeline route – - a total of 214.85 acres - – free of exotic and

nuisance species for a period of five years after construction

of the pipeline is complete.

49. The easement agreement between Gulfstream and SFWMD

requires Gulfstream to relocate approximately 158 native cabbage

palm trees within the construction corridor to “suitable

locations within the west right of way of L - 8 w ithin the Palm

Beach County Department of Environmental Resources Management

wildlife corridor.”

(2) Dupuis and J.W. Corbett WMAs

50. The proposed pipeline route runs along the western

boundary of the Dupuis WMA for approximately seven miles

(between MP 13.30 and MP 20.18), and it runs along the western

boundary of the J.W. Corbett WMA for approximately 9.5 miles

(between MP 20.18 and MP 29.70).

51. The revised pipeline route puts the pipeline closer to

the boundaries of the WMAs than did the initial p ipeline route

because the route was moved from the west side of the canals to

the east side of the canals.

52. The Fish and Wildlife Conservation Commission (FWCC)

manage s the Dupuis and J.W. Corbett WMAs. The WMAs, which

include extensive wetlands and virtually no development, are

used for a variety of public recreation purposes.

53. The proposed pipeline crosses approximately 3.67 acres

of the J.W. Corbett WMA. This land, although technically within

the boundaries of WMA, is subject to an easement fo r the L - 8

Canal and has been actively managed by SFWMD for canal purposes

for at least the past 55 years.

54. Gulfstream is in the process of acquiring

approximately 3.75 acres of privately - held land within the

boundaries of the J.W. Corbett WMA that it w ill donate to the

State in accordance with the “linear facility policy” 7 as

mitigation for the crossing of the J.W. Corbett WMA.

55. The parcel that Gulfstream is in the process of

acquiring contains oak trees, pine trees, and cypress trees. It

also cont ains the last Indian mound within the J.W. Corbett WMA

that is not already in public ownership.

56. Gulfstream will install reinforced sediment barriers

and increase buffers adjacent to the wetlands on the WMAs in

order to prevent impacts to those areas d uring construction.

57. The proposed pipeline will not have any direct or

indirect impact on the Dupuis WMA.

58. The proposed pipeline’s only impact on the J.W.

Corbett WMA is the direct impact to the 3.67 acres of the WMA

that the pipeline will cross.

59. This impact is negligible in light of the size of the

J.W. Corbett WMA - – approximately 60,000 acres – - and in light

of the fact that the portion of the J.W. Corbett WMA that is

being crossed is disturbed land that has been actively used for

canal p urposes for over 55 years. Moreover, this impact will be

mitigated in accordance with the “linear facility policy.”

60. Any adverse impacts to the aesthetic qualities of the

Dupuis and J.W. Corbett WMAs will be temporary in nature during

construction. Once construction is complete, the pipeline will

not be visible from the surface.

(3) Wildlife

61. The proposed pipeline route consists of disturbed

agricultural areas and canal and utility rights - of - way, which

are low quality habitat for listed specie s and other wildlife.

62. The proposed permit is not likey to have any adverse

impact on wildlife, including listed species, or their habitat.

63. Gulfstream conducted extensive wildlife surveys during

the ERP application process. The survey corridor “extended

beyond 150 feet to either side of the pipeline centerline for a

minimum survey width of 300 feet,” and also included the

temporary work space areas, contractor yards, and aboveground

facilities associated with the pipeline.

64. The listed speci es whose potential habitat includes

the pipeline corridor are the wood stork, the Southeastern

American kestrel, the crested caracara, the bald eagle, and the

gopher tortoise and its commensal species.

65. The wood stork uses areas within and along the

p roposed pipeline corridor for resting, but not nesting or

foraging.

66. Southeastern American kestrel and crested caracara

habitat exists adjacent to the first four miles of the proposed

pipeline corridor. There is no habitat within the pipeline

corrido r itself, and no kestrels or caracaras were observed in

the adjacent habitat.

67. The nearest bald eagle nest is approximately 2,550

feet from the proposed pipeline route, which is well beyond the

660 - foot regulatory protection zone. The nest is within a

heavily wooded area of the Dupuis WMA and is not visible from

the pipeline route.

68. A total of 18 gopher tortoise burrows were observed

within the proposed p ipeline route. The burrows are located

along the berm of the L - 65 Canal between MP 0.04 and MP 1.44.

69. Relocation is FWCC’s preferred method for avoiding

impacts to gopher tortoises that inhabit a construction area.

The gopher tortoises are moved to another area during

construction, but they are free to return to the area from which

they wer e relocated after construction is completed.

70. In December 2007, FWCC issued a permit (No. WR07530a)

that allows Gulfstream to capture and relocate up to 18 gopher

tortoises. The permit also allows Gulfstream to capture and

relocate commensal species , such as the indigo snake, Florida

mouse, and gopher frog.

71. The FWCC permit addresses the listed species’ concerns

raised by James Schuette, the FWCC employee who provided

comments to the Department on the ERP application and who

testified at the fina l hearing in Petitioner’s case - in - chief. 8

72. Gulfstream successfully used gopher tortoise

relocation during construction of the first two phases of the

pipeline project.

73. Gulfstream will conduct pre - construction surveys to

ensure that no listed spe cies have moved into the proposed

pipeline route. Qualified environmental inspectors will be on -

site on a daily basis during construction to look for listed

species and to monitor compliance with the FWCC permit.

(4) Water Quality

74. The proposed pipe line will have no permanent adverse

impacts on water quality.

75. The construction of the pipeline may have minor

temporary impacts on water quality through increased turbidity

in the water bodies crossed by the proposed pipeline.

76. Gulfstream will u se turbidity curtains and other

barriers to control turbidity and minimize impacts to water

quality, and it is required to closely monitor water quality

during construction.

77. The proposed permit establishes a turbidity standard -

- 29 Nephelometric Tur bidity Units (NTUs) above backgrou nd – -

that must be maintained outside of the 150 meter “mixing zone”

established by the permit. 9 The turbidity levels within the

“mixing zone” may exceed the 29 NTU standard during

construction.

78. The construction me thods and turbidity controls used

by Gulfstream during construction will ensure that the turbidity

standards in the proposed permit are met. These methods were

successful in controlling turbidity during the construction of

the first two phases of the pipe line.

79. Gulfstream will also undertake other measures to

minimize potential water quality impacts. For example, silt

fences and hay bales will be used between spoil piles and water

bodies, and disturbed areas will be immediately vegetated to

limit the potential for sedimentation from erosion.

(5) Archeological and Historic Sites

80. Gulfstream conducted extensive cultural resource

assessment surveys as part of the ERP application process. The

surveys were conducted in a 300 - to - 400 - foot - wide corrido r around

the centerline of the entire pipeline route.

81. The purpose of the surveys was to identify “historical

resources” and “archaeological resources” in the vicinity of the

proposed pipeline. Historical resources include structures and

buildings at or on the ground surface. Archaeological resources

are partial or totaled buried cultural resources.

82. Two historical resources were identified in the

surveys: the St. Lucie Canal and the Bryant Sugar Mill. The

proposed pipeline will cross the St. L ucie Canal, and the land

in the vicinity of the Bryant Sugar Mill will be used for

parking and temporary storage of pipes.

83. The proposed pipeline will have no adverse impact on

these historical sites. The proposed pipeline will be installed

under the St. Lucie Canal using the HDD method; and there will

be no parking or material storage within 25 feet of the Bryant

Sugar Mill buildings, which themselves will not be used.

84. Two archaeological resources were identified in the

surveys: the Couse Midde n and a site known as JR - 1 that is

associated with the Belle Glade archaeological period. The

sites were described as “basically, trash, refuse areas,

possible habitation sites.”

85. The proposed pipeline will have no adverse impact on

these archaeologi cal sites. The proposed pipeline will be

installed approximately 40 feet under the Couse Midden site

using the HDD method, and the JR - 1 site will be entirely

avoided.

86. The Division of Historical Resources -- the state

agency responsible for evaluati ng the potential impacts of

construction projects on cultural resources - – concurred with

the assessment of Gulfstream’s consultant that the proposed

pipeline “will have no adverse affect on any cultural resources

listed or eligible for listing in the [Nat ional Register of

Historic Places].”

87. Gulfstream has developed, and will implement an

Unanticipated Finds Plan that includes detailed procedures to be

followed in the event that previously unreported and

unanticipated historic properties or human rema ins are found

during construction. Among other things, the plan requires

construction work in the area of the find to be stopped

immediately and not restarted until clearance is granted by the

environmental manager and archaeological consultant.

88. Ad ditionally, as noted above, Gulfstream is in the

process of acquiring a 3.75 - acre parcel within the J.W. Corbett

WMA that contains an Indian mound and that will be donated to

the State.

(6) Other Issues

89. The proposed pipeline will have no adverse impa ct on

fishing or other recreational activities in the water bodies

within the pipeline route.

90. The agricultural ditches are Class IV waters that are

not suitable for fishing or recreational activities.

91. The proposed pipeline will be installed under the St.

Lucie Canal, the L - 8 Canal, and the L - 65 Canal, which are the

only water bodies that could support fishing or recreational

activities . A ny impacts on fishing or recreational activities

in the canals w ill be minor and temporary impacts during

cons truction.

92. The proposed pipeline will not have any impact on

marine productivity because the water bodies within the proposed

pipeline route are freshwater, not marine or estuary.

93. The proposed pipeline will have no permanent adverse

impact on nav igation. The only navigable waters crossed by the

proposed pipeline are the St. Lucie Canal, the L - 8 Canal, and

the L - 65 Canal, and the proposed pipeline will be installed

under the canal bottoms.

94. There will be minor temporary impacts on the

navigab ility of the L - 8 and L - 65 C anals because those canals

will effectively be blocked while the pipeline is installed

under those canals using the sheet pile wet open cut method.

The impacts will last no more than 48 hours, which is the

maximum amount of time that it will take to complete the

crossings.

95. The proposed pipeline will not cause harmful erosion.

The vegetation on the banks of the water bodies will not be

removed until the time of pipe installation, and the area will

be immediately re - vegetate d after construction. Other erosion

control measures will also be implemented, as reflected in the

Upland Erosion Control, Revegetation, and Maintenance Plan

included as part of the ERP application.

96. The proposed pipeline will not cause harmful shoa ling.

The agriculture ditches are not flowing water bodies so they are

not subject to shoaling, and the construction in the L - 8 and L -

65 Canals will occur during the drier months when there is low

flow in the canals. After construction is complete, the

p roposed pipeline will not impede the flow of water so as to

cause shoaling because it will be buried under the bottom of the

canal.

97. Gulfstream has developed, and will implement a Spill

Prevention, Control, and Countermeasure Plan in order to reduce

t he chance for accidental spills during construction. The plan

also includes procedures to be followed in the event of a spill.

98. The easement agreement between Gulfstream and SFWMD

requires Gulfstream to pay any additional cost that SFWMD incurs

in th e installation, repair, or replacement of culverts within

the proposed pipeline route as a result of the pipeline being

located above an existing or future culvert. The agreement also

requires Gulfstream, at its expense, to promptly repair and

restore any damage to berms, levees, or other SFWMD improvements

that is caused by the construction or operation of the proposed

pipeline.

99. The proposed pipeline will not have any material

secondary impacts on wetlands or water resources. To the extent

that the WCEC project can be considered to be a secondary impact

of the proposed pipeline, its impacts on wetlands and water

resources were considered as part of the certification

proceeding for that project under the Power Plant Siting Act. 10

100. The Department d id not specifically evaluate whether

the proposed pipeline will impact the Comprehensive Everglades

Restoration Project (CERP). Its failure to do so is not

unreasonable or inappropriate because the proposed pipeline is

not located within the Everglades Na tional Park or Loxahatchee

National Refuge areas, and no concerns related to CERP were

brought to the Department’s attention by the agencies that

provided comments on the ERP application. Moreover, the

commenting agencies included SWFMD, which is actively involved

in CERP and upon whose property the proposed pipeline will be

located.

101. Petitioners expressed concerns regarding the impact

of the proposed pipeline on the Everglades and CERP. However,

t hey did not present any persuasive evidence in suppor t of these

concerns.

102. The proposed permit includes a specific condition

that prohibits Gulfstream from installing the proposed pipeline

on property that it does not own without prior written approval

of the property owner. This condition may prohibit the

installation of the pipeline across the J.W. Corbett WMA unless

Gulfstream obtains the approval of the Board of Trustees of the

Internal Improvement Trust Fund under the “linear facility

policy.”

D. Safety Concerns

103. Petitioners expressed concer ns regarding the safety

of the proposed pipeline and the potential adverse impacts to

the environment and the public if the pipeline were to explode.

104. T here is a potential for significant damage if the

proposed pipeline were to explode.

105. I t is impossible to eliminate all risk of the

pipeline exploding.

106. T he risk of an explosion has been minimized to the

greatest exten t practicable through the measures described above

that reduce the risk of leaks in the proposed pipeline through

corrosion or damage from external forces.

107. The pipe wall thickness was increased in areas

adjacent to PBA’s blasting operations even though the

conservative blast mitigation analysis prepared by Gulfstream 's

expert shows that the normal pipe wall thickness is more than

adequate to withstand the vibrations caused by PBA’s current

permitted and reasonably foreseeable blasting operations.

108. The location of the pipeline -- underground and in

existing canal and utility rights - of - way -- also serves to

minimize t he risk of accidental damage to the pipeline from

construction and development activities and hurricanes or other

natural disasters.

109. Pressure, temperature, and flow in the proposed

pipeline will be continuously monitored at a 24 - hour control

center, and the pipeline right - of - way will be visually inspected

at least once every two weeks.

110. The proposed pipeline includes “test leads”

approximately every mile that are used to assess the cathodic

protection on the pipeline.

111. The proposed pip eli ne includes two valves (at MP 0.00

and MP 14.87) that can be used to shut off the flow in the

pipeline if necessary. The “valve setting” at MP 14.87 is the

only above - ground component of the proposed pipeline other than

the valve settings at the start and end of the pipeline. The

area around the valve setting will be enclosed by an eight - foot -

high fence and covered with gravel.

112. The location of the proposed pipeline will be marked

at line - of - sight - intervals and at other key points. The markers

will clearly indicate the presence of the pipeline and provide

contact information in case of emergency or in the event of

excavation in the area of the pipeline by a third party.

113. Gulfstream has procedures in place to respond to any

emergency that may ar ise in the operation of the pipeline, as

required by federal law.

114. Gulfstream meets face - to - face with local emergency

responders on at least an annual basis to discuss emergency

response procedures. It also engages in public education and

outreach ef forts to address potential concerns regarding the

safety of the pipeline.

CONCLUSIONS OF LAW

115. DOAH has jurisdiction over the parties to and subject

matter of this proceeding pursuant to Sections 120.569 and

120.57(1), Florida Statutes.

116. Gulfstre am and the Department did not contest

Petitioners’ standing to challenge the proposed permit in the

Prehearing Stipulation, but they argue in their PROs that the

Brooks and PBCEC do not have standing. It is not necessary to

address this issue because Gulf stream and the Department concede

in their PROs (at paragraphs 58 and 64, respectively) that Mr.

Tsolkas, Ms. Larson, and Mr. Shulz proved their standing.

117. Gulfstream has the burden to prove by a preponderance

of the evidence that its permit applicati on should be approved.

See Dept. of Transportation v. J.W.C. Co., Inc. , 396 So. 2d 778,

788 (Fla. 1st DCA 1981).

118. This is a de novo proceeding, and no presumption of

correctness attaches to the Department’s preliminary approval of

the proposed permit ; however, as explained in J.W.C. Co. :

as a general proposition, a party should be

able to anticipate that when agency

employees or officials having special

knowledge or expertise in the field accept

data and information supplied by the

applicant, the sam e data and information,

when properly identified and authenticated

as accurate and reliable by agency or other

witnesses, will be readily accepted by the

[ALJ], in the absence of evidence showing

its inaccuracy or unreliability.

J.W.C. Co. , 396 So. 2d at 789.

119. Thus, if Gulfstream makes a preliminary showing of

its entitlement to the proposed permit through “credible and

credited evidence,” the ALJ may not recommend denial of the

permit “unless contrary evidence of equivalent quality is

presented by t he opponent of the permit.” Id.

120. An applicant for an ERP must provide reasonable

assurances that the proposed activity will not cause or

contribute to a violation of state water quality standards and

that it is not contrary to the public interest. S ee

§ 373.414(1), Fla. Stat.; Fla. Admin. Code R. 40E - 4.301, 40E -

4.302; BOR §§ 4.1.1, et seq.

121. Petitioners contend that Gulfstream has not provided

the requisite reasonable assurances and that the proposed permit

should be denied. 11 See Prehearing Stip ulation, at 4.

Gulfstream and the Department contend that reasonable assurances

have been provided and that the proposed permit should be

approved. Id.

122. The "reasonable assurance" standard does not require

Gulfstream to provide absolute guarantees, nor does it require

Gulfstream to eliminate all speculation concerning what might

occur if the project is developed as proposed; Gulfstream is

only required to establish a "substantial likelihood that the

project will be successfully implemented." See , e. g. , Metro

Dade County v. Coscan Florida, Inc. , 609 So. 2d 644, 648 (Fla.

3d DCA 1992); Save Our Suwanee v. Dept. of Environmental

Protection , 18 F.A.L.R. 1467, 1472 (DEP 1996).

123. In evaluating whether reasonable assurances have been

provided, it is app ropriate to look at the totality of the

circumstances surrounding the proposed activity. See Booker

Creek Preservation, Inc. v. Mobil Chemical Co. , 481 So. 2d 10,

13 (Fla. 1st DCA 1986). Permit conditions requiring mitigation

and monitoring of future imp acts may be considered in

determining whether reasonable assurances have been provided.

See Metropolitan Dade County , 609 So. 2d at 648.

124. Gulfstream provided reasonable assurances that the

proposed pipeline will not cause or contribute to a violation of

any applicable water quality standard, as required by Section

373.414(1), Florida Statutes, Florida Administrative Code Rule

40E - 4.301(1)(e), and BOR Sections 4.1.1(c) and 4.2.4, et seq.

125. The potential impacts to water quality are limited to

tempo rary impacts during construction. The operation of the

pipeline will have no adverse impact on water quality.

126. The construction methods for the proposed pipeline

will minimize the potential for adverse water quality impacts

from turbidity and sedimen tation during construction, and

measures will be implemented to prevent and address accidental

leaks of contaminants during construction.

127. Gulfstream provided reasonable assurances that the

proposed pipeline will not be contrary to the public interest ,

as required by Section 373.414(1), Florida Statutes, Florida

Administrative Code Rule 40E - 4.302(1)(a), and BOR Sections

4.2.3, et seq.

128. The “pubic interest” test requires a balanced

consideration of the following criteria:

1. Whether the activity will adversely

affect the public health, safety, or welfare

or the property of others; [ 12 ]

2. Whether the activity will adversely

affect the conservation of fish and

wildlife, including endangered or threatened

specieis, or their habitats;

3. Wheth er the activity will adversely

affect navigation or the flow of water or

cause harmful erosion or shoaling;

4. Whether the activity will adversely

affect the fishing or recreational values or

marine productivity in the vicinity of the

activity ;

5. Whether the activity will be of a

temporary or permanent nature;

6. Whether the activity will adversely

affect or will enhance significant

historical and archaeological resources . .

.;

7. The current condition and relative

value of functions bein g performed by areas

affected by the proposed activity.

§ 373.414(1)(a), Fla. Stat.

128. With respect to the first criteri on in the public

interest test, the more persuasive evidence establishes that the

proposed pipeline will not adversely affect the pu blic health,

safety, or welfare. The proposed pipeline has been sited to

avoid impacting any wetlands , and it will be located in existing

canal and utility rights - of - way and across previously disturbed

agricultural areas. Additionally, the proposed pipel ine has

been designed to meet or exceed all minimum safety standards,

and Petitioners’ speculative concerns regarding an explosion of

the pipeline were not supported by the evidence, particularly in

light of the blast mitigation analysis that shows that PB A’s

blasting activities pose no risk to the pipeline.

129. Wit h respect to the second criterion of the public

interest test, the more persuasive evidence establishes that the

proposed pipeline will not adversely affect f ish and wildlife,

including listed species, or their habitat. The proposed

pipeline route consists of disturbed areas that provide low -

quality habitat, and any impacts to wildlife will be temporary

in nature related to the construction of the pipeline.

Moreover, the impacts will be minimi zed through the wildlife

surveys that will be conducted during construction and the

gopher tortoise relocation authorized by the FWCC permit.

130. With respect to the third criteri on of the public

interest test, the more persuasive evidence establishes th at

construction of the pipeline will impact navigation of the L - 8

and L - 65 Canals, but that the impacts will be minor and

temporary ( i.e. , no more than 48 hours); that the flow of water

in the canals will be maintained during construction through the

use o f the HDD method and the sheet pile wet open cut method for

the canal crossings; that the proposed pipeline will not cause

any harmful erosion or shoaling during or after construction;

and that after the pipeline is constructed, there will be no

impacts to navigation or the flow of water because the pipelines

will be located under the bottoms of the canals.

131. With respect to the fourth criteri on of the public

interest test, the more persuasive evidence establishes that any

impacts to the fishing and rec reational activities in the canals

will be temporary during construction of the crossings; and that

there will be no impact on marine productivity because the

canals and other water bodies in the proposed pipeline route are

freshwater, not marine or estuar y.

132. Wi th respect to the fifth criterion of the public

interest test, the more persuasive evidence establishes that the

proposed pipeline will be permanent in nature, but that its

impacts will be minor and temporary in nature. The operation of

the pro posed pipeline will have no environmental impacts because

it will be underground.

133. With respect to the sixth criteri on of the public

interest test, the more persuasive evidence establishes that the

proposed pipeline will not adversely affect significa nt

historical or archaeological resources. The HDD method will be

used to install the pipeline 40 feet under the Couse Midden

archaeological site, and an adequate buffer has been provided

between the proposed pipeline and the Bryant Sugar Mill historic

si te. Additionally, Gulfstream is in the process of acquiring

the last remaining Indian mound in private ownership within the

J.W. Corbett WMA for donation to the State.

134. With respect to the seventh criteri on of the public

interest test, the more persu asive evidence establishes that the

areas directly affected by the proposed pipeline -- agricultural

fields, canal rights - of - way , and transmission line right - of - way

-- are in a disturbed condition and are of relatively low

environmental value, and that the proposed pipeline will not

have any direct, indirect, or secondary impacts on the WMAs

adjacent to the proposed pipeline route.

135. The Department is also required to consider the

“cumulative impacts” of the proposed activity under the ERP

program. See § 373.414(8)(a), Fla. Stat.; Fla. Admin. Code R.

40E - 4.302(1)(b); BOR §§ 4.2.8 through 4.2.8.2.

136. If the applicant “proposes mitigation within the same

drainage basin as the adverse impacts to be mitigated, and if

the mitigation offsets these advers e impacts, the . . .

department shall consider the regulated activity to meet the

cumulative impact requirements . . . .” § 373.414(8)(b), Fla.

Stat.

137. The mitigation proposed by Gulfstream -- removal of

exotic species within the pipeline route -- off sets the

potential adverse impacts caused by the construction of the

pipeline and will occur in the same drainage basin as the

pipeline. Therefore, pursuant to Section 373.414(8)(b), Florida

Statutes, the pipeline meets the cumulative impact requirements.

138. In sum, Gulfstream met its burden to provide

reasonable assurances that the proposed pipeline meets the

applicable regulatory criteria. The evidence presented by

Petitioners in opposition to the proposed pipline was, on

balance, considerably less p ersuasive than the evidence

presented by Gulfstream and the Department in support of the

pipeline.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions

of law, it is

RECOMMENDED that the Department issue a final order

approving ERP No. 50 - 0269698 - 002.

DONE AND ENTERED this 8th day of February, 2008, in

Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalac hee 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 8th day of February, 2008.

ENDNOTES

1 / Ms. Larson was represented by Mr. Silver up to the final

hearing, but she discharged Mr. Silver at the outset of the

final hearing and represented herself from that point forward.

See Transcript, at 26 - 29.

2 / The December 5 Order exclud ed “[e] vidence and argument

relating to the potential impacts of Florida Power and Light’s

West Coast Energy Center project that were considered and

determined in the site certification proceeding or that are not

cognizable under part IV of Chapter 373, Fl orida Statutes, and

its implementing rules.” The December 27 Order excluded

“[e]vidence and argument relating to potential impacts of

greenhouse gas emissions from the West Coast Energy Center

project on global climate change.”

3 / Petitioners filed an e mergency motion to continue the final

hearing on January 7, 2008. Gulfstream filed a response in

opposition to the motion on that same date. The motion was

denied at the outset of the final hearing. See Transcript, at

21. Several ore tenus motions for continuance made by Ms.

Larson at the final hearing were also denied. See Transcript,

at 31, 349 - 50.

4 / All statutory references in this Recommended Order are to the

2007 version of the Florida Statutes.

5 / See Fla. Admin. Code R. 62 - 330.200(4).

6 / Mr. Tsolkas and the other Petitioners also have a number of

concerns regarding the impacts of the power plant that will

served by the proposed pipeline, but those issues were

determined to be beyond the scope of this proceeding. See

Endnote 2.

7 / The pa rties did not identify the citation for the “linear

facility policy,” but it appears to be Florida Administrative

Code Rule 18 - 2.018(2)(i), which provides that “[e] quitable

compensation shall be required when the use of uplands will

generate income or reve nue for a private user or will limit or

preempt use by the general public.”

8 / Mr. Schuette provided “draft ” comments to the Department on

or about November 9, 2007. See Petitioner’s Exhibit 2. The

letter raised concerns about gopher tortoises and othe r listed

species, and it also raised concerns that are clearly outside of

FWCC’s jurisdiction, such as concerns regarding the WCEC

project. The “official” FWCC comment letter, dated December 10,

2007, was much more focused. See Petitioner’s Exhibit 1. T he

Department did not consider FWCC’s comments in its review of the

revised permit application because the letters were received

outside of the applicable 30 - day comment period. See

§ 373.4141(1), Fla. Stat. That said, Mr. Schuette testified at

the final hearing that all of the concerns raised in the

official FWCC letter have been addressed, except for the concern

regarding the “the integrity of the L - 8 levee.” Mr. Scheutte

acknowledged in his testimony that the proposed pipeline is

adjacent to the L - 8 l evee, not in the levee, and he conceded

that the operation and maintenance of the levee is the

responsibility of SFWMD, not FWCC. Moreover, the easement

agreement between Gulfstream and the District adequately

addresses this issue. See Exhibit AT - 3 (para graph 1 of easement

agreement).

9 / The 150 - meter mixing zone in the proposed permit is within

the standard range for projects of this type. See Fla. Admin.

Code R. 62 - 4.244(5)(c); BOR § 4.2.4.4.

10 / See In re Florida Power & Light Co. West County Energ y

Center Power Plant Siting Application No. PA05 - 47 , Case No. 05 -

1493EPP (DOAH Oct. 24, 2006; Siting Board Dec. 26, 2006).

11 / Petitioners argue in their “Proposed Final Order” that the

proposed permit should also be denied because the pipeline did

not go through the permitting process under the Natural Gas

Transmission Pipeline Siting Act (NGTPSA), Part VIII of Chapter

403, Florida Statutes. This issue will not be considered

because it was not raised in Petitioners’ petition challenging

the proposed perm it or in the Prehearing Stipulation. That

said, it is noteworthy that the application (Exhibit JT - 1, at

page 4 - 3) indicates that Gulfstream has applied for a

Certificate of Public Convenience and Necessity from the Federal

Energy Regulatory Commission (FE RC). If that certificate is

issued, the proposed pipeline will be exempt from the NGTPSA.

See § 403.9405(2)(c), Fla. Stat. Indeed, although not part of

the record of this proceeding, it appears that the certificate

has been issued by FERC. See Gulfstre am Natural Gas System, LLC

119 F.E.R.C. P61,250; 2007 FERC LEXIS 1048 (FERC June 7, 2007).

12 / The BOR clarifies that this criterion refers to

environmental concerns, not general public health, safety, and

welfare concerns, as argued by Petitioners at the final hearing.

See BOR § 4.2.3.1(a).

COPIES FURNISHED :

Lea Crandall, Agency Clerk

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Tom Beason, General Counsel

De partment of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Michael W. Sole, Secretary

Department of Environmental Protection

The Douglas Building

3900 Commonwealth Boulevard

Tall ahassee, Florida 32399 - 3000

Barry M. Silver, Esquire

1200 South Rogers Circle, Suite 8

Boca Raton, Florida 33487

Richard S. Brightman, Esquire

Hopping, Green & Sams, P.A.

Post Office Box 6526

Tallahassee, Florida 32314

Francine M. Ffolkes, Esq uire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Alexandria Larson

16933 West Harlena Drive

Loxahatchee, Florida 33470

NOTICE OF RIGHT TO SUBMIT EXCEPT IONS

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.