WWALS exceptions to judge’s recommended order in WWALS v. Sabal Trail & FDEP

Who could achieve standing or win a case with these criteria?

The judge’s Recommended Order applied the wrong standard as to whether the pipeline is in the public interest (Exception 25), applied an incorrect standard of proof (Exception 16), ignored the additional protections due the Outstanding Florida Waters of the Suwannee and Santa Fe Rivers (Exception 17), and ignored evidence that the granting of a Sovereign Submerged Lands Easement would adversely affect the lands under those rivers (Exception 19), not to mention the Floridan Aquifer.

In alleging WWALS does not have standing, the judge ignored a case previously cited by FDEP (Exception 23), and added an unprecedented factor of “potential injury” that would prevent associations from ever achieving standing unless they could prove the ultimate facts of the case (Exception 14).

Did the judge really mean to imply FDEP’s and Sabal Trail’s own witnesses were not competent when they upon questioning provided testimony that FDEP failed to acquire reasonable assurances that the issuance of an environmental resource permit and easement on sovereign submerged lands would not be contrary to the “public interest” (Exception 15)? If those public servants’ testimony wasn’t competent, how can those same personnel be competent to evaluate permit applications?

These are just a few of the 25 exceptions filed Monday 28 December 2015 by WWALS Counsel William R. Wohlsifer and Leighanne C. Boone. See also the WWALS video of Attorney Wohlsifer’s concluding statement in the hearing.

Here is PDF of the judge’s Recommended Order and PDF of the WWALS Exceptions. Below is the text of those exceptions.

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STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

 

 
 
 
 
Case No.: 15-4975

WWALS WATERSHED COALITION, INC.,

Petitioner,


vs.

 

SABAL TRAIL TRANSMISSION, LLC, and
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,

Respondents.

_____________________________________/

 

PETITIONER’S EXCEPTIONS TO THE RECOMMENDED ORDER

Pursuant to section 120.57(k), Florida Statutes, Petitioners WWALS WATERSHED COALITION, INC., (“WWALS”) submit these exceptions to the Recommended Order in the above-captioned case.

Exceptions to Preliminary Statement

Exception 1 — Incorrectly Weighed Evidence Provided by Expert Witness Willard Randall

Page 3 of the Recommended Order lists Willard Randall as a lay witness. However, Mr. Randall was accepted by the court as an expert welder. (V, 480, 5-6) Therefore, his sworn testimony of the difficulty in detecting leaks, maintenance and repair of natural gas pipelines should be treated as that of that of an expert, not of a lay witness.

Exceptions to Findings of Fact

Exception 2 — Failed to Address the Impact and Use of Grouting Material

Paragraph 14 of the Recommended Order states that the “mud” used to lubricate while conducting Horizontal Directional Drilling (“HDD”) is a “non-toxic . . . bentonite clay,” and therefore, will have little effect on water quality. However, the order fails to address that the grouting material that will be necessary along the route to seal karst conduits. Dale Jenkins, bureau chief for the bureau of project management with the St. Johns River Water Management District, and former Senior Hydrogeologist for the Suwannee River Water Management District, stated that he could not predict the impacts of grouting along the pipeline because the material for grout is often “different than a bentonite slurry.” (VI, 604, 1) Furthermore, Greg Jones, Sabal Trail’s expert Geologist, was not able to describe what grouting material would be used during the pipeline construction process. (VI, 671, 6-21) Finally, the ultimate decision-maker for the Florida Department of Environmental Protection (“DEP”), Lisa Mathers, did not even know what grout is or what the function of grouting does. It is incomprehensible that the state’s witness knew so little about this project, yet approved the Environmental Resource Permit (“ERP”) (III, 325-326, 22-12).

Therefore, the characterization from paragraph 14 of the Recommended Order is misleading in that it purports that only “non-toxic” materials will be entering the rivers and aquifer. The Recommended Order fails to identify all of the other materials that will come into contact with the water supply as a result of the installation of the pipeline and fails to address that the permit issuer did not consider those materials either.

Exception 3 — Misstatement that the Pipeline Runs Parallel to Existing Natural Gas Pipelines.

Paragraph 18 of the Recommended Order states that the pipeline runs parallel to two existing natural gas pipelines. However, according to Sabal Trail’s witnesses, Mary Bass, David Shammo, and David Dickson the pipeline crosses the two existing pipelines multiple times. (VI, 710-713) (I, 51, 16) (I, 89, 4) This is a material fact toward the stability of the pipelines, new and existing, that they may be affected by the crossing and proximity of another pipeline, especially in fragile karst geology.

Moreover, the proposed pipeline does not just cross existing pipelines, but it does so at multiple crossing points. (VI 710, 24-25; 711 1—15). Yet, the ultimate decision-maker and permit issuer for Florida DEP, Lisa Prather, did not even know that the proposed pipeline crossed existing pipelines even once. (III, 331, 19-21) Logic dictates that for the State’s ultimate decision-maker to be without knowledge of the fact of pipe-crossings she could not have sufficiently reviewed the applicant’s proposal, but for a cursory review. Thus, Florida DEP blindly approved the Environmental Resource Permit. The ALJ’s recommendation that the Department presented evidence in support of the “seven public interest factor (Paragraph 47 of the Recommended Order) is clearly erroneous.

Exception 4 — Misstated the Distance of the Closet Spring to the Pipeline

Paragraph 19 of the Recommended Order in error states that the closest major spring to the pipeline route is 1.7 miles away. Petitioner’s expert witness Tom Edwards, testified and demonstrated that on his property the pipeline would pass within a mile of four springs on or near his property. (II, 153, 4-13) This testimony was not rebutted. Moreover, it was collaborated by Sabal Trail’s witness, Greg Jones. (IV, 661, 13-24)

Exception 5 — Misstated the Height of the Falmouth Cave System, and therefore, Proximity to the Pipeline

Paragraph 20 of the Recommended Order states that the pipeline would be only four to six feet beneath the land surface when it passes over the Falmouth Cave system which is more than 100 feet below ground. However, Petitioner’s expert witness, Mr. Price, testified that the Falmouth Cave system is much closer to the surface in certain areas. (III, 400, 17-20; VI, 747, 19-10) This can also be seen in public records of maps of the cave system. There was no evidence of record to even remotely provide reasonable assurance that the pipeline could cross this cavernous terrain without peril. In order for Sabal Trail to mitigate crossing the Falmouth Cavern would require extensive re-routing of the pipeline. Sabal Trail is aware of this, yet offered no rebuttal of Petitioner’s expert testimony by Dennis Price that the 100′ depth was not accurate.

Exception 6 — Fails to Recognize the Unique Fragility of Karst in Hamilton and Suwannee County

Paragraph 23 of the Recommended order states that the karst terrain is common in North Florida and throughout the state. However, the Recommended Order fails to address the especially fragile nature of the karst geology in Hamilton and Suwannee County due to the acidic nature of the rivers in those areas. Petitioner’s and Respondent’s expert witnesses testified to the especially fragile characteristics of the particular karst geology in question. (Price, III, 399-401; 427, 3-24), (Jones, VI, 654 -655)

Paragraph 24 of the Recommended Order states the karst can support the weight of Interstates 10 and 75 without collapses occurring in the underlying limestone. This conclusion by the court is based on facts not in evidence. Respondent’s expert witness Greg Jones, made a similar statement, but then acknowledged that unlike the roads, this pipeline would be subterranean and would not have the support of a sizable road bed to ensure stability. (VI, 684, 16-24)

Exception 7 — Erroneously Finds that a Sinkhole Would Not affect the Stability of the Pipeline

Paragraph 26 of the Recommended Order states that the design specification provide reasonable assurance that the formation of a sinkhole along the path of the pipeline would not cause it to break. This conclusion by the court assumes facts not in evidence. Nor does it speak to the magnitude or speed at which a sink hole would open up. Dennis Price, expert geologist, spoke to the high occurrence of sinkhole activity and instability of the area around the Suwannee and Santa Fe Rivers and that due to the already fragile nature of the area an additional sinkhole could cause catastrophic collapse if it were to intercept one of the already weakened areas. (III, 390, 7-15; 394, 10-19; 399-402 generally; III, 406, 6-11; 409, 23-25; 23-6)

Exception 8 — Finding of that it is in Sabal Trail’s Interest for the Pipeline not to Break is a Fact Not in Evidence or Relevant to this Administrative Proceeding

Paragraph 27 states that it is in the interest of Sabal Trail to build and operate the pipeline so that disruptions of service do not occur. This conclusion from the court assumes facts that are not in evidence. Furthermore, this superfluous conclusion speaks towards an intent, not an actuality as to whether reasonable assurance were provided to DEP demonstrating that the pipeline is in the public interest. Therefore, this finding is irrelevant to this proceeding and should not be adopted by the final order.

Exception 9 — Inaccurately States that WWALS presented No Adverse Impacts that have been caused by Similar Pipelines when they were Barred from Presenting such Evidence

Paragraph 29 states that WWALS presented no evidence of adverse impacts that have been caused by similar pipelines in similar areas. However, on each occasion WWALS proffered testimony or evidence of similar pipelines, the court refused to admit said evidence. When seeking to question Sabal Trail’s witnesses about crossovers of two pipelines, in relation to other similar pipelines, the ALJ stated “how many crossovers this has compared to others, a general question like that, I don’t think is relevant.” (I, 95, 13-15)

However, WWALS witness Richard Gamble presented evidence of the impacts of disturbing the topsoil of similar karst geology and the multi-million dollars in impacts that resulted to restore the stability of the land. (VI, 595, 13-14) Indeed, WWALS was prepared to show instances of explosions and unrelated mass contaminations that plague the applicant’s pipeline installation history, but the ALJ only allowed the Respondent’s to introduce evidence regarding safety. This is reversible error. This fact alone is sufficient for the agency to reject the ALJ’s Recommended Order.

The Respondents were permitted to give testimony towards the “safety” of the pipeline on numerous occasions. The final permit issuer for the project, Lisa Prather, stated that there were “no adverse impacts on health, safety, and welfare of others.” (265, 9-11) Alan Lambeth, the Spectra energy employee who oversees the design of the pipeline, stated “there are thousands of miles of pipelines safely operating in karst areas,” (VI, 725, 15-18) and that the pipe was “top-quality.” He further, insinuated that safer pipe was used in more populated areas. (VI, 722) Yet, WWALS was not permitted to respond to any of these allegations of safety.

Paragraph 40 of the Recommended Order states that Petitioner’s failed to refute safety concerns. This finding is in error as the ALJ did not allow testimony on safety and ruled in the Order dated October 15, 2015 that it was an issue preempted by federal law and no testimony was to be heard on the issue of safety at the hearing or otherwise. However, Respondent’s repeatedly opened the door by discussing the safety of the pipeline. When petitioner’s in response to Respondent’s’ opening of the door sought to introduce testimony on safety, the ALJ denied their request and stated, “your right to show error is so clear without an exhibit.” (VI, 736, 13-15) By the ALJ’s own admission, allowing safety testimony by Respondents without allowing the petitioner’s to respond constitutes reversible error. The agency should not recognize this exception and not accept this paragraph of the Recommended Order.

Exception 10 — Inaccurately accounts for the of Number to WWALS Members who would be Substantially Affected by the Installation of the Pipeline

Paragraph 30 of the Recommended Order states that only four WWALS members who were property owners were substantially affected by the pipeline, and those who were not landowners, that their adverse impacts were “vague.” However, this court stated that in order to establish standing all that was needed was “that a person has a substantial interest, and . . . that their substantial interest will be affected.” (II, 129-130, 24-2)

Paragraph 33 states that Petitioner did not establish the connection between pipeline impacts and interference with member’s use of an area waters. Florida law well establishes that the mere interference with the use and enjoyment of public waters, and in this case Outstanding Florida Waters, is sufficient to establish sufficient injury for standing. Furthermore, the ALJ stated that the “use” of public lands and waterways is a basis for establishing a “substantial interest.” (III, 263, 30) Associational standing has been found when substantial number of members are substantially affected. Fla. Home Builders Ass’n v. Dep’t of Labor & Emp. Sec, 412 So. 2d 351 (Fla. 1982). Twelve of the 40 WWALS members in Hamilton and Suwanee’s counties testified that they would be substantially affected by the pipeline because the pipeline would traverse the public lands and waters that they use on a regular basis.

Paragraph 37 incorrectly states that only four of the WWALS members in Hamilton and Suwannee county would be substantially affected by the pipeline. Rather, 12 of the total number of 40 members from Hamilton and Suwannee County testified that they would be substantially affected by the pipeline either by ownership of land or use of public lands and rivers through which the pipeline would pass. Therefore, the evidence established that a substantial number of members in the counties through which the pipeline would pass would be substantially affected by the pipeline.

Respondents clearly demonstrated as matter of law that a substantial number of their members will be substantially affected by the pipeline. To find otherwise would be reversible error and violate not only the extremely restrictive standing requirements for associations, but also fly in the face of the constitutional standing assured to the citizens of this nation.

Exception 11 — Application of Improper Standard Under 373.414(1), Florida Statutes

Paragraph 31 applies the incorrect standard and states that HDD operation are “unlikely” to affect . . . Residential wells. The standard under section 373.414(1), Florida Statutes, is whether reasonable assurances were provided that state water quality standards “will not be violated.” Therefore, paragraph 31, as recommended, should not be adopted by the Final Order.

Exception 12 — Failure to Recognize that the Mere Presence of Foreign Materials in the River Poses a Threat to Fish and Wildlife that Habituate the Suwannee and Santa Fe Rivers.

Paragraph 32 states that no competent evidence was presented about the possibility that HDD drilling under the rivers could result in adverse impacts to the fish and wildlife. To the contrary, the admissions identified in Exception 2 per se demonstrates that substances will come in contact with water of Outstanding Florida Waters which as a matter of documented fact are home to sensitive fish and wildlife. Furthermore, the ALJ himself stated:

If drilling fluid is a pollutant and its going to go all over the place, then that’s a cause of concern. It will go wherever it’s connected. It will follow every connection with the flow of water. (III, 463, 11-16)

Exception 13 — Failure to Acknowledge that DEP did not receive Reasonable Assurances that Installation of the Pipeline Would Adversely Affect the Property of an Organic Farmer.

Paragraph 34 states that air quality is not a cognizable issue in this proceeding. However, Petitioner’s witness demonstrated that the pipeline would adversely impact the use of his property as an organic farm, because the presence of the pipeline would result in his agricultural business having to provide air quality reports to maintain Organic Farmer status from its certifying body; a requirement that he does not presently have to meet. Therefore, DEP should have considered the impacts on his property as to whether the pipeline would adversely affect the his property pursuant to section 373.414(1)(a), Florida Statutes.

Exception 14 — Confusion of Substantial Interest Standard to Establish Standing with Proving the Ultimate Merits of the Action

In paragraphs 36, the court correctly found that a substantial number of WWALS members have substantial interest in the use and enjoyment of the water and environmental of Hamilton and Suwannee County. However, the court adds an additional, unprecedented factor of “potential injury.” Adding this additional factor to the associational standing requirements is not in the public interest and would prevent associations from ever achieving standing unless they could prove the ultimate facts of the case. As a matter of law, in order to have standing to participate as a party, a person must have substantial rights or interests that reasonably could be affected by the agency’s action. See St. Johns Riverkeeper, Inc. v. St. Johns River Water Mgmt. Dist., 54 So. 3d 1051, 105 4 (Fla. 5th DCA 2011).

Since the pipeline would traverse the lands and waters in question, in the name of justice, the final order must show that standing can be achieved even if a petitioner cannot prove the ultimate impacts of that issuance environmental resource permit. In this action, Petitioner’s had the burden to show that “reasonable assurances” were not provided to the DEP that the Environmental Resource Permit was in the public interest. Not that the issuance of the Environmental Resource Permit would not be in the public interest.

Exception 15 — Fails to Consider Petitioner’s Evidence of the Department’s Failure to Make Decisions based on Fact rather than on Incomplete and Erroneous Data provided by others.

Paragraphs 40- 47 state that “Petitioner presented no competent evidence to refute” that the installation of the pipeline would not be contrary to the seven public interest factors in section 373.414, Florida Statutes. First, this finding is in error as Petitioner clearly demonstrated through testimony of employees of the Department of Environmental Protection that the Department failed to acquire reasonable assurances that the issuance of an environmental resource permit and easement on sovereign submerged lands would not be contrary be in the “public interest.” Rather, the Department relied on erroneous and incomplete information provided by others within the Department or that were provided by Sabal Trail. They relied on such information without verification. (Prather, II, 224 -227; Means, V, 525, 17-20; 528, 14-17)

Exception 16 — Court Fails to apply the Correct Standard of Proof Required under Section 120.57(1)(j), Florida Statutes.

The findings in paragraphs 40-47 elevate the burden of proof above that required by 120.57(1)(j), Florida Statutes.

Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute, and shall be based exclusively on the evidence of record and on matters officially recognized.

Contrary to Paragraph 41, Petitioner’s presented competent evidence that the pipeline would cause adverse impacts to fish and wildlife. Contrary to Paragraph 42, Petitioner’s presented competent evidence that the pipeline would cause adverse impacts to navigation or the flow of water or cause harmful erosion or shoaling. Contrary to Paragraph 43, Petitioner’s presented competent evidence that the pipeline would cause adverse impacts to fishing or recreational values. See testimony from Thomas Edwards, Joe McClung, Merrillee Malwitz-Jipson, Christopher Mericle, Dave Kenneth Shields, Donna Ellison, Wayne Ellison, Dennis Price, Dr. Donald Thieme, Willard Randall, Carlos Heard, Guy Means, Richard Gamble, Dale Jenkins, Dana Stevens, Lorelei McCraney, Debra Johnson, Deanna Mericle and John S. Quarterman.

Exception 17 — Department of Environmental Protection Failed to Apply Additional Protections as Required when a Project is Within an Outstanding Florida Water

Paragraph 48 and 49 properly applies the heightened “clearly in the public interest” standard required for this pipeline as it would affect both the Suwanee and Santa Fe Rivers, which are Outstanding Florida Waters. However, when DEP permit issuer, Lisa Prather, was asked about what additional standards she applied in order to protect this rivers, she stated “there’s nothing different than how we would review any other project.” (III, 350, 1-2) This was an undeniable oversight or complete lack of diligence on the behalf of DEP and per se demonstrates that reasonable assurances were not provided, not even considered, that this pipeline would clearly not degrade Outstanding Florida Waters. As DEP failed to require a higher standard for the pipeline near the Outstanding Florida Waters, so too did Alan Lambeth, the designer of the pipeline, who stated, “we don’t really do a lot different in karst area.” (VI, 724, 6)

Exception 18 — Court In Error Adds the Factor of “Need” in the Public Interest Test

A need determination by the Public Service Commission is a conclusion of fact that is not in evidence nor is is relevant to the finding of this court. This court was to determine only if “reasonable assurances” were provided to DEP that the issuance of an Environmental Resource Permit and easement was “clearly in the public interest.” Therefore, the inclusion of a “need determination” in weighing the factors involved in the validity of DEP’s actions is outside the scope of this proceeding, and therefore, should be stricken from the Recommended Order.

Exception 19 — WWALS Provided Competent Evidence to Show that the granting of a Sovereign Submerged Lands Easement would not Properly Maintain those Lands as Required by rule 18-21.004(2)

Contrary to paragraph 52 of the Recommended Order, WWALS presented evidence that issuance of the easement on sovereign submerged lands would likely cause those lands to lose their essential natural condition, diminish fish and wildlife propagation, and interfere with recreational uses. See testimony from Thomas Edwards, Joe McClung, Merrillee Malwitz-Jipson, Christopher Mericle, Dave Kenneth Shields, Donna Ellison, Wayne Ellison, Dennis Price, Dr. Donald Thieme, Willard Randall, Carlos Heard, Guy Means, Richard Gamble, Dale Jenkins, Dana Stevens, Lorelei McCraney, Debra Johnson, Deanna Mericle and John S. Quarterman.

 

Exceptions to Conclusions of Law

Exception 20 — Economic Interests are Not a Factor for Standing, but are an element of the Public Interest Test, under section 373.414, Florida Statutes.

Paragraph 55 insinuates that WWALS seeks standing due to economic injury. On the contrary, WWALS standing arises from their use and enjoyment of the Santa Fe and Suwannee Rivers and their surrounding public lands, not any economic injury. However, whether DEP had reasonable assurances that the pipeline would not adversely affect fishing or recreation values goes to the merits of this proceeding. As such, WWALS’ witness, Marrillee Malwitz-Jipson, testified that she believed her eco-tourism business would be injured by the pollution or insinuation of pollution from the pipeline. (III, 243, 6-13) Her testimony calls into question whether DEP received reasonable assurances that the recreational values of would not be adversely affected.

Exception 21 — Twelve out of 40 is a Substantial Number of Members that Could be Injured, and therefore, are Substantially Affected

Paragraphs 56 correctly states that a “riverkeeper” organization cannot establish standing without demonstrating that a substantial number of its members could be injured, however, contrary to paragraph 59, WWALS contends that 12 of 40 (30%) members in Hamilton and Suwannee Counties is a substantial number for the purposes of associational standing.

Exception 22 —Petitioner Presented “good” Evidence that their Members Could be affected.

Contrary to paragraph 57, fourteen members testified that they would be substantially affected by the installation of the pipeline, either by land ownership or the use and enjoyment of the Santa Fe and Suwannee Rivers and surrounding public lands. Three expert witnesses testified specifically to what events could occur for those Outstanding Florida Waters and public lands to be affected. Paragraph 57 erroneously states that this evidence was not “good” and was speculative. Requiring the petitioner to prove beyond a reasonable doubt that they will be affected in order to establish standing would be an impossible burden that would prevent not only associations, but individuals from petitioning and seeking relief from the remedies under chapter 120, Florida Statutes.

Exception 23 — Caselaw from Menorah Manor does not Apply to this Proceeding

Paragraph 58 erroneously applies caselaw from Menorah Manor, Inc. v. Ag. for Health Care Admin., 908 So. 2d 1100, 1104 (Fla. 1st DCA 2005). As a matter of law, Menorah’s finding that reputational injury does not merit actual injury towards the merits of the case does not have any relevance to the Petitioner’s standing in this matter. Rather, the appropriate standard for determining injury for establishing standing is, “if standing is challenged during an administrative hearing, the petitioner must offer evidence to prove that its substantial rights could be affected by the agency’s action.” St. John’s Riverkeeper, Inc. v. St. Johns River Water Mgmt Dist., 54 So. 3d 1051, 1954 (Fla. 5th DCA 2011) (citing Peace River v. IMC Phosphates, 18 So. 3d 1079, 1084 (Fla. 2d DCA 2009)).

Exception 24 —Erroneously Defined “Reasonable Assurances” under Florida Law

As matter of law, paragraph 65 erroneously states that “reasonable assurance” means that the project will be “successfully implemented.” The case cited by the ALJ does not support the conclusion that “reasonable assurances” is only defined by successful implementation of a project. See Metro. Dade Cnty. v. Coscan Fla., 609 So. 2d 644, 648 (Fla. 3d DCA 1992) (where a hearing officer was ordered to reevaluate the reasonable assurances provided that a project would not violate water quality standards; reasonable assurance that the project would be successfully implemented was not enough to guarantee permit approval). Successful implementation is only one of the necessary conditions, not a sufficient condition. Stating otherwise would be a misstatement of the law.

Exception 25 — Erroneously applied the Wrong Standard as to whether the Pipeline is Clearly in the Public Interest.

Paragraph 69 erroneously states that because Sabal Tail allegedly complied with “all applicable regulatory criteria” that the pipeline therefore “clearly in the public interest.” This has never been the standard for whether an Environmental Resource Permit or Easement is in the public interest. Again, the criteria for determining whether and the Environmental Resource Permit is “clearly in” or “contrary to the public interest” are the seven factors in section 373.414, Florida Statutes.

Respectfully submitted December 28, 2015.

WILLIAM R. WOHLSIFER, PA

By: /s/ Leighanne Boone____

Leighanne C. Boone, Esq.

Fla. Bar No: 107308

1100 E. Park Ave, Ste B

Tallahassee, Florida 32301

Tel: (850)219-8888

Fax: (866)829-8174

E-mail: LBoone@wohlsifer.com

 

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was served on all parties via email as of December 28, 2015.

By: /s/ Leighanne C. Boone____

Leighanne Boone, Esq.

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