Everyone from the Atlanta Journal-Constition to the Palm Beach Post to the Ocala StarBanner considers the EPA letter to FERC to be of great significance. WWALS agrees, and has filed a motion to ask the judge to take notice in WWALS v. Sabal Trail & DEP.
§ 373.414 Florida Statutes, begins:
(1) As part of an applicant’s demonstration that an activity regulated under this part will not be harmful to the water resources or will not be inconsistent with the overall objectives of the district, the governing board or the department shall require the applicant to provide reasonable assurance that state water quality standards applicable to waters as defined in s. 403.031(13) will not be violated and reasonable assurance that such activity in, on, or over surface waters or wetlands, as delineated in s. 373.421(1), is not contrary to the public interest. However, if such an activity significantly degrades or is within an Outstanding Florida Water, as provided by department rule, the applicant must provide reasonable assurance that the proposed activity will be clearly in the public interest.
Not just “not contrary to the public interest”. For an Outstanding Florida Water applicant (Sabal Trail) “must provide reasonable assurance that the proposed activity will be clearly in the public interest.” The Suwannee River is an Outstanding Florida Water. And the EPA letter is pretty good evidence that Sabal Trail did not provide such reasonable assurance.
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
Case No.: 15-4975
WWALS WATERSHED COALITION,
SABAL TRAIL TRANSMISSION, LLC, and
DEPARTMENT OF ENVIRONMENTAL
MOTION TO TAKE JUDICIAL NOTICE OF EPA REPORT TO FERC DATED
OCTOBER 26, 2015 AND TO SUPPLEMENT THE RECORD WITH EVIDENCE
UNAVAILABLE AT THE TIME OF HEARING
COMES NOW, Petitioner, WWALS WATERSHED COALITION, INC., and moves the Department of Administrative Hearings to take judicial notice of an October 26, 2015 EPA Report and to supplement the record with this evidence that was unavailable at the time of hearing. This summary hearing in this proceeding concluded on Wednesday, October 21, 2015. On October 26, 2015, the United States Environmental Protection Agency (EPA) issued a report to the Federal Energy Regulatory Commission (FERC) objecting to the route as proposed by Sabal Trail Transmission, LLC (SABAL TRAIL) and to be permitted by the Florida Department of Environmental Protection (FDEP). EPA identifies numerous adverse impacts caused and created by the proposed pipeline which outweigh any benefit created by the purported need related to the pipeline. EPA recommends that a new route must be used due to the highly probable adverse impacts to the environment in comparison to the purported need.
This governmental document speaks directly to all issues pending before the Administrative Law Judge in these proceedings and to whether SABAL TRAIL provided reasonable assurances that its pipeline is in the public interest as required under Florida law. §373.414, Fla. Stat. The EPA Report is admissible under multiple exceptions to the hearsay rule including, but not limited to, the Public Records and Reports exception. §90.803(8), Fla. Stat. Further, the court may take judicial notice of the EPA Report under Florida Statutes §§ 90.202(5); 90.203(2). Findings of the EPA include, but are not limited to the following:
- The pipeline route is not appropriate and the risk of the environmental impact of the route outweighs any benefits;
- Numerous locations in the state of Florida are specifically identified as being at high risk and subject to profound adverse impact including areas identified by Petitioner in the hearing, including the Echo Plantation/Suwannee River HDD crossing (and surrounding areas including the State Park), the Falmouth Springs and cave system, and numerous others. The EPA Report expressly finds that there is a significant risk to the Floridan Aquifer, to essential karst formations, and to numerous other environmentally sensitive areas, including wetlands, protected State lands and conservation areas;
- The EPA Report finds that there is a meaningful risk of collapsing or cratering major rivers in the state of Florida through HDD in areas of significant karst terrain and that if this occurs the entire river flow can be altered and the aquifer for entire regions altered — the Suwannee River is specifically identified as at risk;
- The EPA Report finds that the necessary proposed remediation measures for the proposed pipeline were omitted or inadequate;
- There are numerous other findings which speak directly to the deficiency of assurances provided to FDEP that the proposed pipeline is the interest of the people and environment of Florida.
An evidentiary record may be re-opened and supplemented under Florida law. Factors the court should consider in determining whether to reopen the case to allow presentation of additional evidence include whether the opposing party will be unfairly prejudiced and whether it will serve the best interests of justice. Amador v. Amador, 796 So. 2d 1212 (Fla. 3d DCA 2001); Hernandez v. Cacciamani Dev. Co., 698 So. 2d 927 (Fla. 3d DCA 1997); Bieley v. Bieley, 398 So. 2d 932 (Fla. 3d DCA), review denied, 411 So. 2d 380 (Fla. 1981); Akins v. Taylor, 314 So. 2d 13 (Fla. 1st DCA 1975); see also Register v. State, 718 So. 2d 350 (Fla. 5th DCA 1998).
In this case, the purpose of the proceeding is to protect the rights of the people of Florida in a process that is designed to ensure that the expedited and consolidated permitting process provided to gas transmission companies sufficiently investigates and balances the needs of the people of this state for natural gas with the potential adverse impact on the state, particularly including the adverse impact on the environment. This is significant new evidence that was not available at the time of the expedited hearing. The EPA Report speaks directly to issues crucial to the hearing and to the best interests of the people of Florida, and therefore in the interest of justice, should be admitted and considered.
Petitioner recognizes that admitting the document may accord the other parties the right to be heard and/or rebut same.
A copy of the EPA Report filed with FERC is attached hereto. The undersigned respectfully moves this Court to re-open the case solely to take Judicial Notice of the EPA Report, to admit it into evidence, and to give that report due consideration its deliberations.
Respectfully submitted October 30, 2015.
Respectfully submitted by:
WILLIAM R. WOHLSIFER, PA
By: /s/ William R. Wohlsifer____
William R. Wohlsifer, Esquire
Fla. Bar No: 86827
1100 E Park Ave, Ste B
Tallahassee, Florida 32301
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served on all parties receiving electronic notification via eALJ Electronic Filing system as of October 30, 2015.
The EPA letter was included in the PDF of the WWALS Motion. The EPA letter is also available on the WWALS website.
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