By LEAH STRATMANN
The Clean Water Network of Florida (CWN) has taken things to the next level when they informed Phoenix Constructions Services, Inc., the company building the new airport in Panama City, of an intent to sue under a provision of the Federal Water Pollution Control Act.
The notice of intent read, “As detailed below, Phoenix Construction Services Inc. (“Phoenix”) has caused, and continues to cause, pollution and degraded water quality in the formerly pristine waters of Burnt Mill Creek, Crooked Creek, West Bay, and the surrounding wetlands. Phoenix’s activities violate its generic permit for stormwater discharge, as well as Florida law and the federal Clean Water Act. Accordingly, the following parties provide notice of their intent to sue.”
CWN cited the National Pollutant Discharge Elimination System (NPDES), which regulates the discharge of stormwater from certain municipal, industrial and construction activities. For months, CWN has accused the Florida Department of Environmental Protection (DEP) of failing to enforce code violations in the construction of the airport and even suggested collusion on the part of DEP to ignore the obvious when sheets of mud were thrown into the creeks during spring rains.
In the intent to sue letters, CWN said, “As the NPDES stormwater permitting authority, DEP is responsible for promulgating rules and regulations to govern stormwater discharge permits consistent with Section 402 of Clean Water Act and federal regulations implementing the act. Any stormwater permit, whether general or specific in nature, issued by the State of Florida under its delegated NPDES permitting authority must comply with Section 402 of the federal Clean Water Act. Additionally, federal regulations implementing the Clean Water Act, and authorizing the Environmental Protection Agency (EPA) to delegate its NPDES permitting authority to the states, impose certain conditions which are applicable to both federal and state NPDES programs.
“This permit does not relieve the permittee from liability and penalties for harm or injury to human health or welfare, animal or plant life, or property caused by the construction or operation of this permitted source; nor does it allow the permittee to cause pollution in contravention of Florida Statutes and Department rules, unless specifically authorized by an order from the Department. The permittee shall take all reasonable steps to minimize or prevent any discharge, reuse of reclaimed water, or residuals use or disposal in violation of this permit which has a reasonable likelihood of adversely affecting human health or the environment. It shall not be a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of this permit.”
On December 20, 2007, Phoenix submitted a Notice of Intent to Use Generic Permit for Stormwater Discharge from Large and Small Construction Activities for its construction project to relocate the Panama City – Bay County International Airport. The Notice of Intent indicated that the proposed project would be adjacent to West Bay via Burnt Mill Creek and Crooked Creek; Burnt Mill Creek would serve as the project’s “receiving water.” On December 27, 2007, FDEP sent a Letter of Acknowledgment, granting Phoenix permission to rely on the generic permit effective December 20, 2007 through December 19, 2012.
“In accepting and relying on the generic NPDES permit for stormwater discharge, Phoenix has agreed to comply with all applicable conditions of the permit, including those imposed by the Clean Water Act, federal regulations, and state law. The conditions in the stormwater permit are clear — Phoenix may not engage in any activities which cause pollution or degrade water quality in waters of the State of Florida.
“Phoenix is in clear violation of its generic permit for stormwater discharge. Stormwater runoff from the construction site draining into Burnt Mill and Crooked Creek, West Bay, and the surrounding wetlands contain turbidity levels significantly higher than those allowed in Florida’s water quality standards. As a result, the delicate ecosystems in these creeks and waterways have been irreparably damaged. Furthermore, as the majority of the land area in this construction site is not, and cannot be, stabilized, these violations of water quality standards are continuing, and indeed are reasonably likely to occur in the future.
“Since construction began at the airport site in 2008, stormwater runoff from the site has continued to degrade water quality in Burnt Mill Creek, Crooked Creek and West Bay. Indeed, in the seventeen months since construction at the airport site commenced, there has been a steady decline in habitat and water quality in the wetlands, marshes, creeks, streams and the estuary located in the watershed around and below the site. The parties have documented the deterioration of these waters through observations, aerial photographs, and sampling, and will continue to do so in the future. Moreover, many of the waterfront property owners on Burnt Mill and Crooked Creeks have witnessed and documented the ongoing impacts to water quality from the construction site every time there is even a minimal rain event. The torrents of mud from the site have clouded previously pristine waters, widely recognized as some of the most biologically diverse in North America. The mud has smothered fish beds and accumulated in the vast marshes that line the downstream waters from the airport site. The impact of these uncontrolled mud flows from the site — which, prior to construction, contained ancient cypress domes, quick sand, bubbling springs, crystal clear streams and a water table very near the surface of the land — is ecologically devastating.
“Finally, the parties note that actions taken to stabilize the construction site have been wholly inadequate. Indeed, the parties continue to assert that because of its unique geological features, the site cannot be stabilized. As a result, these violations of water quality criteria regularly occur at every rain event, and are reasonably likely to continue in the future.”
Copies of the intent to sue were sent to the U.S. Attorney General, the national and regional directors of the EPA, and the Florida secretary of DEP. Linda Young, director of CWN, has been pushing hard for federal involvement in this matter, partly because a great deal of federal funds have been granted to build the airport. As recently as May, the Bay County Airport Authority (BCAA) was notified they had been awarded $20 million in federal funds for the airport construction.
In an e-mail, Young said, “The Governor and DEP need to publicly admit that a huge mistake has been here and the permit needs to be suspended until the situation can be sized up by a team of qualified, publicly funded experts (hydrologist, stormwater engineers, biologists, etc.). There should be no further work done or clearing until the site is absolutely stabilized. We have asked for access to the site. We are paying for this out of our tax dollars — we should have access.”
In mid-June Young wrote to Michael Sole, Secretary of the Florida’s DEP, detailing in length the concerns of CWN and many other local environmental groups. One of Young’s chief complaints about the DEP is a failure of personnel to respond to requests for information, provide copies of permits, or to take any action even when fully aware of violations reported by other members of DEP.
In part, she wrote Sole, “We have reported to DEP several times that we have good reason to believe that the airport is illegally discharging through underground or above ground pipes from onsite holding ponds to offsite woods, wetlands and/or channels and creeks. In a meeting with Dick Fancher (DEP’s Pensacola District office manager), we asked DEP to do an inspection of the perimeter line to see if illegal discharges are occurring. To date we have received no information from DEP about an inspection for this purpose, or whether or not DEP can confirm or provide assurance that these discharges are not occurring. Again we have good reason to believe that they are occurring and ask DEP to fully investigate this matter.”
As of June 30, Sole has not responded to the letter from CWN.
Leah Stratmann can be contacted at firstname.lastname@example.org.