Friends of Perdido Bay

10738 Lillian Highway

Pensacola, FL 32506


Tidings The Newsletter of the Friends of Perdido Bay

December 2005 Volume 18 Number 6 Jackie Lane -Editor

Some Progress

As we look back over this year, we can see that some progress has been made in our fight to clean up our bay. True, International Paper Company is still dumping in our bay an amount of pollution that is greater than the sewage from 230,000 people. BUT, they have not gotten a permit to build a pipeline to Perdido Bay. AND, they are still operating on a permit which expired in 1994. So, if you were International Paper would you invest money in a paper mill that cannot get a permit? Hope you said - NO. On the surface it seems simple. The mill is polluting Perdido Bay. It needs to stop. But getting the mill to stop gets very complicated. If the paper mill's plan was to out-wait us and hope we go away, they had better come up with a new plan. Unfortunately IP is still "taking" away the use and enjoyment of our waterfront property for their benefit. We are staying the course. See you next year. And thank you for your support.

And The Real Plan Is.....

One of the reasons I have stuck around so long is because this situation is so darn interesting. This saga of us versus the paper mill is like a very slow moving mystery novel. What will happen next? We don't know, but we do know that the players involved are very BIG.

Hopefully, everyone is aware of the plan which IP announced nearly five years ago. IP planned to partner with our local utilities authority , ECUA, and build a pipeline to a 1400 acre disposal site near Perdido Bay. ECUA was going to borrow the money to build the pipeline from Florida's Revolving Loan Fund (a fund available for public projects). IP was then going to pay "rent" for using the pipeline. IP was also going to give ECUA land to build a wastewater treatment plant on IP property and allow ECUA to dispose of their sewage on the 1400 acre disposal area which was owned by IP. This would mean that not only would Perdido Bay be getting IP's effluent but we would also be getting more effluent from ECUA. And once the pipeline was built, it would be here for at least 40 years.

All kinds of misinformation was spread about this project. One piece of bad information was that this project was going to recharge the aquifer. This was not true. Engineering studies showed that hardly any of the effluent would soak into the ground. During the summer maybe 10 to 20 percent of the effluent would evaporate, but this effluent would not recharge the aquifer. Then there was the misinformation about "wetland treatment". People envisioned a slow moving, meandering type of flow - hardly. The effluent was going to sheet flow over land and reach Perdido Bay in three days. This is the same amount of time it takes the effluent to reach Perdido Bay in Eleven Mile Creek. No folks, this pipeline plan was a way around the water quality standards in Eleven Mile Creek, which IP cannot meet. The project was also a plan, politicians felt they could support.

But is the pipeline ever going to be built? I don't think so. Why? Because in order to build the pipeline, a second permit has to be obtained by IP and ECUA. This permit is the dredge and fill permit which both the DEP (state) and Corps of Engineers (federal) have to approve. The DEP issued the dredge and fill permit nearly a year before they issued the wastewater permit, but it won't (if ever) go into effect until the wastewater permit is issued. The Corps of Engineers, however, has not approved the dredge and fill permit for the pipeline. According to the Corps, there are still issues which must be resolved. In addition, two federal agencies, Fish and Wildlife and NOAA have written letters opposing this dredge and fill permit because of the damage the project will cause to two lakes, Tee and Wicker Lakes, along the shore of Perdido Bay where IP's effluent enters the bay. So, if IP's wastewater permit were approved, but the dredge and fill permit to build the pipeline were not approved, what would happen? IP would have a wastewater permit and still be discharging to Eleven Mile Creek. And guess what? The wastewater permit has "Contingency Plans" to cover just this scenario. If ECUA backs out or there are problems with building the pipeline, then IP gets to stay in Eleven Mile Creek, in spite of the fact that they can not scientifically justify staying in the creek. This appears to be a little slight of hand. But the plot thickens.

Friends of Perdido Bay and several of the Lane family members challenged the wastewater permit in a state administrative court. This basically stops the permit from being issued until an administrative law judge determines that by issuing the permit state laws will not be violated. Evidence is taken and an administrative court is legally similar to county civil courts, except a judge, not a jury, determines the outcome from the evidence presented. Friends of Perdido Bay has obtained two attorneys who are working diligently on the case. The permit was challenged in April 2005. When a permit is challenged DEP steps aside and lets the permit applicant, IP, and the Petitioners fight it out. This is what has happened. Much legal skirmishing has been taking place. (You can reach the legal documents by clicking on the link on the site)

But nothing goes smoothly. In July of this year, IP announced that they were going to change their process and go to unbleached paper. We figured that this process change would significantly change the characteristics of their effluent and wastewater. IP said no, but they were going to come out with more details in several weeks. We waited and suspended the preparation for our case since the permit we had challenged was obviously going to change. Finally on October 17, 2005, IP presented further details about what their plans were going to be. But the plans for converting part of their process to unbleached production were vague about what limits for BOD and TSS that IP was requesting. As of the writing of this newsletter, DEP still has not come out with a revised permit based on IP's revised plans. The administrative law judge has abated the case and postponed the hearing set for March 9, 2006.

While we were waiting to get the details about IP's conversion to an unbleached process, a Notice of DEP's Intent to Issue an Air Construction permit to IP appeared in the Pensacola News Journal on October 22, 2005. The air construction permit would allow IP to increase their softwood bleach line to 1000 tons of air dried pulp a day and their daily bleached production to 1750 tons of air-dried pulp a day. The air permit said nothing about going to unbleached pulp production. I have challenged the air construction permit both on the grounds that it is going to allow more hazardous pollutants in the air and will affect the water as well. So what is going on here? Is IP going to convert to unbleached or to more bleached? We don't know and in spite of our attempts to find out, IP is being very obtuse. DEP has not yet made a decision on my request for a hearing on the air permit.

Of Beach Mice and Men

John Steinbeck could find a plot in this story. Both Perdido Key in Florida and beaches in Alabama are populated by a little nocturnal mouse. On Perdido Key, this little mouse is the Perdido Key Beach mouse. In Alabama, this mouse is the Alabama Beach mouse. These little mice are unique to these locations and are found nowhere else in the world. These mice were here before man got here. But since these mice live in a habitat which men consider valuable, the mice's future may be tenuous. These mice are considered endangered species. Men sitting on bulldozers can't see their little burrows. Asphalt parking lots can easily bury a lot of mice. So, because these little creatures are no match for bulldozers or parking lots, there is a law which protects these unique mice - The Endangered Species Act. Both the federal government and the state have rules which must be followed before men can build in areas inhabited by these mice. The rationale behind the rules is that both men and mice can live together and both species thrive. Until about two years ago, the Perdido Key beach mouse was thought to live only in the State Park areas and on Johnson's Beach on Perdido Key. But, biologists found the mouse on private land as well. Since then, most sandy areas on Perdido Key, both private and public, have been considered mouse habitat and by law must be protected. What this means is that before a person can get a permit to build on sandy areas on the Key, a person must first get an "Incidental Take" permit from the state and federal government. Florida's rules require that a person must show a benefit to the endangered species before getting a permit. This "benefit" may include putting land aside for beach mouse preservation, building on as small a footprint as possible, building off grade (which is required by code for flood restrictions), using only natural vegetation, and other plans which must be approved by both state and federal biologists.

In many cases the property on which the owner wants to build is too small to do an adequate mitigation plan. In order to satisfy the property right requirements and allow the owner to build, a fee system has been set up to hopefully protect the beach mouse and allow the owner to build. This fee is called the "in lieu of mitigation" fee. The state and federal agencies contracted with an outside firm to do an economic analysis to determine what a just and adequate fee would be. The fee which is now being proposed is: $100,000/ acre of impacted beach mouse habitat and then $201/unit/year. According to Fish and Wildlife biologists, the money collected from these fees will go to buying key property to provide habitat for the mouse, educating the public about the mouse and how to protect it, habitat restoration (building berms and walkovers), and doing surveys and monitoring to determine how the protection programs are working. Currently mitigation fees are going to a private, non-profit organization. Federal and state authorities want the local government, Escambia County, to take over the fee collection and management. Because of the controversial nature of this issue, Escambia Commissioners are reluctant. But in the meantime, getting a permit to build on Perdido Key has slowed down or in some cases stopped if the mitigation plan is not adequate. One of the big developers on Perdido Key, WCI is having a difficult time proceeding with their plans.

Personally, I believe the Perdido Key Beach mouse should be protected. It is not a rat, as one commissioner called it. Yes, there are rats (the Cotton rat) on Perdido Key which come out during the day and are not endangered . Our government's decision to subsidize flood insurance has allowed expensive building to take a lot of beach mouse habitat. Our government policies should be fair to all species on earth - men and mice.

Ester's Lawsuit

Surprisingly, this lawsuit has received very little publicity. The Conoco lawsuit which was settled in half the time as this lawsuit, received monthly updates in the media. Ester's lawsuit was filed nearly six years ago by Steve Medina, a lone attorney, for Ester Johnson. The lawsuit has gone through several versions and complaints and is currently proposed as a "class-action". The hearing on the class certification is set for June 2006. Recently, the lawsuit has become more active. Not only have several high profile attorneys joined the plaintiffs team but the Plaintiffs' attorneys are beginning to produce some of the evidence which they intend to prove damages. One of these pieces of evidence is a telephone survey done by a marketing research firm. This marketing survey was done between October 15 and October 31, 2006 and paid for by the Levin Firm. The objective of the study was "to determine the extent to which current and previous owners of waterfront property on Perdido Bay perceive that their use and enjoyment of their property on the bay had diminished between July 1996 and the present". The marketing group identified 1937 unique records and recorded 321 acceptable surveys. My husband got a call from the marketing group, but refused to answer any telephone surveys. There were a total of 13 questions asked and then comments could be made at the end. The answers to the questions were analyzed statistically. Briefly, 63% said their water contact enjoyment had been diminished since 1996 and 46% said the bay's condition was the reason for the diminished use for swimming. What struck me about the answers and comments to the survey was how many "new" people had arrived on the bay. People who had lived on the bay since the 70's realized how the bay had deteriorated. People who had moved into the area, since the 90's, were really not aware of how nice Perdido Bay can be. We hope they will some day see how beautiful the water and bottom of Perdido Bay can be.