Friends of Perdido Bay

10738 Lillian Highway

Pensacola, FL 32506


Tidings The Newsletter of the Friends of Perdido Bay

June 2002 Volume 15 Number 3 Jackie Lane -Editor

Scuttlebutt - A Plan?

We have been told by several past members of the Perdido Bay Environmental Association that International Paper is proceeding with their plans for the pipeline and wetlands. Thornton Garth, Fred Garth and David Ellis are past board members of Perdido Bay Environmental Association. Currently, they are members of the International Paper Citizens Advisory Panel. We don't know who else is on that panel. David Ellis told us recently that IP is planing to build their pipeline and discharge the effluent to property between the Perdido River and Eleven Mile Creek. The effluent will then flow overland and enter Eleven Mile Creek at point where the water is brackish. To impede the flow and increase the retention time before entering the creek, a series of four dams will be built. The water will flow through the dams through 18" pipes. According to the rather sketchy information, the water will back up enough to create shallow lakes. Approximately 400 to 600 acres will be involved in this scheme. How the water reenters Eleven Mile Creek and how erosion is prevented, is not know by us. Similarly, we have gotten no information about the amount of pollutants that such a system will remove. It will be necessary for such a system to remove a substantial amount of materials which create low oxygen in the bay. Chemicals toxic to native bay animals will be also have to be detoxified by this treatment. We have yet to see any real plans or plans we can send to a consultant so we don't know if IP's plans will be sufficient to protect the bay.

As you may have remembered in our past newsletters, the Perdido Bay Foundation has planned to hire a consultant, Dr. White from the University of South Alabama, to analyze IP's wetland plans and tell us how much pollutants will be removed by the wetlands. However IP had originally told us that they were going to built constructed wetlands which are very different from the wetlands that we are hearing about now. Constructed wetlands are engineered to remove a specific amount of material. The technique is past the point of experimentation and is a proven technology. The wetlands that IP has proposed to their citizen's advisory panel is not a definite design and probably only "their experts" will have any idea about the removal of pollutants. Why IP has decided to go in this direction is known to me? Certainly the cost difference between creating just a wetland and creating a constructed wetland is minimal once you consider the cost of the pipeline. What ever the reason, the wetland plans are disappointing and a court battle over the permit seems likely.

In moving the discharge point, IP will have to go through a permitting process called an antidegradation review. For this review IP will have to demonstrate with "reasonable assurance" that they are not contributing to water quality violations in Perdido Bay. From my perspective, I do not see how IP can demonstrate this. Maybe there is a consultant somewhere who would be willing to lie and testify that IP is having no adverse impact on Perdido Bay. But it will be difficult. We understand that IP is using some consultants from Georgia. Apparently, Dr. Skip Livingston, is no longer on the IP team. But Dr. Livingston, himself, said that the paper mill was the sole source of pollution in upper Perdido Bay. So, we will just have to wait and see. IP has still not turned in a permit application (actually it will be a modified permit application. According to DEP, the paper mill submitted their application for a new permit in September 1994. DEP still hasn't acted on the application yet. Is this absurd or what!).

No Cooperation

Friends of Perdido Bay has been trying to get our plight out to the public in Pensacola so that we are not forgotten. Here, we have a case of a bay which has been nearly destroyed by the discharge from a paper mill and the DEP and EPA have looked the other way. Matter of fact, it appears like our environmental agencies are helping IP by providing excuses for the destruction. According to one scientist I talked to recently, the prolonged drought and increased salinity are responsible for the death of the clams, grassbeds, etc. As I pointed out to him however, increased salinity would bring a change in the composition of the animals, not total destruction. The DEP stopped doing biological testing in Perdido Bay back in 1988 and ADEM never has done very much testing in Perdido Bay. It is a case of hear no evil, see no evil, speak no evil. However the public can obviously see the degraded condition of the bay.

Big government working for industry and against the poor common folk should be a good conservative theme. With this in mind, I contacted Luke McCoy of WCOA radio (1370 AM) who is host of the call-in show Pensacola Speaks from 4 to 5:30 PM. He said he would absolutely not do a show on Perdido Bay, nor would he recognize any organized call in effort. I was shocked. Luke McCoy had at least 2 radio programs on Champion Paper's attempt to go into Escambia Bay. Apparently Escambia Bay has powers that Perdido Bay doesn't. Too bad. Maybe people ought to call his show once in a while and ask why he will not feature the problems on Perdido Bay. The number is 850-478-6011.

Who is going to pay?

For the past 10 years, Perdido Bay residents have been hearing promises of clean-ups. Nothing has happened. The pipeline plan has now been in the promising stage for at least two years. Why do I think this time a plan is really going to happen? Because public funding for the pipeline/clean-up project is available or in the works. The Florida legislature gave $1.5 million for the pipeline project. The state touted this project as a public/private enterprise. In addition, 25,000 acres of land owned by IP along the lower Perdido River in Florida and Alabama has been placed at the top of the conservation list for purchasing easements. According to a June 8th News Journal article, Alabama has pledged $7 million and Florida has pledged $6 million for the 25,000 acres easement.

The purchase of the easements to and along the Perdido River is great news. But our final blessing will depend on the exact location and terms of the easement Public access to the Perdido River has been severely limited due to closing of several access points both by Escambia County Florida and private landowners. The opening of access points will allow the Perdido River to have a lot more recreational value than it now has. It is a beautiful river and should be enjoyed by more people.

Friends of Perdido Bay found out about the proposal in late May. The big meeting where land to be purchased is ranked by Florida was in early June. This did not give us time to notify our members to support this project. I was afraid, because we did not have anyone write, that the project to buy easements would not rank very high. I was amazed when David Venn from the Perdido River Canoe Rental in Cantonment called and told me that this project had made it to the top of the ranking list. David Venn told me that Escambia Commissioner Tom Banjanin, three county employees, and Navy personnel had gone to Tallahassee to support the project. Obviously, this group of people carried a lot of weight. The end result is that IP will getting money, at least $14.5 million, for the proposed improvements to their wastewater system from public funds, either from a direct grant or from sale of easements.

Legal Updates

For the past two or three years, legal battles involving Perdido Bay have been going through the courts. We don't report the progress of these legal skirmishes in every newsletter, but they are on-going. One thing about the legal arena, things can drag on forever. Nothing is quick in court.

The law suit filed by Ester Johnson has been stalled with no progress for over a year. Steve Medina, who is Ester's attorney, was working for the Clean Water Network and Linda Young. However, Steve Medina who was practicing law on his own, has joined the Levin/ Papantonio law firm. This presents a rather difficult situation since the Levin law firm was, at one time, attorneys for the paper mill. In this case, the judge allowed Ester Johnson's attorney to amend her complaint on January 24, 2002. Twice, Ester's attorney has asked for an extension of time to file a new petition because settlement talks are ongoing. I have not been involved in the settlement talks even though I am an intervenor. The latest extension of time gives Ester's attorney until July 24, 2002 to amend her complaint. Until she amends her complaint, any administrative action is blocked. Damages under the common law complaints of nuisance, trespass can still be pursued by any aggrieved parties.

The administrative action where International Paper sought to transfer the long since expired permit from Champion International to International Paper is now in the First District Court of Appeals. Last June (2001) an administrative hearing was held in Pensacola where the transfer of the permit was challenged. In order to satisfy state law for transferring the permit, IP had to show that they had the ability to meet the permit. Since the permit was for IP to stay in Eleven Mile Creek at its present location, I reasoned that IP would have a very hard time proving they could meet the old permit. IP argued that they could meet the permit by moving their discharge to a new point. This did not make sense since they would need a new permit to move their discharge point. But the administrative law judge agreed with them (which is normal for this court). We appealed and are now waiting for an appellate decision.

At the hearing last June, I discovered why the DEP has not been fining IP for violations to state standards in Eleven Mile Creek. It is DEP's official position that IP does not have to meet any standards in Eleven Mile Creek because the 1989 Consent Order gave the paper mill a blanket exemption from meeting any standards. The 1989 Consent Order does not give a blanket exemption. However, in order to get an official DEP clarification of exactly what the Consent Order exempts, I have sought a Declaratory Statement. This is a special provision allowed by administrative law. The DEP has refused to give me an official statement. We are now in Appellate Court trying to get the DEP to give me an official statement. And the process never ends.