Subject:
Title
Petition for Administrative Hearing regarding a Florida Department of Environmental Protection Consent Agreement Order that allows excessive land application of biosolids within the watershed of the Upper St. Johns River Basin
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Fiscal Impact:
Cleanup costs for the impacts of the Consent Order are unknown but could be significant
Dept/Office:
Natural Resources Management Department / County Attorney’s Office
Requested Action:
Recommendation
Authorize the County Attorney’s Office and Natural Resources staff to submit a Petition for Administrative Hearing, including retroactive authorization if necessary, seeking the reversal or modification of the Consent Agreement Order issued by Florida Department of Environmental Protection (FDEP) in OGC File No. 25-1282; and authorize the County Attorney’s Office and County staff to participate in the administrative hearing process, including mediation, with any settlement agreement reached at mediation subject to final Board approval.
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Summary Explanation and Background:
A Consent Agreement Order entered by FDEP on July 25, 2025, would allow for excessive land application of biosolids at locations in Brevard, Osceola, Polk, Suwanee, and Taylor counties within the watershed of the St. Johns River, increasing nutrient loading into waters within Brevard County. This creates an additional burden to the Brevard County taxpayers as Brevard County is mandated to reduce the nutrient loads entering these same waters. This burden and the associated impacts to the St. Johns River run contrary to the Board’s prior adoption of a moratorium on expanding the land application of biosolids within Brevard County.
This Consent Agreement Order allows the shifting of nutrient impacts and potential cleanup costs from wastewater treatment plants in South Florida to the citizens of Brevard County. The St. Johns River has been identified as being impaired for phosphorus. When surface waters are designated as impaired, stakeholders including local governments are mandated to reduce annual loading. Portions of the Upper Basin of the St. Johns River have been designated as impaired and local jurisdictions including Brevard County and its taxpayers are required to reduce total phosphorus loading from the sum of sources by as much as 52% (Florida Department of Environmental Protection TMDL Report: Nutrient and DO TMDLs for the St. Johns River above Lake Poinsett (WBID 2893L), Lake Hell n’ Blazes (WBID 2893Q), and St Johns River above Sawgrass Lake (WBID 2893X), April 2006).
The land application of biosolids has been identified as the most likely explanation for toxic algae blooms that occurred in Blue Cypress Lake in 2018 and Lake Washington in 2019. Additional blooms producing toxic microcystins, still below thresholds for human health concerns, were documented in September 2020, March 2021, December 2021, January 2022, March 2022, February 2023, August 2024, and April 2025.
Lake Washington and large portions of the Upper Basin of the St. Johns River are classified by FDEP as Class I surface waters with a designated use for potable water supplies. Lake Washington provides water supply for the City of Melbourne’s potable water utility that serves drinking water to approximately 170,000 residents in Melbourne, West Melbourne, Palm Shores, Satellite Beach, Indian Harbour Beach, Indialantic, Melbourne Beach and portions of unincorporated Brevard County.
The biosolids being applied to land in Brevard County and neighboring counties are primarily from South Florida with only a small portion of biosolids applied within the Upper Basin produced by utilities within the Upper Basin. To protect the St. Johns River, its stakeholders, and a significant potable water supply, biosolids produced by Brevard County-operated wastewater treatment plants are safely disposed of in a lined County landfill.
Persons who are not parties to the Consent Agreement Order, but whose substantial interests are affected by it, have a right to petition for an administrative hearing under sections 120.569 and 120.57, Florida Statutes. Failure to file a petition within the 21-day period constitutes a person’s waiver of the right to request an administrative hearing and to participate as a party to this proceeding under sections 120.569 and 120.57, Florida Statutes. Natural Resources staff became aware of the Consent Agreement Order on August 15, 2025. However, notice of agency action was posted in the Hometown News on August 1, 2025. There is present uncertainty regarding the deadline, but if the County Attorney’s Office determines that the Petition should be filed prior to the Board’s August 26 meeting, then the County Attorney’s Office will notify commissioners individually, file the petition, and request retroactive authorization in order to preserve the County’s rights.
In the Petition, Brevard County will request that this Consent Agreement Order be reversed or modified to comply with Chapter 62-640, Florida Administrative Code, in regard to land application of biosolids in the watershed of the Upper St. Johns River, an impaired Class I surface water. This rule requires biosolid land application rates based on phosphorus crop demands to reduce the migration of phosphorus to the impaired waterbody. The petition process provides the ability for the petitioner to pursue mediation as an alternative remedy, while retaining the right to an administrative hearing if the mediation does not result in a settlement.
Clerk to the Board Instructions: