Lee County hearing examiner reviews FAA guidance as rezoning for Site 90 wastewater plant is remanded

Hearing Examiner Amanda Rivera on Jan. 15 presided over a remand of DCI 20 2300011 that limited testimony to three court-identified issues and, notably, whether FAA advisory circulars required additional findings for a proposed wastewater treatment plant on "Site 90." Staff recommended the rezoning remain approved, while residents, scientists and attorneys contested that FAA guidance and environmental risks warranted closer scrutiny.

The county's staff presentation described the request as a rezoning of 112.21 acres from AG-2 to a community facilities plan development to allow a wastewater treatment facility with about 25,000 square feet of administration/maintenance space and infrastructure sized to treat up to 10,000,000 gallons per day. "Staff continues to recommend approval of the request," Anthony Rodriguez, zoning section manager for the Lee County Department of Community Development, told the examiner, citing the record from prior proceedings and the remand staff report.

Staff's analysis centered on several FAA advisory circulars the circuit court cited. Rodriguez summarized key guidance on hazardous-wildlife attractants and land-use compatibility, noting that the FAA documents recommend 10,000 feet from an airport's air operations area and, in some circumstances, a 5-mile buffer where wildlife attraction could affect approach and departure paths. He said the county's maps and exhibits show the subject property is outside those distances: "the site is right now 18,000 feet plus or minus from the current runway," and "upon expansion of that runway will be still approximately 13,000 feet away," Rodriguez said, adding the Lee County Port Authority issued a letter of no objection that is in the record.

Applicant witnesses echoed staff's conclusions. Laura Herrera, an ecologist with Johnson Engineering who identified herself as an FAA-qualified airport wildlife biologist, testified the project "does sit outside the 10,000 foot ' separation buffer from the Southwest Florida International Airport" and that staff had reviewed advisory circulars and the Port Authority had no objection.

But public commenters and independent experts urged the examiner to weigh the FAA guidance more strictly. Petitioner Marsha Ellis told the examiner she had submitted maps, historical studies and engineering reports and argued the project sits in a hydrologic confluence and conservation area that will increase flooding and wildlife hazards near the airport. "This site was not a good site," Ellis said in her remarks, and she repeated concerns about omitted materials and process issues in the prior record.

Dr. Serge Thomas, an aquatic ecologist, raised water-quality concerns, including risks from PFAS in reclaimed water and the hazards of very long reclaimed-water pipe runs and infiltration. Neighbors asked questions about plant capacity and timing; one resident noted differing capacity figures in materials and questioned why construction continued while legal appeals were pending.

County-affiliated counsel and planning witnesses responded that the county's planning obligations and capital improvements program support a public-facilities location and that the administrative record contains competent, substantial evidence for approval. "The county is following the law," attorney Neil Montgomery said, arguing the county met statutory planning and public-facilities requirements under the comp plan and state statute referenced in the record.

The hearing examined how advisory circulars should be applied in a local land-use hearing. Staff emphasized that FAA advisory circulars are guidance (not binding federal regulations) but that many of their recommendations had been considered in staff's compatibility analysis. Rodriguez also highlighted an FAA excerpt noting most bird strikes occur at or below 500 feet above ground level and that while aircraft may circle above the subject property, the bulk of strikes occur at low altitude.

Rivera repeatedly constrained public testimony to the three remanded issues and the FAA-related question the judge asked the examiner to address. At the close of the hearing she said she would issue a written recommendation to the Board of County Commissioners and noted that speakers who testified would receive notice of the board hearing and a copy of the recommendation.

The remand will move next to the BOCC for a final decision; Rivera said she will publish a written recommendation based on the limited record and the testimony taken on remand.