Division of Administrative Hearings, Florida
Filed: Feb. 06, 2020
The issue to be decided in these cases is whether Petitioner, A. Wayne Lujan (Petitioner), was entitled to issuance of five environmental resource permits (ERPs) that Respondent, Department of Environmental Protection (DEP), intended to deny as stated in notices of denial dated October 25, 2019.A. WAYNE LUJAN, ) OGC CASE NOS. 19-1732
) 19-1733
Petitioner, ) 19-1734
) 19-173S
v. ) 19-1736
) DOAH CASE NOS. 20-0659 DEPARTMENT OF ECONOMIC ) 20-0660 OPPORTUNITY AND DEPARTMENT OF ) 20.:.0661 ENVfilONMENTAL PROTECTION, ) 20-0662
) 20-0663 Respondents. )
I
FINALORDER
An Administrative Law Judge (ALJ) with the Division ofAdministrative Hearings (DOAH) on April 14, 2021, submitted a Recommended Order (RO) to the Department ofEnvironmental Protection (DEP or Department) in the above-captioned administrative proceeding. A copy of the RO is attached hereto as Exhibit A. No party filed exceptions to the ALJ's RO. This matter is now before the Secretacy ofthe Department for final agency action.
BACKGROUND
On July 26, 2018, A. Wayne Lujan (Petitioner) applied for five environmental resource permits (ERPs) to place fill in wetlands and submerged lands on Lots 34, 35, 37, 39, and 40 (the Project) ofthe Key Haven Tenth Addition plat dated September 1966 in Monroe County. The applications also requested to remove the entire mangrove fringe and install vertical seawalls on each ofthe subject lots. The lots are located in the waters ofthe Gulf ofMexico and unnamed wetlands in the landward extent ofthe Gulf ofMexico, a Class III waterbody, an
Critical State Concern (ACSC).
DBP issued four requests for additional infonnation (RAJ) to the Petitioner on August 24, 2018.-November 21, 2018, February 8, 2019, and May 8, 2019. DEP's fourth RAI raised the same concerns as the first, second, and third RAis, and statCd that seven ofthe 19 specific items were not addressed by the Petitioner. DEP denied the Petitioner's five ERP permit applications on October 25,2019. Petitioner timely filed five petitions for administrative hearing on December 13, 2019, which were referred to DOAH forfmal hearing.
DEP's five notices ofdenial each stated that the following changes to tbe Project might enable DEP to gnint the Petitioner an ERP pennit: (1) an appropriate mitigation plan to adequately offset the direct, secondary, and cumulative impacts; (2) supporting information to demonstrate that the proposed stormwater management syst~ is designed in accordance with the Applicant's Handbook, Volumes I and II; (3) supporting information to demonstrate that the proposed activities are consistent with part IV ofrule 62-312, Florida Administrative Code 1; (4) a demonstration that the activities are clearly in the public intetest; and (S) resolution of the issues identified by the Department ofEconomic Opportunity in its consistency objection letter dated August24,2018, and revised by letters dated November26. 2018, and February 8, 2019.
Because of a fedeml consistency objection raised by the Department ofEconomic Opportunity (DEO) regarding inconsistencies with the regulations governing the Florida Keys ACSC~ DEO was made a co·respondent. See § 373.428, Fla. Stat. (2020) ("[a]n agency which
1 Part lV ofrule 62-312, Florida Administrative Code, contains additional DEP rule requirements applicable to ERP pemrit applications located in OutstandingFlorida Waters within Monroe County. This part of mle 62-312 continues to apply to ERP applications to this date.
to any administrative or judicial proceeding in wllicb such determination is an issue. ''); see also
§ 380.23(2Xa), Fla. Stat. (2{)20).
In advance ofthe fmal hearing; DOAH consolidated the five DOAR cases into DOAH Case
No. 20-0659. DEP andDEO filed a Motion to Strike, or in the Alternative, Motion in Limine, to
strike portions ofthe petitions that.raised issues concem.lng inverse condemnation. On July 29,
2020, the ALJ granted this motion.
DOAH held the final hearing on these pennit applications on October 13 and 14, 2020, by Zoom video conference. At the final hearing, Petitioner presented the testimony of Edward A. Swakon (Swakon), a civil engineer and owner ofEAS Engineering, Inc., accepted as an expert; and Howard Nelson (Nelson), an attorney and participant in drafting the responses to DEP's RAis during the application review process. DBPpresented the testimony ofMegan Mills (Mills), the pennitting program administrator, ~ccepted as an expert. DEO presented the testimony ofBarbara Powell (Powell}, the regional planning administrator for the ACSC program, accepted as an expert. Joint Exhibits J-1 through J-88 were admitted into evidence.
OnNovember 2, 2020, the parties requested an extension until November 20, 2020, to flle their proposed recommended orden;, which the ALJ granted. The parties ftled their proposed recommended orders (PROs) on November 20 and 23, 2020; and the ALJ carefully considered the PROs in preparing her RO.
This matter is now before the Secretary ofthe Department for fmal agency action. SUMMARY OF THE RECOMMENDED ORDER In the RO, the ALI recommended that the Department issue a fma1 order denying the Petitioner's five ERP applications for Key Haven Lots 34, 35, 37, 39 and 40. (RO at p. 33). In
issuance under rule 62-330.301, Florida Administrative Code. (RO ~ 69). Specifically, theALJ found that the applicant failed to provide adequate assurances regarding the following potential impacts: flooding to on..site or off-site property, adven;e water quantityimpacts to receiving waters and adjacent lands, adverse water quality impacts to receiving waters (RO ~ 70); hannful erosion and .shoaling (RO ~ 77); and cumulative impacts to wetlands and other surface waters (RO ~ 79). Moreover, the ALJ found that the Project would cause the following adverse impacts: secondary impacts to the water resources and adverse impacts to smface water conveyance, neither ofwhich would be adequately offset by appropriate mitigation (RO , 72); adverse effects to the public health, safety, or welfare, or the property of others, because the side ofFloral A venue adjacent to the Petitioner's lots bas no stormwater management or treatment system, the lack ofwhich would direct the stormwater into the mangrove fringe and contiguous OFW (RO ~ 74); adverse effects to the conservation offish and wildlife, or their habitat, which would not be adequately offset by appropriate mitigation (RO , 75); and adverse effects to marine productivity and the relative value offunctions being performed by the impacted areas. (RO , 76). The AUconcluded that the Petitioner applicant did not provide reasonable assurance that the Project would meet the ERP conditions for issuance, the additional criteria ofpart IV of chapter 62-312, Florida Administrative Code, and section 380.0552, Florida Statutes, regarding protection ofthe Florida Keys as an ACSC. (RO ~ 115). Moreover, the ALJ concluded that the Project is not consistent with the federally approved Florida Coastal Management Program (FCMP), which includes part II ofchapter 163, and part II ofchapter 380, Florida Statutes. (RO ~ 115). See also RO, 4.
The case law ofFlorida holds that parties to formal administxative proceedings must alert reviewing agencies to any peroeived defects in DOAH hearing procedures or in the findings of fact ofALJs by filing exceptions to DOAHrecommended orders. See, e.g., Comm 'n on Ethics v. Barker. 677 So. 2d 254,256 (Fla. 1996); Henderson v. Dep't ofHealth, Bd. ofNursing. 954 So. 2d 77, 81 (Fla. 5th DCA 2007); Fla. Dep 't ofCon-. v. Bradley, 510 So. 2d 1122, 1124 {Fla. 1st DCA 1987). Having filed no exceptions to any findings offactthe parties "[have] thereby expressed [their] agreement with, or at least waived any objection to, those fmdings offact." Env't Coal. ofF/a., Inc. v. Broward Cnty., 586 So. 2d 1212. 1213 (Fla. lst DCA 1991); see also Colonnade Med. Ctr., Inc. v. State ofF/a., Agencyfor Health CareAdmtn., 847 So. 2d 540, 542 (Fla. 4th DCA 2003). Howev'er, even when exceptions are not filed, an agency.head reviewing a
recommended orderis free to modify or reject any erroneous conclusions oflaw over which the agency has substantive jurisdiction. See § 120.57(1 )(1), Ffa. Stat. (2020); Barfield v. Dep 't of Health, 805 So. 2d 1008, 1012 (Fla. 1st DCA2001); Fla. Public Emp. Counci~ 79 v. Daniels, 646 So. 2d 813, 816 (Fla. 1st DCA 1994).
No party filed any exceptions to theRO objecting to the AL.rs findings, conclusions ofJaw, recommendations, or to theDOAH hearing procedures. The Department concurs with the ALI's legal conclusions and recommendations, with one exception. The Department rejects as unnecessary dictum the last sentence ofthe RO's conclusion ofJaw paragrn.ph 113, which should notbe incorporated in this Final Order.2 Dep 't ofEnv't Prot. v. Thomas Kerper and All Salvaged Auto Parts, Inc. , DOAH Case No. 02·3907 (Fla. DOAH December 19, 2003; DEP March 15,
2 In accordance with section 120.57(1)0), Florida Statutes, the Department fmds thatthe treatment ofconclusion oflaw 113 as dictumis more reasonable than adoptingthe ALJ's wmecessary legal conclusion.
determination, DEP cannot override DEO's detennination. However, in this case, when DEO did not issue a final order regarding its inconsistency detennination, part II ofchapter 380 might not prohibit the Departinent from overriding DEO's preliminary federal inconsistency determination.
Having considered the applicable law and standards ofreview in light ofthe findings and conclusions set forth in the RO, and being otherwise duly advised, it is
ORDERED that:
A. The Recommended Order (Exhibit A) is adopted and incorporated by reference with one exception; the last sentence ofthe RO 's conclusion oflaw paragraph 113 is deemed tobe unnecessary dictum and not adopted;
B. The environmental resource permit applicatiollB forKey Haven Lot34 (DEP File No. 365144~001), Key Haven Lot 35 (DEP File No. 365142~01), Key Haven Lot 37 (DEPFile No. 365142..001), Key Haven Lot 39 (DEP File No. 365131~10), and Key Haven Lot40 (DEP File No. 365127-00l)(collectively identified as the Project) are DENIED.
JUDICIAL REVIEW
Any party to this proceeding bas the right to seek judicial review ofthe Final Order pursuant to Section 120.68, Florida Statutes, bythe filing ofa Notice ofAppeal pursuant to Rule 9.11 0, Florida Rules ofAppellate Procedure. with the clerk of the Department in the Office ofGeneral Counsel, 3900 Commonwealth Boulevard, MS. 35, Tallahassee. Florida 32399-3000; and by filing a copy ofthe Notice of Appeal accompanied by the applicable filing fees with the
appropriate District Court ofAppeal. The Notice ofAppeal must be filed within 30 days from the date this Final Order is filed with the clerk ofthe Department. DONE AND ORDERED this 8~ dayof~, 2Q21, in Tallahassee, Florida.
stlTE OFFLORTDADEPARTMENT
OF ENVIRONMENTALPR01ECTION
SHAWN HAMILTON Interim Secretary
Marjory Stoneman Douglas Building 3900 Commonweahh Boulevard Tallahassee, Florida 32399-3000
FILED ON TillS DATE PURSUANTTO § 120.52, FLORIDASTA'IUTES, WITHTIIB DESIGNATED DEP.AR.TMENT CLERK, RECEIPT OFWIDCH IS HEREBY ACKNOWLEDGED.
Digitally signed by Syndie d• K• Kinsey
5yn 1e tnsey oate:2021.o7.osn:22:22 -04'00'
CLERK DATE
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy ofthe foregoing Final Order bas been sent by electronic mail to:
S. William Moore, Esq. Moore, Bowman & Reese, P.A. 551 N. Cattlemen Road Suite 100 Sarasota, Florida 34232 bmoore ii:mbrfum.com !csasse(rombrfmn.com Valerie A. Wright, Esq. Brandon W. White, Esq. Department ofEconomic Opportunity 107 East Madison Street Caldwell Bldg., Mail Station 110 Tallahassee. Florida 32399-4 f28 V alerie.WriL!htraldeo.mvflorida.com Bialldon. White a deo.m\ florida. com DEO.eservice~ wdeo.myflorida.com
Jay Patrick Reynolds Senior Assistant General Counsel Kathryn E.D. Lewis Assistant General Counsel 3900 Conmionwealtb Boulevard Mail Station 35 Ta11abassee, FL 32399-3000 patrick.Re_nolds@FloridaD EP.l! OV Kattu:yn.Lewis(a£loridaDEP.gov Lateshee.M.DanielSialFloridaDEP .gov Micbelle.M.Kniuhtcal.FloridaDEP.I!OV
STATE OF FLORJDADEPAR1MENT OF ENVIRONMENTAL PROTECTION
.v{f-/j_t\t U .1/ I
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STACEY D. C~VLEY , Administrative~w Counsel
3900 Commonwealth ]llvd., M.S. 35 Tallahassee, FL 32399-3000 Telephone 850/245-2242 email Stace,· .Cow_le 1(a;FloridaDEP.oov
