STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MELVIN J. LANEY, )

)

Petitioner, )

)

vs. ) CASE NO. 79-871

) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, at Tavernier, Florida, on February 24-25, 1981, and at Tallahassee, Florida, on August 17, 1981, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: Ross A. McVoy, Esquire

Madigan, Parker, Gatlin, Swedmark and Skelding

Post Office Box 669 Tallahassee, Florida 32302

For Respondent: H. Ray Allen, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

This case involves Petitioner's application for a permit from Respondent to conduct certain activities at Rodriguez Key incident to the establishment of a primate breeding and research farm. The requested activities included the construction of a floating pier, several buildings, and clearance of areas for the purpose of creating perimeter and horizontal access trails around the island between a cage area and the support buildings. Respondent processed the application pursuant to Chapters 253 and 403, Florida Statutes, and Public Law 92-500, and by a letter of March 8, 1979, advised Petitioner of its intent to deny the permit for failure to obtain local approval under Section 253.124, F.S., and because the proposed activities were expected to adversely affect water quality and biological resources. Petitioner thereafter requested an administrative hearing under Chapter 120, Florida Statutes, which was referred to this Division for the appointment of a Hearing Officer.

Final hearing was originally scheduled for August 7, 1979, but the hearing was continued upon request of the parties until February 24, 1981. During the intervening period, litigation filed by the Petitioner in Laney v. Trustees of the Internal Improvement Fund and State of Florida, Department of Natural Resources in the Monroe County Circuit Court, Case No. 79-1192, regarding his boundaries on Rodriquez Key was resolved in his favor by entry of a Final

Summary Judgment. On appeal to the Third District Court of Appeals, in Case No. 80-1525, the Court, in opinion filed June 2, 1981, affirmed the decision of the Circuit Court. (Hearing Officer's Exhibit 1) The Court's decision effectively eliminated any requirement of the Petitioner to obtain approval under Chapter 253, Florida Statutes, for his proposed project, as acknowledged by Respondent's counsel at the hearing.

Pursuant to a prehearing conference, the parties prior to hearing submitted a Prehearing Compliance Statement wherein they stipulated as to the following specific issues:

1. Whether or not the trails and cable roads

   are stationary installations subject to Respondent's jurisdiction under Chapter 403, Fla. Stat., and

   Chapter 17-3 and 17-4, F.A.C.; and if so,

2. Whether or not Petitioner has provided reasonable assurance that the combination of cable roads and trails without cable roads will not violate water quality standards.

3. Whether Petitioner's proposed waste collection and treatment installation provides reasonable assurance that State water quality standards will not be violated by its operation. (Exhibit 11)

At the conclusion of the first hearing session on February 24-25, 1981, the hearing was continued until August 17, 1981, for the Petitioner to present additional evidence concerning the proposed cable road system and for Respondent to present evidence concerning the proposed sewage treatment facilities. At that initial session, 13 public witnesses testified concerning the Project. (Hearing Officer's Exhibit 2)

Prior to the commencement of the August 17 hearing session, the Petitioner withdrew the subject of wastewater treatment as an issue in this proceeding. No application for a permit to construct a wastewater treatment facility was shown to exist during the course of this proceeding, although a witness testified in behalf of the Petitioner in the prior session as to the type of system to be proposed. In any event, Respondent acknowledged the withdrawal of the issue from consideration except as to the need for an appropriate condition attaching to any dredge and fill permit issued hereafter to provide that such a permit would not take effect until a wastewater treatment facility permit application has been approved.

Prior to the August 17 hearing session, Petitioner filed a motion to add the constitutional issue of taking private property for public use without just compensation as a matter to be considered in this proceeding. The motion was orally granted by the Hearing Officer at the hearing in order that Petitioner could preserve any such constitutional issue for consideration in any subsequent judicial proceeding on the record of this proceeding.

FINDINGS OF FACT

1. Petitioner Melvin J. Laney is the owner of Rodriguez Key which is located approximately one and one-half miles from Key Largo, Florida, in the Atlantic Ocean. The island consists of about 170 acres and is undeveloped. It is approximately 9/10 of a mile long and 3/10 of a mile wide. By application, dated July 31, 1978, Petitioner requested a permit from Respondent Department of Environmental Regulation (DER) to conduct specified activities incident to the

   establishment of a primate breeding and research farm. The proposed activities included the construction of a floating pier, filling a sunken barge which is located 100 feet from the shoreline with coral rock and riprap, constructing two buildings on stilts on the east end of the island, clearing some 8.9 acres of black mangroves to provide trails for the placement and servicing of cages, installation of prepackaged waste treatment units, and temporary cages. (Testimony of Petitioner, Exhibits 1,8)

   
   

2. DER's South Florida branch office personnel reviewed the application and issued an intent to deny the requested permit by letter of March 8, 1979, for the reason that Petitioner had failed to obtain local approval required pursuant to Section 253.124,. F.S., and that violations of State water quality standards could be expected by the proposed project. Further, the notice noted that the project would result in adverse effects to marine productivity and wildlife population contrary to the public interest under Chapter 253. Petitioner thereupon requested a hearing. (Petition, Exhibit 6,8)

   
   

3. Petitioner plans to bring rhesus, squirrel, and other research primates into the State for the purpose of establishing a breeding and research farm on Rodriguez Key. The primates would be owned by sponsors who would pay Petitioner to provide housing, care and associated services. The project is designed to meet the needs of researchers for the testing of vaccines and other scientific purposes. There is currently a shortage of primates in this country due to a 1978 embargo on the export of such animals by the government of India who had previously been the primary supplier of research primates. (Testimony of Petitioner, Darrow, Exhibit l)

   
   

4. Petitioner intends to fill a partly sunken barge near the northeast shoreline with boulders and riprap, cover it with a concrete floor, and construct a floating pier approximately 130 feet long between the shore and the barge for off-loading of supplies and equipment. The project contemplates the construction of an animal care house and a residence, both to be placed on stilts which will each contain a maximum of 10,000 square feet of space. No filling or dredging is planned for either structure. This is a modification from the original permit application which called for some 3,000 cubic yards of fill at the building site.

   
   

5. At the western end of the island, Petitioner plans to install 16 rows of prefabricated cages with 64 cages per row, which represents a total area of approximately 12.48 acres. About 4.16 acres of that area will be cleared or otherwise disrupted to place and connect the cage rows. The cages will be secured and there is little likelihood that the animals will escape. Under a current permit from the Fresh Water Game and Fish Commission, the holding cages must be constructed to withstand hurricanes, surge and wind, and provide adequate protection for the animals during such storms. They must also meet or exceed minimum pen specifications established by the Commission. The permit submitted in evidence expired on June 30, 1981.

   
   

6. The cages will be prefabricated and placed on metal pilings which are attached to underground rock. There will be troughs located underneath a grate floor for animal wastes which will be collected and pumped to a sewage disposal system.

   
   

7. In order to take supplies, materials, and animals to and from the cage area, Petitioner intends to clear a 20-foot wide perimeter "trail" around the island which would be attached at both ends by lateral similar trails. The total distance of the trails is approximately 9,000 feet. The need for a

   perimeter trail is to deliver materials on one side of the island, service the animals, and then leave by a different route for the purpose of transporting employees, ill animals, or transporting of any animal that might affect the control area for testing and conducting vaccine research. The perimeter trails are designed to be no closer than 75 feet from a red mangrove fringe border around the island.

   
   

8. For transportation purposes, it is proposed to use gasoline powered "all terrain" wheeled vehicles which will traverse the trails along two parallel two-inch diameter cables suspended horizontally 36 to 48 inches above the ground level. The cables will be attached to concrete anchors consisting of four inch by four inch steel tubes which are placed at 100 foot intervals along the trails. The tubes will be either hand-driven into subsurface rock several inches or driven by means of a portable pile driver. The tubes will additionally be supported by a concrete block "dead man" attached to a 5/8-inch cable on either side of the tubes and placed underground. Turning platforms would be placed at trail intersections on top of the cable road so that a vehicle could drive upon the platform and execute a turn to a connecting cable road. The low pressure tread vehicles used to traverse the roads will be equipped with shoes or flanges on the inside of the tire rims to securely ride on the pretensioned cables. They will also have low pressure pneumatic tires. The vehicles will also be used in interior areas where mangroves are not present. They will ride on the ground or upon metal plates. These areas are covered with about 9,000 square feet of batis (saltwort) cover which eventually will be killed by vehicle use. Batis is important for sediment stabilization and its removal can cause siltation problems in waters surrounding the island.

   
   

9. The need for a 20-foot swath for the cable road is explained by the fact that transport of the 17-foot cages must be accomplished by placing them sideways on the transporting vehicles in order to install and periodically provide service, repair or replacement.

   
   

10. A soil study made in representative areas of Rodriguez Key except the west end shows that coral rock exists at levels of approximately 11 to 15 feet below the ground surface, thus necessitating the use of pilings for support purposes rather than shallow footings. Although no soil borings were taken at the west end of the island, the soil expert is of the opinion that the borings reflect general rock characteristics of the entire island.

    
    

11. Petitioner's civil engineer who designed the current cable road system prepared several alternative methods of construction, and is of the opinion that suspension of the cables at a height of 15 feet instead of three to four feet as currently planned would be feasible except for cage servicing purposes.

    
    

12. A further alternative that was proposed by Petitioner's engineer expert is to place the cages at the east end of the island and utilize a boardwalk constructed of an eight-foot wide precast concrete slab walkway as a boardwalk for positioning of the cages. Six inch by six inch timber posts would be driven to the hardrock layer for a minimum of ten feet to anchor the Platform. The engineer testified that this alternative would be cost effective if used in lieu of the cable road. Respondent's Environmental Specialist testified that such a modification to concentrate the project on the east end of the island would be recommended because it would eliminate the cable road and its adverse environmental consequences

    
    

13. Rodriguez Key is almost completely vegetated by mangroves with a red mangrove fringe around the perimeter and black mangroves on the higher interior

    areas. Some of the red mangroves are 100 to 150 feet in height and the black mangroves range from 20 to 40 feet high. In the east center of the island is an open area of batis, and red mangroves are located in the center and west end of the island. White mangroves are also present in the south side of the island.

    Throughout the island, there are watermarks on trunks and prop roots ranging from four inches to six inches, and an abundant growth of brown algae. Such algae requires regular submergence to exist. No significant forms of wildlife are present on the island. Batis is a submerged species which is important for sediment stabilization. In order to clear the 20-foot wide trails with cable suspensions as low as 36 inches above ground, it will be necessary to prune or cut back a large number of mangroves to that height. However, the prop roots of the red mangroves extend above six feet in some areas. If the trees and roots are cut to a three-foot height, it is unlikely that they would survive.

    
    

14. Red mangroves produce leaf detritus which forms a part of the food chain for marine life. Such trees are island stabilizers which provide filtration and uptake of nutrients associated with runoff and intertidal waters. The waters surrounding the island are categorized as Class III waters under State regulations. The presence of brown algae on prop roots is evidence that the island is regularly inundated to some degree. Turtle grass, which is an indicator of regular tidal flushing, is in abundance on the flats waterward of the island but not found in the interior. During a visit to the Rodriguez Key in 1981, DER personnel observed standing water across the entire island to a depth of from one inch to one foot at high tide. (Testimony of Carroll, Key, Helbling, Exhibits 6, 8)

    
    

15. Thirteen public witnesses testified at the hearing, including residents, landowners, and representatives of housing developments in the Key Largo area. They were uniformly opposed to the proposed project for a variety of reasons. Primarily, they fear that the presence of primates on the island a short distance away from Key Largo will produce excessive noise, odor, and water pollution in the adjacent waters which are used for recreation. Additionally, some are of the opinion that their property values will decrease as a result of the activity. A District Naturalist employed by the Department of Natural Resources at the nearby Coral Reef State Park testified that her agency opposes the proposed activity due to concern that it will cause degradation of water quality in the surrounding waters and that increased boat traffic could damage the shallow coral reef beds which lie near the State park. There is also general apprehension among the nearby residents that a hurricane could destroy any facilities on Rodriguez Key and cause damage to their property. A petition signed by a large number of Key Largo residents reflects their opposition to Petitioner's use of Rodriguez Key as a primate breeding and research facility. (Testimony of public witnesses (Hearing Officer's Exhibit 2) Exhibits 9-10)

    
    

16. There probably would be no odor problem connected with the presence of monkeys on Rodriguez Key if the cages are regularly cleaned and fecal waste is disposed of according to sanitary methods. Although primates are inclined to vocalize at feeding time or when strangers appear, they do not screech at great length and the presence of trees and other foliage would modify the sound. (Testimony of Darrow)

    
    

    CONCLUSIONS OF LAW

    
    

17. The parties have effectively restricted the scope of this proceeding by prehearing stipulation to the issue of whether or not Petitioner's proposed trails and cable roads are "stationary installations" subject to Respondent's jurisdiction under Chapter 403, Florida Statutes, and, if so, whether or not

    Petitioner has provided reasonable assurances that they will not violate water quality standards.

    
    

18. Section 403.087(1), F.S., provides, inter alia, that no stationary installation which will reasonably be expected to be a source of water pollution shall be constructed without an appropriate and currently valid permit issued by the Department. Subsection (4) of that provision restricts the issuance of a permit for such installations to situations in which the Department determines that the installation will be so equipped with pollution control facilities as to comply with applicable rules.

    
    

19. Rule 17-4.02(3), Florida Administrative Code, defines "Installation" as "any structure, equipment, facility, or appurtenances thereto, operation or activity which may be a source of pollution." Rule 17-3.021, F.A.C., defines "Pollution" as follows:

    
    

    (17) "Pollution" shall mean the presence in the outdoor atmosphere or waters of the state of any substances, contaminants, noise, or man-made or man-induced alteration of the chemical, physical, biological or radiological integrity of air or water in quantities or levels which are or may be potentially harmful or injurious to human health or welfare, animal or plant life, or property, including outdoor recreation.

    
    

    The evidence presented in this case shows that the Petitioner's proposed facilities will be "stationary installations" in that their construction will constitute man-made or man-induced alteration of the physical or biological integrity of the water in the area which may be potentially harmful or injurious to animal or plant life, or property. The evidence establishes that the areas where Petitioner's cable roads and trails would be located are regularly inundated by waters of the State. This conclusion is drawn not only by the visual observation of such factors as water marks on trees, standing water, and presence of batis and brown algae, but also by the fact that the dominant species in the particular area is red mangrove. Rule 17-4.28, F.A.C. governing the issuance of permits for dredging or filling activities, requires that all such activities conducted in or connecting to waters of the State shall comply with the water quality standards of Chapter 17-3, F.A.C. The rule also provides that the state territorial waters of the Atlantic Ocean constitute waters of the State, and that included in the borders of such water body, are areas which are customarily submerged and exchange waters with the recognizable water body. The vegetation indices listed in Section 17-4.02(17), F.A.C., are presumed to accurately delineate the landward extent of the state water body. That rule implements Section 403.817, F.S., which authorizes Respondent to establish by rule the landward extent of the waters of the State by the species of plants or soils which are characteristic of those areas subject to regular and periodic inundation by the waters of the State. The application of plant indicators to these areas is by dominant species. Rule 17-4.02(17) includes red mangrove as constituting one of the characteristic species which define the landward extent of State waters.

    
    

20. Petitioner maintains that the proposed "batis paths" in the project are not stationary installations, and that the mere cutting of mangroves incident to construction of the cable road is not within the definition of dredging and filling under Respondent's rules. Petitioner's contentions are not valid. Respondent's Rule 17-4.02(12) defines "Dredging" as the excavation, by

    any means, in waters of the State. Subparagraph (15) of the rule defines "Filling" as the disposition, by any means, of materials in waters of the State. It is clear that the digging of foundations for and installation of the support structures for the cable road system constitutes both excavation and the placement of materials into areas which are deemed to constitute the landward extent of waters of the State. The creation of the batis paths by the use of the wheeled vehicles and the consequent destruction of the batis cover constitute operations or activities that reasonably will have an adverse impact on water quality by reason of the siltation which will result from the effective removal of the batis cover. Additionally, the cutting of mangroves to create the cable road system will eliminate an important ecological system which contributes to the maintenance of water quality standards in the waters surrounding Rodriguez Key. Although Petitioner presented the testimony of an expert as to the minimal effects anticipated by the project, her testimony was effectively refuted by Respondent's witnesses and she conceded that her position would be changed if it was established that the island was regularly inundated. As heretofore found, such is the case.

    
    

21. Accordingly, it is concluded that Petitioner has failed to provide Respondent with reasonable assurances that the short- and long-term effects of the project as contemplated would not result in violations of the water quality standards imposed by the Departmental rules. However, it is believed that the elimination of the cable road system and the relocation of the cage area from the west to the east-end of the island, as pro posed in Petitioner's Alternate Number 2, and as recommended by Respondent's witnesses, would result in only minimal disruption to the island's ecological system and therefore warrant the issuance of the requested permit. An additional advantage of this modification will be to reduce any noise and odor aspects of the activity, and thus allay the apprehensions and objections expressed by the adjoining mainland residents at the hearing. Although such matters may not be of direct legal significance here, they should not be totally ignored.

    
    

22. A final contention of Petitioner is that any permit should not contain, as urged by Respondent, a condition precluding the commencement of construction prior to the submission and issuance of a permit for a wastewater treatment facility. This claim is considered valid. Although Respondent's Rule 17-4.07(5), F.A.C., provides that the Department may issue any permit upon specified conditions reasonably necessary for the prevention of pollution, it is considered that such conditions properly should be restricted to those dealing with the particular permit in question. Here, by the deletion of the issue of wastewater treatment facilities from this proceeding, such a matter properly should be considered on its merits if and when a proper application for the same is submitted by Petitioner. It has been found above that the dredge and fill permit application, as modified, will not result in a violation of law or regulation. If Petitioner desires to expend the funds necessary for construction of the permitted facilities with the realization that later submitted wastewater treatment facility plans may not be approved, he is entitled to do so.

Petitioner's Proposed Recommended Order has been fully considered and those portions not adopted herein are considered either to be unnecessary, irrelevant, or unsupported in fact or law.

RECOMMENDATION

That the application of Petitioner Melvin J. Laney, as modified in the above Conclusions of Law, be approved and that a permit authorizing the

requested activities be issued pursuant to Chapter 403, F.S., together with water quality certification under PL-500, subject to standard conditions reasonably necessary for prevention of pollution.

DONE and ENTERED this 14th day of September, 1981, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1981.

COPIES FURNISHED:

Ross A. McVoy, Esquire Madigan, Parker, Gatlin,

Swedmark and Skelding Post Office Box 669 Tallahassee, Florida 32302

1. Ray Allen, Esquire Department of Environmental

   Regulation

   2600 Blair Stone Road Tallahassee, Florida 32301

   
   

   Honorable Victoria Tschinkel Secretary, Department of

   Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301

   =================================================================

   AGENCY FINAL ORDER

   =================================================================

   
   

   BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

   
   

   MELVIN J. LANEY,

   
   

   Petitioner,

   
   

   vs. CASE NO. 79-871

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   On September 14, 1981, the duly appointed hearing officer in the above- styled matter completed and submitted to the Department and all parties Findings of Fact, Conclusions of Law and Recommended Order. A copy is attached as Exhibit "A."

   
   

   The Findings of Fact, Conclusions of Law and Recommended Order thereafter came before me, as head of the Department, for final agency action. Having considered the Findings of Fact, Conclusions of Law and Recommended Order submitted by the hearing officer, the conditional acceptance of the Recommended Order, the Exceptions to the Recommended Order, and the additional Exceptions to the Recommended Order, and being otherwise fully advised in the premises, it is therefore:

   
   

   ORDERED that the hearing officer's Recommendation that the application of Melvin J. Laney, as modified in the Conclusions of Law of the Recommended Order, be approved, and that a permit authorizing the requested activities be issued pursuant to Chapter 403, Florida Statutes, together with the federal water quality certification under Public Law 92-500, subject to standard conditions reasonably necessary for the prevention of pollution and that the modified project shall be:

   
   

   1. Alternative No. 2 as depicted on Sheet 1 of 1 and Sheet 3 of Exhibit

      12.

      
      

      Alternative No. 2 as depicted consists of thirteen (13) rows of cages with

      seventy-nine (79) cages per row surrounded by an 8-foot wide boardwalk as depicted on S 3. From the boardwalk on the East side of the cages, a boardwalk in transition to the human housing facility and animal care facility may be constructed to the entrance level of each facility. Other than an increased height to reach the entrance of each facility, the configuration of these short boardwalks shall be the same as depicted for the boardwalks around the cages.

      
      

   2. From the North East intersection of the boardwalk around the primate cages, the boardwalk will extend to the sunken barge or pier. The barge shall be converted to a pier, filled with boulder rocks and capped as depicted on Exhibit 1, Sheet 5 of 5 of Petitioner'S application dated July 1978.

3 The animal care house and human residence shall be placed on appropriate stilts or pilings and shall contain a maximum of 10,000 square feet of space for each building. Other than installation of the pilings, there shall be no filling or dredging in connection with either structure.

4. The primate cages shall meet or exceed the minimum pen specifications established by the State of Florida Game and Fresh Water Fish Commission and shall otherwise comply with the requirements of the Commission.

Petitioner is cautioned that this Final Order and the dredge and fill permit do not constitute authorization to construct a sewage treatment plant at the project location.

Accordingly, the application of Petitioner, Melvin J Laney, is GRANTED as modified in the Recommended Order and this Final Order.

DONE AND ENTERED this 23rd day of October 1981, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

VICTORIA J. TSCHINKEL

Secretary

2600 Blair Stone Road Tallahassee, Florida 32301

Telephone: (904) 488-4807

FILING AND ACKNOWLEDGMENT

FILED on this date, pursuant to S120.52(9), Florida Statutes, with the designated Depart- ment Clerk, receipt of which is hereby acknow- ledged.

Clerk Date

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing FINAL ORDER has been furnished by U.S. Mail to THOMAS C. OLDHAM, Hearing Officer, Division of Administrative Hearings, the Oakland Building, 2009 Apalachee Parkway, Tallahassee, Florida 32301 and ROSS A. McVOY, ESQ., Madigan, Parker, Gatlin, Swedmark & Skelding, P.A., Forum Building, 318 North Monroe Street, Tallahassee, Florida 32302 on this 26th day of October 1981.

ALFRED W. CLARK

Deputy General Counsel

State of Florida, Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Telephone: (904) 488-0730

Docket for Case No: 79-000871

Orders for Case No: 79-000871