STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONALD T. HOPWOOD and )

MILAN M. KNOR, )

)

Petitioners, )

)

vs. ) CASE NO. 80-153

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

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on to be heard in Leesburg, Florida, before Sharyn L. Smith, Hearing Officer of the Division of Administrative Hearings, on May 6 and 7, 1980, commencing at 11:00 a.m. on May 6.

APPEARANCES

For Petitioner: Mr. Milan M. Knor

520 South Fig Tree Lane Plantation, Florida 33317

For Respondent: Stanley J. Niego, Esquire

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32301

PROCEDURAL BACKGROUND

This case involves a petition filed by Ronald T. Hopwood and Milan M. Knor, contesting the Department of Environmental Regulation's (hereafter "Department") intent to deny a permit application to conduct dredging and filling activities within the flood plain of Lake Griffin which is located in Lake County, Florida.

FINDINGS OF FACT

1. Petitioner Ronald T. Hopwood is president of Last Resort Fish Camp Association, Inc. (hereafter "Association"), the owner of Big Pine Island located in Lake County, Florida. Big Pine Island consists of approximately 26 acres of land above the mean high watermark and 166 acres of submerged and transitional zone lands. The Association's property is more accurately described by the Department's exhibit III, Map C.

   
   

2. Petitioner Milan M. Knor submitted to the Department a dredge and fill permit application, File No. 35-20062-4E, to dredge 7,350 plus-or-minus cubic yards of fill material waterward of the lien of ordinary high water and adjacent to the Petitioner's uplands (Department's Exhibit 12). It is proposed that the

   fill material or spoil be deposited on the landward side of a perimeter canal which presently exists along the southwest one-third of the island. When the project is complete, the canal will encircle the entire island, the fill material resulting therefrom will be deposited on the island side of the perimeter canal below a 59.5-foot elevation (Department's Exhibit III, Map A). During the dredging, turbidity curtains would be utilized. As part of the project, Petitioners propose to install two (2) 42-inch diameter culverts at the east and west ends of a causeway which connects Big Pine Island to the mainland (Department's Exhibit III, Map B). The purposes of the proposed project are to improve the water quality of the adjacent canals and wetlands, provide fire protection, reduce algae blooms, and stabilize bottom sediments (Petitioners' Exhibit A, Department's Exhibit 1).

   
   

3. The elevation of 59.5 feet above mean sea level was established by the St. John's River Water Management District as the ordinary high water elevation of Lake Griffin. The desirable levels of Lake Griffin vary between 58.07 and

   59.38 feet.

   
   

4. A dredge and fill permit was issued fro this project by the St. John's River Water Management District. In its final order granting the permit, the Governing Board of the District found, inter alia, that the water quality of the district would not be significantly diminished by the channelization of the marsh, that the new culverts would increase the rate of flow and the flushing of the marsh by providing increased northerly access for the water flow, that the excavation would enhance navigability and flow through the interior canal, and that the channelization would promote fire protection. The Board believed that the installation of the culvers ". . . will provide a positive benefit to the marshlands by correcting the prior damming effect of the causeway "

   (Petitioner's Exhibit D). The permit was issued by the Governing Board over the recommendation of its staff to deny the permit (Department's Exhibit 16).

   
   

5. On July 26, 1979, Mr. James Morgan, a filed inspector with the Department, conducted an on-site field inspection of the proposed project. Mr. Morgan complied an appraisal report, Department's Exhibit 11, which evaluated the feasibility of extending the existing 1,200-foot canal by approximately 3,000 feet. Mr. Morgan found that a portion of the area to be excavated, approximately 600 feet, was previously cleared and vegetated by arrowhead (Sagittaria, Sp.), paragrass (Panicum purpurascens), bloodroot (Lacnanthes caroliniana) and sawgrass. 1/ Standing water was present in portions of the previously cleared area. The remaining 2,400 feet were in a natural state, dominated by willows (Tudwigia peruviana), wax myrtles (Myrica ceriferia), arrowhead and sawgrass. Surface waters of the Oklawaha River and Lake Griffin were present in part of this area; however, at the time of the field evaluation, Lake Griffin's surface waters were depressed by approximately six (6) inches below its established ordinary high water elevation. Raising the lake's elevation to its high water elevation, 59.5 feet, would result in the entire project site being inundated with surface waters. Dip net samples yielded organisms which constitute the lowest levels of an aquatic food chain including amphipods, dragonfly naiads, diptera larvae and mosquito fish. Mr. Morgan's report concluded that ". . . [d]ue to the severity of the anticipated impact of the proposed canal construction, no environmentally acceptable modification is available other than to permit the system to function naturally. . . ." This conclusion was based on the following negative aspects of the project.

   
   

   1. The collecting and storing of organic materials in the canal which would reduce the dissolved oxygen level during biodegradation

      to lethal levels for fish and other aquatic organisms;

   2. The physical alteration and elimination of a natural wetland community;

   3. The increase in turbidity during excavation; and

   4. The placement of spoil below the controlled elevation of Lake Griffin which would reduce the lake and river flood storage capacity as well as the area capable of supporting healthy aquatic plant and animal life.

      
      

      It was recommended that the proposed culverts be installed and that one canal- front lot be utilized as a common lot for all property owners, thereby providing open water access to all property owners.

      
      

6. Lake Griffin is presently in a highly eutrophic stated caused by large amounts of algae growth and weeds in the water column. Agricultural farming, municipal sewage treatment plants, and citrus processing plants are among the sources of nutrients causing the high algae growth.

   
   

7. The construction of the causeway between the mainland and Big Pine Island in 1958 has prevented virtually any water from circulating between the marsh area and canal south of the causeway and the marsh area and canal north of the causeway. Due to this blockage of flow, lower dissolved oxygen levels and lower temperatures exist on the north side of the causeway. The south canal helps to maintain oxygen levels in the south marsh above concentrations considered critical to maintain aquatic life. The presence of the causeway has reduced the outflow of Lake Griffin by half, thereby increasing the residence time in the lake and promoting nutrient level buildup in the system. By increasing the water flow through the marsh surrounding the island, the quality of water entering the Oklawaha River from eutrophic Lake Griffin should be greatly improved.

   
   

8. The marsh to the north of the causeway presently serves a vital purpose by removing nutrients and other deleterious substances from the water flowing from Lake Griffin into the Oklawaha River. The marsh community acts in a matter similar to the human kidney by filtering deleterious substances from the surface water.

   
   

9. Biological productivity of the north marsh area is directly proportional to the amount of flow. This area presently experiences water movement caused by the control of water elevations in the Oklawaha chain of lakes by a series of control structures. This "backwater" effect, which is caused by movement in the Oklawaha, is not a sheet flow. If a sheet flow could be created, the marsh area directly north of the causeway, which is severely distressed, could be improved.

   
   

10. A sheet flow northward could be created by the proper placement of adequate size culverts under the causeway and the completion of the canal. The canal could facilitate the flow of water northward by permitting water to overflow the canal bank on the north side. This would be caused by the effects of a hydraulic gradient which exists between the water level in the canal and the ordinary mean high water lever maintained by the St. John's River Water Management District. The hydraulic gradient would cause the canal to overflow its unobstructed north bank and travel northward through the marsh into the

    Oklawaha River. Water would be blocked by overflowing on the southeast side of the island because of an existing berm.

    
    

11. In order to restore circulation, it would also be necessary to construct a series of culverts evenly distributed under the causeway. The two- culvert system proposed by the Petitioners would have a cosmetic effect and not significantly improve the natural water flow between the canals.

    
    

12. If the flow through the highly distressed marsh to the north of the causeway could be improved through the proper placement of culverts and construction of a perimeter canal, the positive aspects of the project would outweigh the negative impact of the elimination of approximately six (6) acres of productive marshland. If steps are not taken to reverse the continuing degradation of the marsh directly north of the causeway, a large and valuable area of wetlands will be lost. Artificial conditions already exist due to the finger canal on the north side of the causeway and the causeway itself.

    
    

13. The proposed filling of the island which is to occur below the 59.5- foot elevation will reduce the river's flood storage capacity and the area capable of supporting plan and animal life. The private benefit of placing the spoil from the dredging project on the island below the 59.5-foot elevation is outweighed by the negative impact associated with the elimination of a significant amount of low lying marshland. Adequate alternative means exist to provide fire protection to the residents of the island, and the filling of outlying marshes on the island is not necessary to accomplish this purpose.

    
    

14. Petitioners have not been denied the use of their property either by the Department's denial of this permit or the granting of this permit with conditions. The existing lots are suitable for residential purposes, including that portion of the island below the 59.5-foot elevation which may be used for residential development by placing housing on pilings or poles.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.

    
    

16. The provisions of Chapter 253, Florida Statutes, are applicable to this proceeding in that the proposed dredging and filling activities are to occur below the level of ordinary high water in Lake Griffin, which is a meandered, navigable lake.

    
    

17. Pursuant to Section 253.123(3)(a), Florida Statutes, which is applicable to certain dredging activities, an applicant must make an affirmative showing that the public interest will be served by the proposed works. The applicants have shown that the pubic interest would be served by the proposed project if certain conditions or modifications are approved. It is clearly in the public interest to increase the flow of water through the marsh north of the causeway and reverse the degradation of this area which began more than 20 years ago. If this marsh could be reestablished as a functioning healthy wetlands area, it would enhance the quality of water flowing northward into the Oklawaha River and the public's use of such waters.

    
    

18. Pursuant to Section 253.124(2), Florida Statutes, which applies to filling activities, the applicant must make an affirmative showing "that such activity will not interfere with the conservation of fish, marine and wildlife or the natural resources to such an extent as to be contrary to the public

    interest. . . ." See also Section 17-4.29(6), Florida Administrative Code. The Petitioners have failed to make such a showing in this case.

    
    

19. The proposed dredging and filling activities are to occur in the waters of the state as defined in Section 403.031(3), Florida Statutes. The standards for issuance or denial of this permit pursuant to Chapter 403, Florida Statutes, are found in Sections 17-4.03, 17-4.07(2) and 17-4.28(3), Florida Administrative Code, which require an applicant to provide reasonable assurances to the Department that the proposed activity will not result in violation of the water quality standards of Chapter 17-3, Florida Administrative Code. The Petitioners have provided reasonable assurances as required by the aforecited sections if the project is modified in accordance with the conditions set forth in this recommended order. If the project is not modified, reasonable assurances do not exist that the project will meet water quality standards.

    
    

20. The purpose of an administrative hearing is to formulate final agency action by considering the facts as reflected in the record, the law, and agency policy. In the instant case, the application as submitted does not meet the standards required for permitting as set forth by statute and regulation. This does not, however, mandate that the application be denied. Rather, the hearing process should be a vehicle for the formulation of final agency action which gives due consideration to appropriate modifications which could conform a project to the laws of the state.

RECOMMENDATION

Therefore, it is recommended that the Department issue a permit to Petitioners to complete construction of a perimeter canal surrounding Big Pine Island subject to the following conditions:

1. That the applicants install culverts or other similar structures of appropriate size to facilitate an adequate exchange of water between the canals on the north and south sides of the causeway. The number and size of the culverts or other structures will be determined by the Department.

   
   

2. That the fill or spoil resulting from the dredging of the canal not be placed on Big Pine Island or any surrounding property at any elevation below

   59.5 feet in elevation.

   
   

3. That the applicants utilize equipment including, but not limited to, turbidity curtains to keep turbidity at a minimum during the dredging process.

DONE AND ORDERED this 25th day of August 1980, in Tallahassee, Leon County, Florida.

SHARYN L. SMITH

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of August 1980.

ENDNOTE

1/ Both arrowhead and sawgrass are found in the vegetative index for submerged lands, Rule 14-7.02, Florida Administrative Code.

COPIES FURNISHED:

Mr. Milan M. Knor

520 South Fig Tree Lane Plantation, Florida 33317

Stanley J. Niego, Esquire

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32301

================================================================= AGENCY FINAL ORDER

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONALD T. HOPWOOD and NILAN M. KNOR,

Petitioner,

vs. CASE NO. 80-153

STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION,

Respondent.

/

FINAL ORDER

On August 25, 1980, the Division of Administrative Hearings (DOAH) hearing officer assigned to conduct a Section 120.57(1), Florida Statutes, hearing in the above styled cause, submitted her Recommended Order, attached hereto as Exhibit A, to the Department of Environmental Regulation. On September 18, 1980, counsel for the Department filed exceptions to the Recommended Order pursuant to Section 120.57(1)(b)(8) Florida Statutes, and Section17-1.68(1), Florida Administrative Code. Petitioners id not file any exceptions. None of the paraties have submitted a request for oral argument pursuant to Section 17- 1.68(3), Florida Administrative Code. The Recommended Order thereafter came before me as head of the Department for final agency action in this matter.

RULINGS ON EXCEPTIONS TO RECOMMENDED ORDER

The Department takes exception to the hearing officer's Conclusion of Law number 6 and to the recommendation which concludes the Recommended Order. The Department's exceptions to the Recommended Order are attached hereto as Exhibit B.

The exceptions filed by counsel for the Department are well taken are hereby adopted as part of this Final Order. The discussion relating to the applicable law contained in the Department's exceptions merits repeating here.

In Conclusion of Law number 6, the hearing officer stated:

The purpose of an administrative hearing is to formulate final agency action by considering the facts as reflected in the record, the law, and agency policy. In the instant case, the application as submitted does not meet the standards required for permitting as set forth by statute and regulation. This does not, however, mandate that the application be denied. Rather, the hearing process should be a vehicle for the formulation of final agency action which gives due consideration to appropriate modifications which could conform a project to the laws of the "state." (Emphasis added).

While the hearing officer is correct in characterizing a section 120.57 hearing as one desinged to formulate final agency action, she incorrectly concluded, after finding that the application did not meet permitting standards, that the application need not be denied.

The concept that a section 120.57 hearing is one designed to formulae final agency action was clearly enunciated by the First District Court of Appeal in the case of McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla.

1st DCA 1977). The court there stated:

Section 120.57 proceedings are intended to formulate final agency action, not to review action taken earlier and preliminarily. (Emphasis added.) Id. at 584.

The court held that a hearing officer was correct in permitting evidence of circumstances as they existed at the time of the hearing and not just at the time when the preliminary, or "free-form" agency action as formulated.

The concept of "free-form" proceedings was discussed by the same court in the case of Capeletti Brothers, Inc. v. State of Florida Department of Transportation, 362 So.2d 346 (Fla. 1st DCA 1978), wherein the court held that an agency must grant affected parties a clear point of entry to Section 120.57 proceedings once the preliminary, or free-form proceedings are concluded. This was the case here, as found by the hearing officer, in that this involves a petition contesting the Department's intent to deny a permit application.

The principle of law enunciated by the courts in the McDonald and Capeletti cases above is that a section 120.57 hearing is not in the nature of appellate or other review proceding which has as its basis the review of preliminary agency action, in this case the intent to deny letter. Rather, the hearing is held to formulate agency action, as in this case, on the permit application before the agency. The hearing officer is not bound to the findings made by the Department preliminarily in its intent to deny letter. She can consider evidence of circumstances as they existed at the time of the hearing; she can even consider amendments to licensing applications made after the Department's intent to deny letter, absent a rule preventing substantial amendments to an application in midproceeding. McDonald, 346 So.2d at 584. What the hearing officer cannot do is to formulate the proposal before the agency. If an applicant does not choose to modify a permit application, then the hearing officer and the Department have no choice but to take final agency action on the application as originally submitted. The final agency action formulated in a section 120.57 hearing may or may not be different from the preliminary agency action indicated by the Department's intent letter, as indicated by the McDonald opinion. But it nevertheless is final agency action on the applicant's proposal before the agency, not the hearing officer's suggestions as to what the proposal before the agency, not the hearing officer's suggestions as to what the proposal should be to meet permitting standards.

Nothing in the hearing officer's Recommended Order indicates that Petitioners have modified their permit application as suggested by the hearing officer; yet the hearing officer recommends that a permit be granted to include the following:

1. The installation of culverts or other similar structures of appropriate size, the number and size of which to be determined by the Department, even though the application is for only two culverts (see Finding of Fact number 11 of the Recommended Order). The hearing officer even found that the two-culvert system proposed by the Petitioners would have merely a cosmetic effect and not significantly improve the natural water flow between the canals.

   
   

2. That the fill or spoil resulting from the dredging of the canal not be placed on Big Pine Island or any surrounding property at any elevation below

1. feet, even though the application proposes that all the fill material resulting from the dredging will be deposited below the 59.5 foot elevation. (See Finding of Fact number 2 of the Recommended Order).

   
   

   In the Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Recommended Order submitted by Petitioners to the hearing officer on May 29, 1980, Petitioners insist on a Recommended Order approving "the Petitioners' permit application of May 9, 1979" without evidence of any consent to modify their permit application other than as submitted or as suggested by the hearing officer.

   
   

   The hearing officer made the following findings and conclusions which mandate that the permit application presently before the agency be denied:

   
   

   1. [Findings of Fact number] 11. In order to restore circulation, it would also be necessary to construct a series of culverts evenly distributed under the causeway. The two-culvert system proposed by the Petitioners would have a cosmetic effect and

      not significantly improve the natural water flow between the canals.

      
      

   2. [Findings of Fact] 13. The proposed filling of the island which is to occur below the 59.5-foot elevation will reduce the river's flood storage capacity and the area capable of supporting plant and animal life. The private benefit of placing the spoil from the dredging project on the island below the 59.5-foot elevation is outweighed by the negative impact associated with the elimination of a significant amount of lowlying marshland. Adequate alternative means exist to provide fire protection to the residents of the island, and the filling of outlying marshes on the island is not necessary to accomplish this purpose.

      
      

   3. [Conclusion of Law number] 4. Pursuant

      to Section 253.124(2), Florida Statutes, which applies to filling activities, the applicant must make an affirmative showing "that such activity will not interfere with the conservation of fish, marine and wildlife or the natural resources to such an extent as to be contrary to the public interest. ,"

      See also Section 17-4.29(6), Florida Administrative Code. The Petitioners have failed to make such a showing in this case.

      
      

   4. [Conclusion of Law number] 5. The proposed dredging and filling activities are to occur in the waters of the state as defined in Section 403.031(3), Florida Statutes. The standards for issuance or denial of this permit pursuant to Chapter 403, Florida Statutes, are found in Sections 17-4.03, 17-4(2) and 17-4.28(3), Florida Administrative Code, which require an applicant to provide reasonable assurances to the Department that the proposed activity will not result in violation of the water quality standards of Chapter 17-3, Florida Administrative Code. The Petitioner have provided reasonable assurances as required by aforecited sections if the project is modified in accordance with the conditions set forth in this recommended order. If the project is not modified, reasonable assurances to not exist that the project will

meet water quality standards. (Emphasis added.)

In addition, the hearing officer found in Conclusion of Law number 6 that the application as submitted does not meet the standards required for permitting as set forth by statute and regulation. (See Paragraph Number 2 above).

Accordingly, for the reasons set forth above, the hearing officer was incorrect in recommending that a permit be issued. Having made the findings and conclusions set out above, the only final agency action that can be formulated on the proposal before the agency is one of permit denial. The exceptions filed by the Department are adopted.

CONCLUSION AND ORDER

Having considered the Recommended Order, including the Findings of Fact, Conclusions of Law, and Recommendation, Respondents exceptions, and otherwise being fully advised, it is therefore

ORDERED:

1. The hearing officer's Findings of Fact are adopted to toto.

   
   

2. The hearing officer's Conclusion of Law number 6 is rejected with respect to the last two sentences, as noted in the discussion above.

   
   

   To the extent that all other Conclusions of Law of the hearing officer are not in conflict with the discussion of the applicable law contained above, they are adopted.

   
   

3. The hearing officer's recommendation is rejected for the reasons set forth above.

   
   

4. Petitioner's Motion To Strike Exceptions is denied.

It is further ordered that Petitioners' permit application is DENIED. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th day of

September, 1980.

STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION

FILING AND ACKNOWLEDGMENT JACOB D. VARN

Secretary

Filed on this date, pursuant to Twin Towers Office Building S120.52(9), Florida Statutes, with 2600 Blair Stone Road

the designated Department Clerk, Tallahassee, Florida 32301 receipt of which is hereby acknow- (904) 488-4807

ledged.

Diane Quigg 11-3-80

For Linda Bevard, Clerk

Docket for Case No: 80-000153

Orders for Case No: 80-000153