STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GASPARILLA ISLAND CONSERVATION AND ) IMPROVEMENT ASSOCIATION, INC., ) ORGANIZED FISHERMEN OF FLORIDA, ) FLORIDA DIVISION OF THE ISAAK WALTON ) LEAGUE, FREEMAN BOYNTON, EUGENE C. ) ENLOW and RALPH COLE, )

)

Petitioners, )

)

vs. ) CASE NO. 80-1544

) SUNSET REALTY CORPORATION and STATE ) OF FLORIDA DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings on November 18, 19 and 20, 1980, in the Charlotte County Courthouse, Punta Gorda, Florida.

The ultimate issue for determination at the hearing was whether respondent Sunset Realty Corporation is entitled to a permit from the Department of Environmental Regulation to construct a bridge and causeway, with related fill, groins and riprap, between Three Sisters Island and Boca Grande Isles in Charlotte County, Florida.

APPEARANCES

For Petitioners: Joseph W. Landers, Jr.

Ausley, McMullen, McGehee, Carothers and Proctor

Post Office Box 391 Tallahassee, Florida 32302

and Charles G. Batsel

Wotitzky, Wotitzky, Johnson, Mandell and Batsel

201 West Marion Drive

Punta Gorda, Florida 33950

For Respondent Robert M. Rhodes and Sunset: Terry E. Lewis

Messer, Rhodes, Vickers and Hart Post Office Box 1876 Tallahassee, Florida 32302

and Lester E. Durst

Farr, Farr, Haymans, Mosely and Emerick

Post Office Box 635

Punta Gorda, Florida 33950

For Respondent H. Ray Allen

DER: Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301 INTRODUCTION

By Petition for Formal Hearing filed with the Department of Environmental Regulation on August 6, 1980, petitioners requested a formal administrative hearing concerning the Department of Environmental Regulation's Letter of Intent to Issue a permit to respondent Sunset Realty Corporation for the construction of a bridge and the placement of fill, riprap and groins in Charlotte Harbor.

The petitioners also filed a Motion to Stay the proceedings pending fulfillment of the requirements of Section 253.124, Florida Statutes, concerning local county approval of the project. Sunset Realty Corporation filed a Petition to Intervene in the proceeding and a reply to the petitioners' Motion to Stay. By Order dated August 18, 1980, the Secretary of the Department of Environmental Regulation denied the petitioners' Motion to Stay and forwarded the matter to the Division of Administrative Hearings without prejudice to either party to raise the issues contained in their motion before the Division of Administrative Hearings. On September 16, 1980, respondent Sunset moved to dismiss the petition. On September 26, 1980, petitioners filed an Amendment of Petition for Formal Hearing. By Order dated October 7, 1980, the motion of respondent Sunset to dismiss was denied. Thereafter, petitioners filed a Motion to Stay and Remand and the respondent Sunset replied to said motion. A motion hearing was held on October 30, 1980, and the petitioners' Motion to Stay and Remand was denied.

At the administrative hearings held on November 18-20, 1980, Hearing Officer's exhibits 1-16 were received into evidence pursuant to the parties' stipulation. As witnesses, the petitioners presented the testimony of Freeman Boynton, a petitioner; Barney Koren, a member and officer of the Gasparilla Island Conservation and Improvement Association, Inc.; John H. King and Ralph Cole, commercial fishermen and members of Organized Fishermen of Florida; William David Key, Jr., Steven R. Lau, Kevin Erwin, and Jeremy Craft all of whom were accepted as experts in the field of marine biology; and Brian J. Barnett, who was accepted as an expert in the area of fish and wildlife. Mr. Craft's area of expertise also included water quality and Mr. Lau's expertise included ichthyology. Petitioners also offered into evidence their Exhibits 1 through 13 and these were received. The Department of Environmental Regulation presented the testimony of Richard A. Lotspeich who was accepted as an expert in the field of marine biology, and Suzanne Walker, the Chief of Bureau of Permitting for DER. Respondent Sunset adopted the testimony of Richard A. Lotspeich. The respondent Sunset also presented the testimony of Durbin C. Tabb, who was accepted as an expert in the field of marine biology and estuarine ecology, and David Tackney, who was accepted as an expert in the field of hydrographic engineering.

During the hearing, respondents moved to dismiss this proceeding for lack of standing on the part of the petitioners. Inasmuch as the petitioners presented no evidence concerning the Florida Division of the Isaak Walton League or Eugene C. Enlow, these two parties were dismissed as petitioners. As to the remaining petitioners, the undersigned either denied the Motion to Dismiss or

reserved ruling. The issue of standing will be discussed in the Conclusions of Law section of this Order.

At the conclusion of the respondent Sunset's case, the petitioners moved for a directed verdict. This motion was denied by the Hearing Officer.

The petitioners and respondent Sunset have filed proposed findings of fact, conclusions of law and recommended orders. To the extent that the proposed findings of fact submitted by these parties are not included in this Recommended Order, they are rejected as being either unsupported by competent, substantial evidence, irrelevant and immaterial to the issues for consideration or as constituting conclusions of law as opposed to findings of fact.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the Hearing Officer's view of the project site, the following relevant facts re found:

1. Respondent Sunset Realty Corporation initially applied to the Department of Environmental Regulation on March 2, 1979, for a permit to place 54,600 cubic yards of fill adjacent to Three Sisters Island and waterward of the mean high water line in Charlotte Harbor in order to construct a causeway and a sixty-foot bridge from Boca Grande Isles to Three Sisters Island. The applicant Sunset was notified on May 3, 1979, that adverse comments on the project had been received due to its impact upon biological resources. DER suggested that the application be modified by bridging the entire submerged area to alleviate biological and hydrographic concerns.

   
   

2. On June 21, 1979, the respondent Sunset filed a revised application which reduced the volume of fill from 54,600 cubic yards to 25,000 cubic yards and extended the bridge from sixty feet to ninety feet long.

   
   

3. The Department of Environmental Regulation forwarded to Lee County a summary of the Department's biological and hydrographic report. Additional information was not requested by the County. On October 31, 1979, the Lee County Commission considered the information made available to them from the Department and passed a resolution giving their approval to the first revision of the project by respondent Sunset.

   
   

4. Finding that the applicant had not provided reasonable assurance that immediate and long-term impacts of the project would not result in violation of state water quality standards for Class II waters, the Department of Environmental Regulation issued its Intent to Deny Sunset's permit application on March 24, 1980.

   
   

5. After a biological and hydrographic study of the project area, Sunset filed a second revision to its project on June 30, 1980. This revised application requested a permit for 10,000 cubic yards of fill and a 120-foot long bridge. In addition, this revision contained plans to install groins at the south end of Three Sisters Island and on Boca Grande Isles, to place riprap along the face of the fill, to remove and relocate existing oyster bars, to maintain turbidity barriers around the project during construction, and to direct stormwater run-off from the concrete bridge to an upland retention area on Three Sisters Island. It was also stipulated by respondent Sunset at the hearing that it would agree, as a condition of the permit, to replant mangrove vegetation along the shoreline of Three Sisters Island. On July 18, 1980, the

   Department of Environmental Regulation issued a Letter of Intent to Issue the applicant a permit for the revised project. The Department of Environmental Regulation did not seek reapproval of the revised project from the Lee County Commission because the scope and impact of the revised project were substantially reduced. It is not the policy of DER to request a new local approval for reduced projects.

   
   

6. All property within the project boundary including submerged lands to be filled is held in fee simple by respondent Sunset. The waters affected by the proposed project are Class II waters, but are unclassified by the Department of Natural Resources as to shellfish harvesting. The nearest Class II waters which thus far have been approved for commercial shellfish harvesting are located approximately one and a half miles north of the project site.

   
   

7. The proposed project would involve the destruction and elimination of approximately one acre of productive marine bottoms. The area has an abundance of grass beds and organisms that constitute a viable marine nursery and habitat. The area is not considered a spawning ground for any significant commercial or sport fish species. While the project will eliminate one acre of shallow water and productive bottom resources, the project should have no permanent effect upon the quality of the remaining surrounding waters. Three different species of mangroves vegetate the shoreline and the project would entail the removal of approximately 2/10 acre of mangroves. As indicated above, the applicant has agreed to insert a condition in the permit to revegetate mangroves around the site. The project will also entail the removal of one or two oyster bars. Live oysters can be removed and relocated by the use of floating cages. Relocation of the oysters to the riprapping and bridge pilings should increase their productivity. While the proposed fill will eliminate a wading bird habitat, birds will not otherwise be affected except during the construction of the project.

   
   

8. The area around Three Sisters Island is an excellent fishing ground for line and net fishing for trout, red fish, mullet and sheepshead. Concern was expressed by commercial fishermen at the hearing that the bridge would obstruct net fishing, that the construction of the bridge would drive the fish away temporarily and that the fish, being creatures of habit, would not come back.

   
   

9. The 120-foot bridge itself would have a minor effect of approximately 2% upon the restriction of flow in the area. A flow resistance is presently caused by the channel itself, a sharp bend in the channel that occurs at a constriction or spit, and the spit itself. The spit severely restricts flow and the channel needs to be enlarged. The remedial measure proposed is to place groins on the spit and on Boca Grande Isles across the spit. This will gradually enlarge the opening and reduce constriction. The placement of groins could provide a 40% increase in flow through the channel, and the increased circulation will improve the overall system. The two groins proposed are 40 feet and 80 feet in length. The groins will intercept the transport of sand and the pass will thereby be enlarged. The groins will be visible to boaters in shallow water and will not be a significant hazard to navigation.

   
   

10. Three Sisters Island is a fifteen acre island to be utilized by Sunset Realty Corp. for residential development. Employees of DER who testified at the hearing were not aware of DER ever permitting filling in Class II waters for the purpose of aiding a private development or use.

    
    

11. Other regulatory agencies providing comments on the proposed project after its first revision recommended that all fill be deleted from the project

    plans and that the bridge be constructed so as to span the entire submerged lands and shoreline wetlands. These agencies included the United States Department of the Interior, the Department of the Army, the Florida Game and Fresh Water Fish Commission, the United States Department of Commerce and the United States Environmental Protection Agency.

    
    

12. With the exception of Durbin Tabb and Richard Lotspeich, both of whom felt that the destruction of one acre of bottom resources would not be significant to the total system, all other experts in marine biology who testified at the hearing felt that spanning the entire area with a bridge and eliminating the fill would provide a viable alternative to the permanent elimination of wetlands and shorelands.

    
    

13. The petitioner Gasparilla Island Conservation and Improvement Association, Inc. is a non-profit, tax exempt corporation which was incorporated in 1971. The qualification for membership is the ownership of real property on Gasparilla Island. Approximately 700 property owners on Gasparilla Island are eligible to be members of GICIA. The actual membership is approximately 446. Twenty-two members own property on Boca Grande Isles, the subdivision closest to Three Sisters Island. Among the purposes of the GICIA are the promotion of

    
    

    Land, water and wildlife conservation uses and purposes in the Gasparilla Island area in Lee County and Charlotte County, Florida, including the preservation of ecology of the area, the protection of fish and shellfish

    breeding areas, the preservation of wildlife, and the promotion of anti-pollution measures.

    
    

    Members of the association use the proposed project area for recreational boating, commercial fishing, shellfish gathering, swimming, fishing and enjoyment of the natural flora, fauna and wildlife. Association members will be adversely affected by the destruction of grasslands, mangroves and oyster beds.

    
    

14. The Organized Fishermen of Florida, Inc. (O.F.F.) is a non-profit corporation with chapters throughout the State of Florida. Its purposes include the protection of the fishing industry of Florida and the promotion and sponsorship of conservation. Some members of O.F.F. regularly fish in the Three Sisters Island area that would be impacted by the proposed project. No evidence was presented at the hearing that the State Board of Directors of O.F.F. officially sanctioned witnesses to appear on behalf of the incorporated Organized Fishermen of Florida.

    
    

15. No evidence was presented at the hearing as to the standing or substantial interest of the Florida Division of the Izaak Walton League or Eugene C. Enlow, both listed as Petitioners in the "Amendment of Petition for Formal Hearing."

    
    

16. Petitioner Freemen Boynton is the owner of a residence located on Lot No. 98 on Boca Grande Isles. The proposed access bridge and groins are to be constructed on Lots No. 99 and 100 which are contiguous to Mr. Boynton's lot. The groin on Lot No. 99 could cause sand and other debris to accumulate upon Mr. Boynton's riparian property. Petitioner Boynton uses his home on Boca Grande Isles about two and one-half months per year and fishes along the shore, collects oysters, conch and shells and engages in bird watching. He is a member of the Gasparilla Island Conservation and Improvement Association, Inc., and he

    feels that the proposed project would remove some of the recreational aspects of his property and Three Sisters Island.

    
    

17. Petitioner Ralph Cole is 71 years old and has been a commercial fisherman in the Charlotte Harbor area since the age of 12. He fishes the Three Sisters Island area every week. He feels that the area is an excellent fishing ground and that the proposed bridge would be in the way of striking a net.

    
    

    CONCLUSIONS OF LAW

    
    

18. the respondent Sunset Realty Corporation contends that the petitioners have failed to demonstrate that their substantial interests will be affected by the proposed project. The undersigned agrees with respect to petitioners Eugene

    C. Enlow and the Florida Division of the Izaak Walton League, inasmuch as no competent evidence was presented as to these two parties. The evidence regarding the Organized Fishermen of Florida, Inc. was similarly defective as to standing. There was no evidence that the statewide incorporated organization had given any witness the authority to testify on behalf of the Organization. While one witness stated that he was requested to testify by an officer from a local chapter of O.F.F., no evidence was presented to establish that the chapter had properly authorized such a request or that the chapter itself was a viable entity to be treated as a person under Chapter 120, Florida Statutes. It is therefore concluded that petitioners Eugene C. Enlow, the Florida Division of Izaak Walton League and the Organized Fishermen of Florida, Inc. have failed to demonstrate their standing as parties in this proceeding.

    
    

19. The petitioner Gasparilla Island Conservation and Improvement Association, Inc. has sufficiently demonstrated its standing to challenge the issuance of a permit for the proposed project. Because of the Association's purposes, its members' physical proximity, daily exposure and use of the Three Sisters Island/Boca Grande Isles area, any detrimental effect upon the water quality or damage to the natural habitat of the area would adversely affect their substantial interests. Petitioner Freeman Boynton, as the owner of a residence immediately adjacent to the proposed bridge access and one of the groins and as a recreational user of the subject area, has likewise demonstrated his substantial interest in the permitting of the proposed project. Finally, it is concluded that Ralph Cole, a commercial fisherman who regularly fishes and derives his income from fishing in the project area, has demonstrated his standing to be an individual petitioner in this proceeding.

    
    

20. Florida Statutes, Section 253.124 requires that a private person, firm or corporation desiring to add to or extend existing lands bordering on or in navigable waters must obtain local approval for the same. Petitioners urge that respondent Sunset has not supplied the Department of Environmental Regulation with the required local approval for its second revised proposed project. The evidence illustrates that local approval was obtained from the Lee County Commission for the applicant's first revised project. At that stage, the project entailed the placement of 25,000 cubic yards of fill and the construction of a ninety-foot long bridge. The second and subject proposed project is for 10,000 cubic yards of fill, a 120-foot long bridge, riprap and groins -- a project of obviously lesser scope and impact than the one previously approved by the local authority. It was uncontroverted that DER has a policy not to require a new local approval for a revised project when the revision is one which reduces the size and impact of the project. It is therefore concluded that the local approval requirements of Section 253.124, Florida Statutes, have been met by the applicant Sunset Realty corporation insofar as the act of approval is concerned. Whether or not the Lee County Commission appropriately

    gave its approval to the first revised project is not an issue properly before the undersigned Hearing Officer in this proceeding.

    
    

21. Pursuant to applicable statutes and rules of the Department of Environmental Regulation, an applicant for a dredge and/or filling project in navigable waters must demonstrate that the project will not

    
    

    ". . . interfere with the conservation of fish, marine and wildlife or other natural resources, to such an extent as to be contrary to the public interest, and will not result in the destruction of oyster beds, clam beds, or marine productivity, including, but not limited to, destruction of natural marine habitats, grass flats suitable as nursery or feeding grounds

    for marine life, and established marine soils suitable for producing plant growth of a type useful as nursery or feeding grounds for marine life or natural shoreline processes to such an extent as to be contrary to the public interests." Section 253.123(2)(d), Florida Statutes. also see Rule 17-4.29(6), Florida Administrative Code.

    
    

    The applicant is further required by Rule 1704.28(3), Florida Administrative Code, to

    
    

    "affirmatively provide reasonable assurance to the department that the short-term and long-term effects of the activity will not result in violations of the water quality criteria, standards, requirements and provisions of Chapter 17-3, Florida Administrative Code."

    
    

    The special value and importance of Class II waters to Florida's economy has been specifically recognized by the Department in Rule 17-4.28(8), Florida Administrative Code. That Rule requires the denial of dredging or filling projects in Class II waters

    
    

    "except where the applicant has submitted a plan of procedure which will adequately protect the project area and areas in the vicinity of the project from significant damage."

    
    

22. Applying those statutory and regulatory provisions to the instant project, the evidence demonstrates that the bridge itself will not interfere with the conservation of fish, marine, wildlife or other natural resources , nor will it create a navigational hazard or impede the natural flow of navigable waters to such an extent as to be contrary to the public interest. the same is true with the two proposed groins. Indeed, the evidence illustrates that the groins will cause the flow of water to be increased and thus the quality of the surrounding waters will be improved. The undersigned concludes that, with respect to the placement of the bridge and the groins, the applicant Sunset has shown that the project area will be adequately protected from significant damage (Rule 1704.28(8), Fla. Admin. Code), that said placement will not be contrary to

    the public interest (Rule 17-4.29(6), Fla. Admin. Code and s. 253.123, Fla. Stats.) and that violations of water quality criteria and standards will not occur (Rule 1704.28(3), Fla. Admin. Code.).

    
    

23. The placement of 10,000 cubic yards of fill adjacent to the bridge will result in the total and permanent elimination and destruction of approximately one acre of productive shallow bay bottoms which constitute a viable marine nursery and habitat in Class II waters. Such an impact obviously results in the destruction of natural marine habitats and grass flats suitable for nursery and feedings for marine life to such an extent as to be contrary to the public interest. The permanent elimination of one acre of Class II waters cannot "adequately protect the project area and areas in the vicinity of the project the project area and areas in the vicinity of the project from significant damage" within the meaning of Rule 1704.28(8)(a), Florida Administrative Code. Class II waters are recognized to be of special value and importance. While the applicant has agreed to relocate mangroves and oyster beds in the area, there is no way in which the eliminated one acre of natural and valuable marine bottomlands and grass flats can be replaced. The evidence also indicates that the permitting of fill in Class II waters for private development purposes would be contrary to past agency practice. No explanation was provided by the Department for such a deviation.

    
    

24. In summary, it is concluded that that portion of the application pertaining to the construction of a bridge and two groins would not be contrary to the public interest and would not be violative of applicable water quality standards. However, the placement of 10,000 cubic yards of fill at the bridge accesses and the resultant permanent elimination of one acre of productive and valuable bay bottom resources in Class II waters is contrary to the public interest and constitutes a short and long-term violation of water quality criteria.

RECOMMENDATION

Based upon the findings and fact and conclusions of law recited herein, it is RECOMMENDED that the application of Sunset Realty Corporation for a permit be DENIED insofar as it includes the deposition of 10,000 cubic yards of fill in Class II waters.

Respectfully submitted and entered this 24th day of February, 1981, in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1981.

COPIES FURNISHED:

Joseph W. Landers, Jr. Ausley, McMullen, McGehee,

Carothers and Proctor Post Office Box 391 Tallahassee, Florida 32302

Charles G. Batsel

Wotitzky, Wotitzky, Johnson, Mandell and Batsel

201 W. Marion Drive

Punta Gorda, Florida 33950

Robert M. Rhodes and Terry E. Lewis Messer, Rhodes, Vickers and Hart Post Office Box 1976

Tallahassee, Florida 32302

Lester E. Durst

Farr, Farr, Haymans, Moseley and Emrick Post Office Box 635

Punta Gorda, Florida 33950

Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

H. Ray Allen

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

Docket for Case No: 80-001544

Orders for Case No: 80-001544