STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
HERNSTADT BROADCASTING )
CORPORATION, )
)
Petitioner, )
)
vs. ) CASE NO. 80-1702
) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )
)
Respondent, )
)
and )
)
THE CHARTER CLUB, INC., a )
Florida non-profit corporation, )
)
Intervenor. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this cause on January
13 and 14, 1981, and March 6, 1981. The initial session of this hearing was conducted in the Dade Regional Service Center, 401 N. W. 2nd Avenue, Miami, Florida, and the continuation of the hearing was conducted in the Miami Beach, Florida, City Hall.
APPEARANCES
For Petitioner: Robert A. Routa, Esquire
217 South Adams Street Tallahassee, Florida 32301
For Respondent: Randall E. Denker, Require
Alfred J. Malefatto, Esquire Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32301
For Intervenor: John G. Fletcher, Esquire
7000 Red Road, Suite 222 South Miami, Florida 33143
ISSUE
The issue here concerns the entitlement of the Petitioner, Hernstadt Broadcasting Corporation to be granted certain environmental permits from the Respondent, State of Florida, Department of Environmental Regulation, which would allow the Petitioner to construct a radio transmitter tower and access dock within the Biscayne Bay which is located in Dade County Florida. 1/
FINDINGS OF FACT
The Petitioner in this action, Hernstadt Broadcasting Corporation, owns and operates radio station WKAT, which is located in Miami Beach, Dade County, Florida. The Petitioner is licensed by the Federal Communications Commission to pursue this enterprise.
On April 30, 1980, the State of Florida, Department of Environmental Regulation received an application from the Petitioner, which application requested permission to construct a radio transmitter tower and access dock in Biscayne Bay, Dade County, Florida. (The tower end dock are part of a proposed station complex in which the radio station building is to be constructed upland from the Bay.)
The project, if allowed, would be located off the north side of the Julia Tuttle Causeway which connects the City of Miami and the City of Miami Beach via the Biscayne Bay. The tower and access dock, if constructed, would be located in submerged lands owned by the State of Florida. In view of the location of this apparatus in Biscayne Bay, it would be subject to the provisions of the Biscayne Bay Aquatic Preserve Act found in Chapter 258, Florida Statutes, together with other provisions of statute and rule.
To place the access dock in the Bay, the Petitioner proposes to drive pilings into the Bay bottom to support the access dock which is 200 feet long and four (4) feet wide. The support mechanism for the radio tower would also be constructed by the driving of pilings into the Bay bottom and the radio transmitting tower, once built, would be 400 feet tall and would have attached stabilizing guy wires connected to anchors driven into the Bay bottom. As the pilings are driven into the floor of the Bay, the displaced soils will be compressed into lower elevations or redistributed against the pilings.
Respondent's Exhibit No. 15, admitted into evidence, is a copy of the original application for permit, which was modified by site plans and sketches depicted in Respondent's Exhibit No. 16, admitted into evidence, shortening certain dimensions related to the access dock. (These modifications came about subsequent to the Department of Environmental Regulation's permit application appraisal found as Petitioner's Exhibit No. 10, which is dated June 23, 1980.)
After review of the project, in the face of the aforementioned modifications, the Department of Environmental Regulation issued a letter of intent to deny the permit request. This letter of intent was dated September 9, 1980, a copy of which may be found as petitioner's Exhibit No. 11, admitted into evidence. The authority stated for such denial are these provisions of Subsection 258.165(3)(b), Florida Statutes (Supp. 1980), and Rule 17-4.242(1), Florida Administrative Code. Subsequent to the issuance of the letter of intent to deny, a further modification was made on the project increasing the length of the proposed access dock to the presently requested 200 feet. This modification is depicted in petitioner's Exhibit No. 12, admitted into evidence, which shows site plans and other pertinent information related to the project.
Another modification to the project which the Petitioner claims is not subject to permit review by the Department of Environmental Regulation, and for which the Department of Environmental Regulation takes a contrary point of view, concerns the use of a grid of nickel-plated copper straps, approximately 40 feet by 40 feet, constituted of a mesh of approximately 1/4 inch in diameter by 1 inch sections to be placed underneath the tower and on the Bay bottom for
purposes of grounding the tower. This item was not made known to the Respondent until September 30, 1980, at a time subsequent to the letter of intent to deny.
The Petitioner in this action pursues the project on the basis of a joint use agreement entered into with the State of Florida, Department of Transportation, in which the Department of Transportation, in return for the ability to use the radio tower for communications in connection with a surveillance and traffic control system for Interstate Highway-95 and for the ability of the City of Miami, Florida, to use the facility for a tactical communication repeater installation, would grant to the Petitioner the Department of Transportation's rights and opportunities as easement holder in the area where the subject project would be constructed. See Petitioners' Exhibit No. 3, admitted into evidence. The Department of Transportation's rights stem from an easement grant from the Trustees of the Internal Improvement Trust Fund. See Petitioner's Exhibit No. 13, admitted into evidence.
The rights of the Petitioner, by assignment from the Department of Transportation, do not relieve Petitioner of the obligation to gain the necessary approval of the Trustees of the Internal Improvement Trust Fund in the person of the State of Florida, Department of Natural Resources for permission to use those submerged lands over which the access walkway and tower would be constructed, notwithstanding any rights and privileges assigned to the Petitioner by the Department of Transportation as easement from the Trustees of the Internal Improvement Trust Fund. This is true because the perpetual easement granted from the Trustees to the Department of Transportation for
right-of-way and dredging purposes related to the roadway which is constituted of the Julia Tuttle Causeway and to the adjacent Bay bottoms related to construction and maintenance of that roadway, does not envision assignment of the submerged lands to an entity in the position of the Petitioner, which entity does not have as its purpose the construction or maintenance of the roadway; hence, the necessity to gain permission from the Department of Natural Resources if the access dock and tower are to be constructed on the submerged land of the State. The easement held by the Department of Transportation is specific in nature and does not contemplate the construction of a radio station. (It is not necessary to comment on the question of whether a joint use agreement between the Department of Transportation and Hernstadt as that Department's assignee for rights and privileges bestowed upon the Department from the Trustees based on the easement rights granted on October 2, 1941, would allow the construction of the building of the radio station building which would be at the upland terminus of the access dock which also adjoins the radio tower, the Department of Environmental Regulation having offered no claim for permitting jurisdiction over the radio station building.)
The Petitioner proposes to move its radio station from the existing location in Miami Beach because buildings in the general area of the radio station interfere with the radio signal and, in addition, there is interference caused by radio transmissions from Cuba. The terms of the license held by Petitioner on issuance from the Federal Communications Commission limit the movement of the station's transmitter tower to a location no more than four (4) miles from the current location. At the time of the hearing, the Petitioner had not located an alternative tower site, other than the proposed site.
As stated before, if the tower were constructed, the State of Florida, Department of Transportation would utilize the tower in its communications network and the City of Miami Fire and Police Departments would likewise desire to use the tower. The Florida Marine Patrol and the Florida Highway Patrol
would also be interested in using the proposed tower for communications purposes.
The City of Miami Planning and Advisory Board and the City Commission of that municipality would be in favor of the construction of the proposed radio tower.
Dade County, Florida, has adopted a Comprehensive Master Plan, copies of which may be found as Respondent's Exhibit No. 19, admitted into evidence. Within that document is a discussion of environmental concerns within the county to include Biscayne Bay and, in particular, concern for protection of environmentally sensitive areas such as Biscayne Bay and an interest by the County to provide a wide range of public water oriented opportunities for the populace. Subsequent to the time of the submission of the permit application, and specifically, in October, 1980, Dade County, through its Metropolitan Planning Department and in conjunction with the Metropolitan Dade County Environmental Resources Management Department prepared a proposed Biscayne Bay Management Plan, a copy of which may be found as Respondent's Exhibit No. 17, admitted into evidence. This plan was approved by the Board of County Commissioners of Dade County, Florida, by an Ordinance, a copy of which may be found as the Respondent's Exhibit No. 18, admitted into evidence. The Biscayne Bay Management Plan encourages the enhancement of public access to the Bay for uses such as fishing, boating, shoreline wading and view in and the preservation and enhancement of the environmental, chemical and aesthetic qualities of the Bay. Furthermore, if the necessary permission could be obtained, Dade County, has future plans to use the subject Julia Tuttle Causeway as a public access to the Bay. The location of the radio tower and associated facilities would interfere with the proposed use by Dade County.
The Department of Environmental Regulation, in keeping with Section 403.0615, Florida Statutes, 2/ through a program in conjunction with Dade County is attempting the restoration of the biological and chemical characteristics of the Biscayne Bay. Some of the items included in this program would be enhancement of aquatic vegetation, including seagrasses and mangroves and the promotion of aesthetics and public access to Biscayne Bay, to include the area of the Julia Tuttle Causeway.
Radio station WKAT presents public service programs; is a part of the Emergency Broadcasting System and broadcasts emergency information in times of natural disaster.
On the question of environmental implications of this project, the placement of the pilings would cause the destruction of certain seagrasses in that area, while at the same time promoting the introduction of marine life along the surfaces of the tower and dock supports. Seagrasses in the area where the grounding system would be placed may be destroyed and although the copper to be used would be nickel plated, thereby inhibiting the release of the toxic properties of the coated copper, eventually the nickel plating would break down and the marine life communities adjacent to the mesh would be harmed by the copper. The loss of seagrasses under the grid could cause a reduction in fish population.
The installation of the radio tower and access dock in the Biscayne Bay is an impediment to navigation; however, the Petitioner intends to place channel markers to divert boat traffic away from the tower and its environs.
There is no expected difficulty with run-off, discharges or other forms of pollution related to the construction or operation of the tower facility, although there will be some turbidity caused in the construction phases of the project.
The project would be located in a State Aquatic Preserve within the meaning of Chapter 258, Florida Statutes; would be located in waters of the State within the meaning of Chapters 253 and 403, Florida Statutes; would be in navigable water within the meaning of Chapter 253, Florida Statutes, end would be in an Outstanding Florida Water within the meaning of Rule 17-4.242(1), Florida Administrative Code.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.
At the time of the hearing, ruling was reserved on the subject of the admission of the following Exhibits. Having considered those Exhibits, in view of the record in this cause, Petitioner's Exhibits Nos. 4 and 16 are denied admission. Respondent, Department of Environmental Regulation's Exhibits Nos. 3, 4 and 5 are denied admission. Respondent, Department of Environmental Regulation's Exhibits Nos. 17 and 18 are admitted.
At the conclusion of the presentation by the Petitioner, the Respondent and Intervenor moved to have a verdict or decision directed in their favor. After considering that motion, the motion was denied and this entry in the Recommended Order serves to give written notice of that denial.
The Petitioner's request for grant of a default permit in keeping with the terms and conditions of Section 120.60, Florida Statutes, is denied.
The State of Florida, Department of Environmental Regulation has permitting jurisdiction over the Petitioner's proposed project in keeping with the following provisions: Section 258.165, Florida Statutes (Supp. 1980); Section 253.123, Florida Statutes (1979); Section 403.087, Florida Statutes (1979); Rule 16Q-18.14, Florida Administrative Code; Rule 17.407, Florida Administrative Code; Rule 17-4.242(1), Florida Administrative Code; Rules 17-
4.28 and 17-4.29, Florida Administrative Code. The process of permit review must be accomplished in keeping with the requirement that the Department of Environmental Regulation act consistently when contrasting this review process with those processes that have occurred before or that are ongoing. See Rule 17-1.63, Florida Administrative Code. 3/
In describing the purpose of the Biscayne Bay Aquatic Preserve Act which is constituted of Section 258.165, Florida Statutes (Supp. 1980), that provision says at Subsection 258.165(1), Florida Statutes, supra, "It is the intent of the legislature that Biscayne Bay be preserved in an essentially natural condition so that its biological and aesthetic values may endure for the enjoyment of future generations." The Act places the responsibility for the administration of these purposes in the hands of the Board of Trustees of the Internal Improvement Trust Fund and it instructs the Trustees to make no further sale, transfer or lease of the sovereignty submerged lands within the Biscayne Bay except in the event of a showing of an extreme hardship for the applicant and a determination that the aforementioned sale, transfer or lease would be in the public interest. See Subsection 258.165(3)(a), Florida Statutes.
In this instance, the action by the Trustees in 1941, which granted easement rights to what has become the State of Florida, Department of Transportation, for purposes of highway construction, did not envision the right of the Department of Transportation to, in turn, assign their easement claims over to the named Petitioner in this cause for some purpose other than highway construction and maintenance of that highway system. Therefore, the named Petitioner is not excluded from the requirement to obtain permission from the Board of Trustees of the Internal Improvement Trust Fund before erecting the tower and access dock in the submerged land which is the Biscayne Bay. In summary, the Department of Transportation's easement rights granted in 1941, are not so broad in their scope as to allow for the construction of the tower and access dock in the Biscayne Bay and the assignment of the Department of Transportation's rights to this Petitioner are to no avail. (No determination is made on the question of whether this project is within the "public interest" in the meaning of the aforementioned subsection, in view of the fact that the hearing in this case has been limited to considering the entitlement to permits issued by the State of Florida, Department of Environmental Regulation and determination of public interest under this subsection is a matter incumbent upon the State of Florida, Department of Natural Resources. The effect of this holding is that no permit may be granted in absolute terms prior to getting the necessary permission from the Board of Trustees of the Internal Improvement Trust Fund [Department of Natural Resources] to construct the devices in the Biscayne Bay.)
Among other responsibilities reposed in the Board of Trustees of the Internal Improvement Trust Fund and investigated and regulated by the State of Florida, Department of Environmental Regulation, is that provision Subsection 258.165-(3)(b), Florida Statutes (Supp. 1980), which states the following:
No further dredging or filling of submerged lands of the preserve shall be approved or tolerated by the board of trustees except:
Such minimum dredging and spoiling as may be authorized for public navigation projects or for such minimum dredging and spoiling as may be constituted as a public necessity or for preservation of the bay according to the expressed intent of this section.
Such other alteration of physical conditions as may be necessary to enhance the quality or utility of the preserve.
Such minimum dredging and filling as may be authorized for the creation and maintenance of marines, piers, and docks and their attendant navigation channels and access roads. Such projects may only be authorized upon a specific finding by the board of trustees that there is assurance that the project will be constructed and operated in a manner that will not adversely affect the water quality of the preserve. This subparagraph shall not approve the connection of upland canals to the waters of the preserve.
Such dredging as is necessary for the purpose of eliminating conditions hazardous to
the public health or for the purpose of eliminating stagnant waters, unsightly mud flats, islands, and spoil banks, the dredging of which would enhance the aesthetic quality and utility of the preserve and be clearly in the public interest as determined by the board of trustees.
Any dredging or filling under this subsection or improvements under subsection (5) shall be approved only after public notice and hearings in the area affected, pursuant to chapter 120.
Placement of the mesh grounding device by the Petitioner would constitute filling of the submerged land owned and administered by the State of Florida and permitted for by the State of Florida, Department of Environmental Regulation.
Only an exceptional filling activity would be allowed and the placement of this material does not constitute an activity specifically excepted from the general prohibition against the placement of fill. Consequently, the State of Florida, Department of Environmental Regulation is not entitled to grant the permit requested under the Biscayne Bay Aquatic Preserve Act, nor is the proposed erection of the access dock construction authorized under the terms of Subsection 258.165(3)(c), Florida Statutes (Supp. 1980). 4/ The dock is an activity associated with the construction of a tower and the tower is not authorized to be constructed in view of the attendant placement of the mesh grounding screen, and more importantly, the tower itself not being a dock can not be permitted.
In addition to the prior provisions of the Biscayne Aquatic Preserve Act which have been discussed, the Act also empowers the Board of Trustees of the Internal Improvement Fund to enact rules and to enforce those rules related to carrying out the requirements of the Act, and more specifically, to provide:
Additional preserve management criteria as may be necessary to accommodate special circumstances.
Regulation of human activity within the preserve in such a manner as not to interfere unreasonably with lawful and traditional public uses of the preserve, such as fishing (both sport and commercial), boating, and swimming. Subsection 258.165(4)(a)1. and 2., Florida Statutes (Supp. 1980).
To effect these specific purposes, the Trustees have enacted Chapter 16Q-18, Florida Administrative Code. In addition, that Chapter, through Rule 16Q- 18.04(20), Florida Administrative Code, defines the meaning of the term "public interest" to be:
demonstrable environmental, social and economic benefits which would accrue to the public at large as a result of a proposed action, and which would clearly exceed all demonstrable environmental, and social and economic costs of the proposed action. In determining the public interest in a request for use, sale, lease, or transfer of interest
in sovereignty lands or severance [sic] of materials from sovereignty lands, the board shall consider the ultimate project and purpose to be served by said use, sale, lease, or transfer or severance of materials."
Although the function of this hearing was not that of determining the propriety of the sale, lease or transfer of interest in the sovereignty submerged lands through the conduit of the State of Florida, Department of Natural Resources, the hearing did have an element of consideration of the meaning of "public interest" as it pertains to the Department of Environmental Regulation's function as a regulatory body charged with permit review. With this in mind, notwithstanding the laudable purpose which the Petitioner relates concerning its public service function through programs it broadcasts and its emergency capabilities and the ancillary opportunities to be offered to governmental bodies to use the transmitter tower as a communication link; the project is an unreasonable interference with the lawful and traditional public uses contemplated for the preserve which would include fishing, boating and swimming, both in terms of the area that now exists and the area as it is contemplated to be developed in the future. (The Petitioner has also failed to comply with tire procedures of Rule 16Q-18.14, Florida Administrative Code, on the subject of the necessary approval of the State of Florida, Department of Natural Resources, related to sales, leases or transfers of the land held by the Trustees.)
Subsection 258.165(4)(b), Florida Statutes (Supp. 1980), would allow uses within the preserve which are not specifically delineated; however, in this instance, it would be necessary for the Department of Environmental Regulation to find that the purposes to be served by the installation of the radio tower are compatible with the "overall purpose" of the Biscayne Bay Aquatic Preserve Act. The guiding principle in making this determination is that introductory statement to the Act which calls for the preservation of the Biscayne Bay in its essentially natural condition, hence promoting biological and aesthetic values for the benefit, not only of the people who may now take advantage of this phenomenon, but for those persons yet to come. Here, as before, the purpose of the Petitioner, though more than a commercial venture, is not in keeping with the idea of maintaining the Biscayne Bay in its essentially natural condition, particularly so as it pertains to aesthetic values. As a result, this Petitioner has failed to demonstrate that the activity contemplated in this permit process is one compatible with tire "overall purpose" of the Biscayne Bay Aquatic Preserve Act.
Subsection 258.165(5), Florida Statutes (Supp. 1980), 5/ grants certain riparian rights which may not be disturbed by the implementation of this legislation. A review of the original easement granted from the Trustees to the predecessor to the current State of Florida, Department of Transportation, as stated before, does not provide for the assignment of rights and privileges under the terms and conditions of the easement which would allow for the construction of a radio station and associated transmitter tower, the easement being limited to highway construction and those matters involved with that activity. Therefore, the Petitioner does not have the type of riparian right spoken to in this provision. On the other hand, if you were to assume that the Petitioner is such an upland property owner adjacent to the preserve who has riparian rights, the Petitioner is not, by this project, making reasonable improvements for ingress and agrees, undertaking mosquito control, establishing shore protection, nor constituted as a public utility which is by this project expanding the public utility function. There is a similarity to the
installation of the radio tower, with its associated communications potential not related to the commercial broadcasting function of the station, and a public utility. This is true in view of the fact that the radio station pursuant to the Communications Act of 1934, as amended, 47 U.S.C. 308 and 309; is an undertaking for the purpose of public interest, convenience and necessity.
Nevertheless, the project contemplated by the Petitioner is one of relocation, not expansion. For that reason, those riparian rights presented to upland owners as designated in this provision are not available to the Petitioner.
The placement of the grounding screen in the Biscayne Bay would be the placement of material in navigable water of the State within the meaning of Section 253.123, Florida Statutes (1979), and Rule 17-4.29, Florida Administrative Code, and would require permission from the State of Florida, Department of Natural Resources, in accordance with Section 253.77, Florida Statutes (1979). 6/ Absent the requirement of the Biscayne Bay Aquatic Preserve Act and Rule 17-4.242(1), Florida Administrative Code, and the additional fact that the Petitioner does not have the permission of the State of Florida, Department of Natural Resources to use the submerged land, nothing found in Section 253.123, Florida Statutes, or Rule 17-4.29, Florida Administrative Code, would prohibit the granting of the permit under the latter provisions. Likewise, Section 403.087, Florida Statutes, 7/ and Rule 17-4.28, Florida Administrative Code, without the problems and prohibitions set forth in the Biscayne Bay Act, the Outstanding Florida Waters Rule and the lack of consent from the Department of Natural Resources; the former provisions within this sentence would not prohibit the grant of permits under those former provisions.
The Biscayne Bay is classified as an Outstanding Florida Water in view of its status as an aquatic preserve. See Rule 17-3.041(4)(f), Florida Administrative Code. Consequently, to be permitted to proceed to construct a stationary installation in this water body, the Petitioner must satisfy the provisions of Rule 17-4.242(1)(a)2., Florida Administrative Code. 8/ For reasons discussed in the treatment of the permitting question under the Biscayne Bay Aquatic Preserve Act, the Petitioner has failed to affirmatively demonstrate that this project is clearly in the "public interest." The project is not in keeping with the provisions of the Biscayne Bay Aquatic Preserve Act and although it would inure to the benefit of certain governmental agencies, to include the City of Miami, it is incompatible with the efforts of Dade County through its Comprehensive Master Plan, its Biscayne Bay Management Plan and the Biscayne Bay Restoration Plan which is administered by the Department of Environmental Regulation. The Biscayne Bay Act and the various plans call for the availability of this area of Biscayne Bay for purposes of recreation in a way which protects the environment and emphasizes aesthetics.
The Respondent, Department has suggested that the Petitioner has failed to meet the terms of the Outstanding Florida Waters Rule's requirements related to ambient water quality and the degradation of that measurement. From the facts presented, the Petitioner has satisfactorily addressed those water quality criteria, and this requirement standing alone would not cause the rejection of the permit request.
The action which the State of Florida, Department of Environmental Regulation has taken in this instance is consistent with the review process used for other projects and the denial of this project will not violate Rule 17-1.63, Florida Administrative Code.
After considering the facts found herein and the conclusions of law reached upon a review of those facts, it is
That the Petitioner, Hernstadt Broadcasting Corporation's request to be granted the necessary permits for the construction of a radio tower and access dock within the Biscayne Bay be Denied. 9/
DONE and ENTERED this 22nd day of May, 1981, in Tallahassee, Florida.
CHARLES C. ADAMS, 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 22nd day of May, 1981.
ENDNOTES
1/ At the time of hearing, the Petitioner had not taken action to gain the needed approval of the State of Florida, Department of Natural Resources to use, by lease, easement or other consent, that part of Biscayne Bay in which the transmitter tower and access dock would be located. See Chapter 253, Florida Statutes. Consequently, any permit granted to the Petitioner by Department of Environmental Regulation would necessarily be conditioned upon the receipt of permission from the Department of Natural Resources to use the aforementioned submerged land owned by the State of Florida and administered by the Department of Natural Resources.
2/ Water resources restoration and preservation.-
This section may be cited as the "Water Resources Restoration and Preservation Act."
The Department of Environmental Regulation shall establish a program to assist in the restoration and preservation of bodies of water and to enhance existing public access when deemed necessary for the enhancement of the restoration effort. This program shall be funded from the General Revenue Fund, from funds available from the Pollution Recovery Fund, and from available federal moneys.
The department shall adopt, by rule, criteria for the allocation of restoration and preservation funds. Such criteria shall include, but not be limited to, the following:
The degree of water quality degradation;
The degree to which sources of pollution which have contributed to the need for restoration or preservation have been abated;
The public uses which can be made of the subject waters;
The ecological value of the subject waters in relation to other waters proposed for restoration and preservation;
The implementation by local government of regulatory or management programs to prevent further and subsequent degradation of the subject waters; and
The commitment of local government resources to assist in the proposed restoration and preservation.
There is hereby created the Water Resources Restoration and Preservation Trust Fund for the deposit and disbursement of funds available from the Pollution Recovery Fund and from the moneys in accordance with the provisions of this act.
The provisions of this act are for the benefit of the public and shall be liberally construed to accomplish the purpose set forth in this act.
3/ Uniformity in Approval and Denial of Applications for Department permits and Certifications. To the extent possible and consistent with the public interest, the Department approves and denies applications for permits and certifications on a uniform and consistent basis. Final Department actions on applications for permits and certifications shall be consistent with prior Department actions, unless deviation therefrom is explained by the Department in writing or the hearing officer who submits a recommended order to the Department for final agency action in accordance with Section 120.57, Florida Statutes.
4/ (c) There shall be no drilling of walls, excavation for shell or minerals, or erection of structures other than docks within the preserve unless such activity is associated with activity authorized by this section.
5/ RIPARIAN RIGHTS.-Neither the establishment nor the management of the Biscayne Bay Aquatic Preserve shall operate to infringe upon the riparian rights of upland property owners adjacent to or within the preserve. Reasonable improvement for ingress and agrees, mosquito control, shore protection, public utility expansion, and similar purposes may be permitted by the board of trustees or Department of Environmental Regulation, subject to the provisions of any other applicable laws under the jurisdiction of other agencies.
6/ State lands; state agency authorization for use prohibited without consent of agency in which title vested.-
No department, including any division, bureau, section, or other subdivision thereof, or any other agency of the state possessing regulatory powers involving the issuance of permits shall issue any permit, license, or other evidence of authority involving the use of sovereignty or other lands of the state, title to which is vested in the Board of Trustees of the Internal Improvement Trust Fund or the Department of Natural Resources under chapter 253, until the applicant for such permit, license, or other evidence of permission shall have received from the Board of Trustees of Internal Improvement Trust Fund the required lease, license, easement, or other form of consent authorizing the proposed use and exhibited it to such agency or department or subdivision thereof having regulatory power to permit such use.
This act shall not apply to any permit, license, or other form of consent to take the regulated action which was issued and outstanding on June 23, 1976.
7/ Permits; general issuance; denial; revocation; prohibition; penalty-
No stationary installation which will reasonably be expected to be a source of air or water pollution shall be operated, maintained, constructed, expanded, or modified without an appropriate and currently valid permit issued by the department, unless exempted by department rule. In no event shall a permit for a water pollution source be valid for more than 5 years. However, upon expiration, a new permit may be issued by the department in accordance with this act and the rules and regulations of the department.
The department shall adopt, amend, or repeal rules, regulations, and standards for the issuance, denial, and revocation of permits.
The department shall issue permits on such conditions as are necessary to effect the intent and purposes of this section.
The department shall issue permits to construct, operate, maintain, expand, or modify an installation which may reasonably be expected to be a source of pollution only when it determines that installation is provided or equipped with pollution control facilities that will abate or prevent pollution to the degree that will comply with the standards or rules promulgated by the department, except as provided in s. 403.088, and which will comply with the prohibitions in s. 124.41 of volume 40 of the Code of Federal Regulations.
The department may require an application fee of not more than $20 per application.
A permit issued pursuant to this section shall not become a vested right in the permittee. The department may revoke any permit issued by it if it finds that the permitholder:
Has submitted false or inaccurate information in his application;
Has violated law, department orders, rules or regulations, or permit conditions;
Has failed to submit operational reports or other information required by department rule or regulation; or
Has refused lawful inspection under s. 403.091.
Violation of this section shall be punishable as provided in this chapter.
8/ (1) Outstanding Florida Waters
No Department permit or water quality certification shall be issued for any stationary installation which significantly degrades, either alone or in combination with other stationary installations, or is within Outstanding Florida Waters, unless the applicant affirmatively demonstrates that:
2. the proposed activity or discharge is clearly in the public interest; .
. .
9/ The parties to this action, in the person of their counsel, have presented proposed findings of fact, conclusions of law and recommended disposition of this action. These proposals, conclusions and recommendations have been reviewed prior to the entry of this Recommended Order. To the extent that the proposals, conclusions and recommendations are consistent with this Recommended Order, they have been utilized. To the extent that the proposals, conclusions and recommendations are inconsistent with this Recommended Order, they are hereby rejected.
COPIES FURNISHED:
Robert A. Route, Esquire
217 South Adams Street Tallahassee, Florida 32301
Randall E. Denker, Esquire Alfred J. Malefatto, Esquire Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
John G. Fletcher, Esquire 7600 Red Road, Suite 222 South Miami, Florida 33143
| Issue Date | Proceedings |
|---|---|
| Jul. 08, 1981 | Final Order filed. |
| May 22, 1981 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 06, 1981 | Agency Final Order | |
| May 22, 1981 | Recommended Order | It was not shown to be within the public interest to place a radio broadcast tower in an outstanding water body. |
BISCAYNE BAY DEVELOPMENT CORPORATION vs. DEPARTMENT OF NATURAL RESOURCES, 80-001702 (1980)
QUAYSIDE ASSOCIATES, LTD. vs. DEPARTMENT OF ENVIRONMENTAL REGULATION, 80-001702 (1980)
ARNOLD OPER vs. DEPARTMENT OF NATURAL RESOURCES, 80-001702 (1980)
LUTHER J. RUSSELL vs. DEPARTMENT OF NATURAL RESOURCES, 80-001702 (1980)
COSTA DEVELOPMENT CORPORATION vs. DEPARTMENT OF NATURAL RESOURCES, 80-001702 (1980)
