STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA WILDLIFE FEDERATION and ) PROPERTY OWNERS' ASSOCIATION OF ) SINGER ISLAND, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 82-1602
) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION; and ) CASETTA, LTD., )
)
Respondent. )
) SINGER ISLAND CIVIC ASSOCIATION, ) INC., )
)
Petitioner, )
)
vs. ) CASE NO. 82-1603
) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION; and ) CASETTA, LTD., )
)
Respondent. )
) HARBOR POINT CONDOMINIUM )
ASSOCIATION, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 82-2315
) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )
)
Respondent, )
and )
)
CASETTA, LTD., )
)
Intervenor. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal administrative hearing was conducted in the above matters on October 26, 27, and 28, 1982, in Riviera Beach, Florida.
APPEARANCES
For Petitioners Leon St. John and Singer Island Terrell Arline
and Harbor: West Palm Beach, Florida
For Respondent Ronald C. LaFace and Casetta, Ltd.: Michael J. Cherniga
Tallahassee, Florida
For Respondent Department of
Environmental Alfred Malefatto Regulation: Tallahassee, Florida
During December, 1982, Casetta, Ltd. ("Casetta" hereafter), filed an application with the Department of Environmental Regulation ("Department" hereafter) for a permit to fill a portion of a pond located on Singer Island, Palm Beach County, Florida, and to connect the pond through a culvert system to Lake Worth. On or about May 18, 1982, the Department issued a Notice of Intent to issue the permit. The Florida Wildlife Federation, the Property Owners' Association of Singer Island, and the Singer Island Civic Association Submitted requests for formal proceedings with respect to Casetta's application. The Department forwarded the requests for hearing to the office of the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a hearing. The request for hearing submitted by the Florida Wildlife Federation and the Property Owners' Association of Singer Island was given Case No. 82-1602 before the Division of Administrative Hearings. The request filed by the Singer Island Civic Association was given Case No. 82-1603. The two matters were consolidated with each other and with another formal proceeding then pending with respect to a different permit application that had been filed by Casetta relating to the same pond. That matter, which had been given Case No. 81-1082 before the Division of Administrative Hearings, was dismissed without prejudice by Order entered August 6, 1982. The final hearing was scheduled to be conducted as set out above by notice issued August 6.
During the pendency of Cases No. 82-1602 and 02-1603 before the Division of Administrative Hearings, the Harbor Point Condominium Association, Inc. ("Harbor Point" hereafter), filed an application with the Department seeking a permit to construct culverts that would connect the same pond involved in the Casetta applications with a pond owned by Harbor Point on adjoining property. On or about August 2, 1982, the Department gave notice of its intent to deny the Harbor Point application. Harbor Point filed a Petition for Formal Administrative Proceeding. The matter was forwarded to the office of the Division of Administrative Hearings and given Case No. 82-2315. A Motion to Consolidate proceedings involving the Casetta application and the Harbor Point application, and a motion by Casetta to intervene in the Harbor Point proceeding were granted.
Harbor Point called the following witnesses at the public hearing: Pamela
Sperling, a hydrographic engineer employed by the Department; Dan Garlick, an environmental specialist employed by the Department; Larry O'Donnell, a dredge and fill supervisor employed in the Department's West Palm Beach office; Gary Nickelson, an environmental specialist employed with the Department; James D. Carlton, a registered engineer and land surveyor; Ben Martin, a private consulting chemist; James Barry, the supervising biologist of the Palm Beach County Health Department; David Tackney, a registered professional engineer in
private practice; Kevin L. Erwin, a private consulting ecologist; Bruce Birnhak, a fisheries biologist employed in the Vero Beach office of the Federal Department of Interior, Fish and Wildlife Service; and Michael Slayton, a supervisory biologist employed in the Miami office of the United States Corps of Engineers.
Casetta called the following witnesses: Howard L. Searcy, a private consulting engineer; Robert Snyder, a private consulting engineer; Jon C. Staiger, a private consultant in the areas of marine biology and ecology; and Larry Hawkins, a private consultant in the areas of geology, oceanography, and water quality.
The Department presented testimony through the examination of witnesses who were called by the other parties. A portion of the hearing was devoted to testimony from members of the general public. The following persons testified during this session: Jack R. McDonald, a resident of Harbor Point; John C. Jones, the Executive Director of the Florida Wildlife Federation; Maxine Wyatt, an officer in the Property Owners' Association of Singer Island, Inc.; Tommy Vasello, a resident of Singer Island; Roy Hamill, Harbor Point's president; Edward Cambere, a Singer Island resident; Dasher Riley, a resident of Singer Island; Griffin Lavis, the Chairman of the West Side Community Group in Vero Beach, Florida; David Carver, a resident of Singer Island; Charles Narin, a Singer Island resident; Raymond Goldstein, a Singer Island resident; Alec Jacobson, a Singer Island resident; Bob Nelson, the President of Florida Free Beaches; Kenneth MacPherson, a representative of the Condominium Owners' Association of Singer Island; Robert Merhige, a resident of Singer Island; George Makovich, a resident of Singer Island; and Robert Piecks, a resident of Singer Island.
Hearing Officer's Exhibit 1; Casetta Exhibits 2 through 19, 21, 22, 23, 25,
26, and 28 through 33; Harbor Point Exhibits 1 through 22, 24, 25, and 26; DER Exhibit 1; and Public Exhibits 1 through 4 were offered into evidence and received. Casetta Exhibits 1, 20, 24, and 27; and Harbor Point Exhibit 23 were offered into evidence and rejected. The undersigned Hearing Officer, together with counsel for the parties, personally viewed the area of the proposed projects. Official recognition was taken of the provisions of the Department's rules set out at Chapter 17, Florida Administrative Code.
The Department has submitted a proposed recommended order which includes proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law which follow. They have been otherwise rejected as not Supported by the evidence, contrary to the better weight of the evidence, irrelevant to the issues, or legally erroneous.
ISSUE
The issues to be resolved in this proceeding are whether the Department should issue a permit to Casetta, and whether the Department should issue a permit to Harbor Point. The two application proceedings were consolidated for hearing purposes. In many respects, common factual and legal issues relate to the two proceedings. For that reason, in the interest of economy of time and space, a single recommended order is being issued with respect to the two proceedings.
FINDINGS OF FACT
History of Proceedings
In 1974, a prior owner of the property now owned by Casetta filed an application with the Department to entirely fill the pond which is the subject of this proceeding. A final order denying the application was entered by the Department on August 31, 1977. A second application to fill the entire pond was filed with the Department by Casetta's predecessor in 1979. During the pendency of that proceeding, Casetta purchased the property and by stipulation was permitted to be substituted as the Petitioner. The Department gave notice of its intent to deny the second application in February, 1981. Casetta challenged the Department's assertion that it had jurisdiction under the provisions of Chapter 253, Florida Statutes. The matter was forwarded to the Division of Administrative Hearings and given Case No. 81-1082. The matter before the Division has been closed, but it remains as a pending proceeding before the Department. It is being held in abeyance pending the resolution of Casetta's present application.
The application involved in this proceeding was submitted to the Department during December, 1981. The City of Riviera Beach, Florida, granted local approval for this application; and on May 18, 1982, the Department issued a Notice of Intent to issue the permit. The Department published a notice of its proposed action in the Commercial Record, a Palm Beach County newspaper. The Florida Wildlife Federation and the Property Owners' Association of Singer Island together filed a request for formal hearing with the Department. The Singer Island Civic Association filed a separate request. Counsel for the Wildlife Federation and the Property Owners' Association withdrew during the
course of the proceeding. It was indicated that these parties would voluntarily dismiss the requests for hearing, but no such papers were filed. No one appeared on behalf of the Florida Wildlife Federation or the Property Owners' Association of Singer Island during prehearing conferences that were conducted in this matter or at the final hearing. The Executive Director of the Florida Wildlife Federation testified as a public witness at the hearing and indicated that they were not participating in the proceeding as a party.
During the pendency of proceedings respecting the Casetta application before the Division of Administrative Hearings, Harbor Point filed an application with the Department to install a culvert which would connect the pond that is the subject of the Casetta application with a pond located on property owned by Harbor Point through a culvert system. Harbor Point sought to have its application considered by the Department as an alternative to the Casetta application. On or about August 2, 1982, the Department issued a Notice of Intent to deny the Harbor Point application Harbor Point thereafter petitioned for a formal hearing. On or about June 4, 1982, the United States Corps of Engineers issued a permit to Harbor Point to construct its proposed culvert system.
Description of Property in the Area of Proposed Projects.
Casetta is the owner of approximately five acres of land that lie between the Atlantic Ocean and Lake Worth on Singer Island in Palm Beach County, Florida. The property includes a rectangular pond that is approximately three acres in area. This pond will hereafter be referred to as the "Casetta pond."
Submerged lands in the Casetta pond were conveyed into private ownership by the Trustees of the Internal Improvement Trust Fund, State of Florida, in 1924.
Harbor Point owns land adjacent to Casetta's property to the north. Harbor Point's property includes a pond which is configured in the approximate shape of an hourglass and is approximately one acre in area. A condominium apartment building has been constructed on Harbor Point's property. Harbor Point members own residential units in this facility.
The area presently owned by Casetta and Harbor Point was, in its natural condition, a part of the littoral zone, a shallow, submerged area, on the eastern edge of the lake. Lake Worth is an estuarine water body located between the mainland and Singer Island. The littoral zone of such a lake is of fundamental ecological importance. It serves as a habitat for a wide variety of wildlife and serves to maintain water quality in the lake through uptake of nutrients by vegetation that thrives in the area.
The natural condition of the area was markedly changed by the construction of State Road A-1-A. The highway separated the area, including what is now the Casetta and Harbor Point properties, to a large extent from the waters of Lake Worth. A culvert was constructed under the highway in the area of what is now the Harbor Point property. This culvert allowed tidal waters from Lake Worth to enter the area, and the area thus remained in a diminished fashion as a littoral zone of Lake Worth. Sometime between 1953 and 1964, landowners in the area constructed dikes which appear to have served as driveways along their northern and southern boundaries. Fill was placed on the Harbor Point property so that a pond was created in its present approximate configuration. The Harbor Point condominium facilities are presently in part set on the filled land. The Harbor Point pond remained connected with the waters of Lake Worth through the culvert system. The Harbor Point pond thus remains subject to tidal influences from Lake Worth. It is an estuarine system which serves as a part of the littoral zone of Lake Worth. The driveway to the condominium, however, completely Separated the Casetta pond from direct interaction with the waters of Lake Worthy. The Casetta pond is presently in an approximately rectangular configuration. Probably as a result of groundwater interaction, it is affected in a minimal manner by tidal influences in Lake Worth. The Casetta pond receives water from runoff and from groundwater interaction. It has become a freshwater body.
While the Casetta pond is no longer a direct part of the Lake Worth estuarine system, and while it is by no means in its natural condition, it remains a wetland ecosystem. The pond is surrounded by mangrove communities. There is considerable biologic activity. Many bird species roost in the mangroves and feed in the pond. The mangroves provide shelter for aquatic organisms which are a food source for the birds. The pond does not support a wide diversity of marine plants or animals. A single species of minnow, mosquito fish, exists in substantial quantities These serve as a food source for birds including ducks, herons, egrets, and kingfishers It appears that the Casetta pond has been used in the past as a borrow pit to obtain fill for adjoining properties trenches, which are as much as six feet in depth, have been dug along the northern, southern, and eastern perimeters and across the pond.
Because it is cut off from Lake Worth, and because of the ditches that have been cut through it, the Casetta pond is in a very deteriorated condition. While healthy mangroves surround the pond, they are, except to the west, extremely narrow populations due to the sharp banks that have been caused by dredging activity. The mangroves have no room to expand their population and
are stressed due to invasion of upland vegetation such as Brazilian pepper. Widgeon grass exists in the lake bottom. Algae, however, has become the dominant vegetation in the pond. From 80 to 90 percent of the pond's bottom is covered by a mat of algae that ranges up to five and one-half inches in thickness. The algae population is increasing rapidly. Widgeon grass populations are being choked off by the algae. Dissolved oxygen levels in the Casetta pond are consistently low, below standards set in the rules of the Department. The oxygen demand of the algae community has depleted dissolved oxygen levels. While the Casetta pond functions as a wetland community, its values are severely reduced, and it appears that water quality in the pond is likely to continue to deteriorate.
While by no means in a natural condition, the Harbor Point pond continues to function as a viable part of Lake Worth. This is a result of the pond being connected to the lake through the culvert system. The edges of the pond are populated by mangrove and cord grass communities. Marine species such as mullet are easily observable. Wading birds roost in surrounding vegetation and feed in the pond. The Harbor Point pond is basically a shallow, tidal water body. Water quality in the Harbor Point pond basically mirrors water quality in areas of Lake Worth to the west of Highway A-1-A. The Harbor Point pond has an eastern and western lobe connected by a narrower area, forming an approximate hourglass configuration. The eastern lobe is farthest from the connection to Lake Worth. Water quality in the eastern lobe is generally poorer than water quality in the western lobe and in Lake Worth. The deepest portion of the Harbor Point pond is in the eastern lobe. Wind action cannot serve to fully flush the waters of this area because of its relative isolation from the western lobe. Runoff from the Harbor Point condominium to the east of the pond and from a fire station parking lot to the west enters directly into the Harbor Point pond. It is filtered only by the action of grasses over which it flows. There is no ex-filtration drainage system. The culvert which connects the Harbor Point pond with Lake Worth runs from the western lobe of the pond under Highway A-1-A into Lake Worth. Lake Worth is a Class III water body under the Department's rules.
The Parties' Proposals
1. The Casetta Application
Casetta is proposing to construct a high-rise condominium on the eastern portion of its property. There is insufficient land on the property as it is presently configured to accommodate needed parking spaces. Casetta proposes to fill in 1.8 acres, or approximately 60 percent of the Casetta pond in order to construct parking facilities. Casetta has proposed to construct a culvert system that would connect the remaining portion of the pond with Lake Worth. The remaining portion of the pond would be regraded and configured. The northern and western boundaries would remain basically in their present configuration The remainder of the pond would be completely modified. A meandering shoreline would be created for an "L"- shaped pond. The bottom would be recontoured so that broader, shallow areas along the shoreline would be created. With the culvert system installed, the reconfigured pond would receive tidal waters from Lake Worth. The pond would effectively become, as the entire area once was, a portion of the littoral zone of Lake Worth. With the meandering shoreline and a gradually sloping bottom, the reconfigured pond would have as much area for littoral zone vegetation to establish itself as the present pond.
Casetta proposes to commence construction activities by filling in a portion of the pond and regrading the remainder. The pond would be drained so that the algae that presently exists in large quantities would die and be removed. Clear fill material would be used to grade the pond. An exfiltration system would be created so that runoff that would reach the pond from upland areas would be filtered before it could enter the pond, thus reducing the impact of pollutants from upland runoff. The proposed culvert system would be in three sections. There would be a 35-foot section leading from the pond and slanting gradually downward to a point approximately eight to nine feet under Highway A- 1-A. The second section would be 110 feet long, lying vertically under Highway A-1-A. The third section would be 95 feet long, gradually rising from the second section to the bottom of Lake Worth. The bottoms of the open ends of the culvert in the Casetta pond and in Lake Worth would be at the ordinary low-tide marks. The top would be below the ordinary high-tide marks. Thus, the culvert openings would be exposed at low tide and submerged at high tide. The portion of the culvert under A-1-A would be filled with water at all times. It is necessary to place the culvert at least eight feet under Highway A-1-A in order to avoid utility pipes and cables that lie under the highway. The portion of the pipe under A-1-A would be installed through a boring technique known as "jack and bore." This technique would obviate any need for the closing of traffic on Highway A-1-A. The portion of the culvert in the Casetta pond and in Lake Worth would be installed by digging trenches, laying the pipe, then filling the trenches. Two openings would be made in the pipe at either end of the deep sections. These would be "manhole-type openings that would allow for periodic maintenance. Installation of the portion of the pipe in Lake Worth would be accomplished by building a work platform into the lake from material that is dredged from the trench. Once the pipe is laid, the material from the work platform would be placed back on top of the culvert, and any extra material would be removed from the site. Turbidity screens would be used to surround the project to reduce the short-term impacts of turbidity caused by construction.
Once the pond is reconfigured and the culvert is installed, tidal flows would be introduced to the reconfigured pond on a gradual basis in order to observe any problems that might result. Shoreline grasses such as cord grass would be introduced in the shallow areas, and mangroves removed during filling operations would be replanted along the shoreline. This would serve to stabilize the shoreline and to provide the beneficial effects of littoral zone vegetation, including wildlife habitat and water quality benefits.
The reconfigured Casetta pond would be approximately 33,000 square feet in area. If the culvert system functions as proposed, the reconfigured pond would become a part of Lake Worth. There are environmental and ecological advantages and disadvantages to the proposal. The disadvantages are rather obvious. One and eight-tenths acres of wetland habitat would be eliminated. While the present Casetta pond is only a marginally valuable wetland, it is not without its beneficent effects as have been described above. Furthermore, during construction, the habitat values of the Casetta pond would be lost, and short-term deleterious water quality impacts would occur in Lake Worth.
There are trade-offs. The proposed filling, regrading, and connecting of the ponds to Lake Worth could have substantial positive impacts. The most apparent of these is that Lake Worth would regain 33,000 square feet of littoral zone. Construction activities have removed as much as 75 percent of the Shoreline vegetation that once Surrounded Lake Worth. The littoral zone has been replaced with developments that in ecological terms have negative impacts. Reconnecting the ponds to Lake Worth would be a slight reversal of that trend. Habitat for marine species would be increased, and the "kidney effect" that
shoreline vegetation provides would be reestablished. Except during construction, Casetta's proposal would have no adverse water quality impacts upon surrounding waters. Adverse impacts during construction would be minimized by protective techniques that Casetta has proposed, including the use of turbidity screens. Long-term water quality impacts of the proposed project would be positive. Water in the present Casetta pond is of poor quality. The pond does not presently serve any water quality function for Lake Worth, since it is not connected to Lake Worth. Connecting the reconfigured pond to Lake Worth would allow waters from the lake to be purified through nutrient uptake by littoral zone vegetation. In habitat terms, the filling would reduce the total area of wetland habitat. The quality of the habitat would, however, be vastly improved. Rather than an unnatural, stagnant pond which provides habitat for only a few varieties of very common freshwater minnows, a marine habitat would be provided for all manner of creatures that survive in the littoral zone of estuarine water bodies. Bird habitats would not be reduced, since the shoreline of the lake would not be lessened. Thus, while the Casetta proposal would reduce the total size of wetland habitat, it would vastly improve it and would not have a detrimental effect that would be contrary to the public interest.
In order for the reconfigured Casetta pond to offer an improved wetland habitat and a positive water quality impact for Lake Worth, it is essential that the proposed culvert system functions so as to allow an unimpeded interchange of water between the reconfigured pond and Lake Worth. If the culvert system does not operate, the result of the proposed project would be merely to lessen wetland habitat. Rather than a three-acre unnatural wetland habitat, there would be a 1.2-acre unnatural wetland habitat. Such an adverse impact upon wildlife habitat would be clearly contrary to the public interest. Furthermore, limited exchange of water between a eutrophic pond and Lake Worth could have an adverse impact upon water quality in Lake Worth so as to result in violations of the Department's water quality standards along the border of Lake Worth.
The evidence does not establish that the proposed culvert system will properly function. Casetta had proposed a 36-inch culvert. Robert Snyder, a consulting engineer, was retained to determine the flushing characteristics of the culvert. Snyder calculated that maximum velocities associated with mean or average tides through the culvert system would be 1.89 cubic feet per second. Snyder calculated that this exchange rate would be sufficient to flush sediment and debris that would collect in the culvert. Thus, the culvert would be self- cleaning with only limited maintenance required to keep it open. In calculating the exchange rate, Snyder utilized the wrong formula. He overestimated the exchange rate by a factor of two. If the rate estimated by Snyder is reduced by a factor of two, it is apparent, that the exchange rate would not be sufficient to flush the culvert. Sediment and debris would collect in the pond, and rather regular maintenance would be required. Mechanical means can be utilized to clean a clogged culvert. A culvert of the length and configuration proposed by Casetta is difficult to clean through mechanical processes, however, and the processes themselves increase turbidity in the area. The evidence does not establish that regular maintenance would be sufficient to keep the culvert free of sediment and debris so that there would be a free exchange of water between Lake Worth and the reconfigured pond.
When engineer Snyder was made aware of his miscalculations, he proposed reducing the size of the culvert to 24 inches. He testified that this would adequately increase the exchange rate so that the culvert would be selfmaintaining. Snyder's testimony in this regard has not been deemed credible. Given the witness's use of an erroneous formula in calculating
exchange rates and another error that he admitted making in calculating scour potential, the witness cannot be considered competent to give expert testimony in these areas.
If the culvert system proposed by Casetta allowed for the free exchange of waters between Lake Worth and the reconfigured Casetta pond, the water quality and habitat impacts of the proposed Casetta project would be, on balance, positive. The evidence does not, however, establish that the culvert system would function. It appears likely that the culvert system as proposed would be frequently clogged with sediment and debris, thus preventing the exchange of waters between the reconfigured pond and Lake Worth. The result of the proposed project would therefore be a reduction of wildlife habitat with potentially adverse water quality impacts upon the waters of Lake Worth.
2. The Harbor Point Proposal
Harbor Point has proposed to install a culvert system that would connect the Casetta pond in its present configuration with the Harbor Point pond. Since the Harbor Point pond is connected through a culvert system with Lake Worth, the Harbor Point proposal would result in opening the Casetta pond to tidal influences from Lake Worth. Harbor Point has presented no evidence as to construction techniques that would be utilized and has provided no assurance that the construction itself would not result in water quality violations in the Harbor Point pond and in Lake Worth. Opening the Casetta pond in its present configuration to tidal influences would have the positive impact of allowing an exchange of water from the Casetta pond. Water quality in the Casetta pond would inevitably be improved. Given the configuration of the bottom of the Casetta pond, with its deep troughs, a complete exchange of waters would not occur, and water quality in the Casetta pond would be likely to remain poor, albeit improved. The Harbor Point proposal would have short-term and long-term negative impacts upon water quality in the Harbor Point pond and in Lake Worth. Simply opening the Harbor Point pond and Lake Worth to exchange of poor-quality water with the Casetta pond would have a negative impact. As water quality in the Casetta pond improves, this impact will be lessened, but will remain. Furthermore, the proposed culvert would result in poorer flushing of the waters from the eastern extremity of the Harbor Point pond. This would occur as a result of increased water velocities in the western extremity. Water quality in the eastern extremity of the Harbor Point pond is already stressed, and reducing the flushing characteristics of the pond would be likely to result in violations of the Department's water quality standards in the eastern portion of the Harbor Point pond.
While the Harbor Point proposal would have the ecologically positive impact of opening the Casetta pond to tidal flows, it would have the negative impacts of reducing water quality in the Harbor Point pond and potentially along the shoreline of Lake Worth. Water quality in the Casetta pond would thus be improved at the expense of water quality in the Harbor Point pond and in Lake Worth.
Riparian Rights
Harbor Point owns a narrow fringe of the northern border of the Casetta pond. The precise amount of the Casetta pond that is owned by Harbor Point cannot be determined from the evidence, but it is clear that Harbor Point owns some portion of the Casetta pond which may be at one point as much as six feet of the northern portion of the pond.
The Casetta pond offers minimal amenity to Harbor Point. The pond is unsuitable for boating, bathing, swimming, or any commercial enterprise. The pond is largely blocked from view by Harbor Point residents by abundant mangrove and upland vegetation. Reconfiguration of the pond as proposed by Casetta would not change the northern boundary of the pond, and it would remain largely blocked from view by Harbor Point residents. To the extent that the Casetta pond provides a view for Harbor Point residents, it is only minimally attractive given the configuration of the pond and given the fact that a high-rise condominium has been constructed on property to the south of the pond. There is no evidence in the record from which it could be concluded that the value of Harbor Point property would be in any way reduced as a result of the projects proposed by Casetta.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.57(1) and 120.60, Florida Statutes. The Department of Environmental Regulation has permitting authority over the construction activities proposed by Casetta and Harbor Point pursuant to Sections 253.123, 253.124, 403.087, and 403.088, Florida Statutes.
Conclusions of Law Respecting the Casetta Application
The Department's Rule 17-4.28(3), Florida Administrative Code, provides that an applicant for a dredge and/or fill permit must affirmatively provide reasonable assurance that the short-term and long-term effects of the proposed activity will not result in violations of the Department's water quality standards set out in Chapter 17-3, Florida Administrative Code. It appears that during construction, the proposed Casetta project would have adverse impacts upon water quality in Lake Worth as a result of turbidity that would result from installing the portion of the proposed culvert that would lie in Lake Worth. It does appear, however, that proper construction techniques, including the use of turbidity screens, can effectively reduce these negative impacts so that such water quality violations as might result would be short term and insignificant. The evidence establishes that in the long term, the water quality impact of the proposed Casetta project would be positive provided that the culvert system proposed by Casetta functions as proposed. If the culvert system does not function as proposed, however, water quality in the Casetta pond is likely to be poor, as it is at present. Frequent maintenance of the culvert and exchange of poor-quality water from the reconfigured Casetta pond with the waters of Lake Worth would be likely to result in violations of the Department's standards for dissolved oxygen and turbidity set out in Rule
17-3.121, Florida Administrative Code. Since the evidence does not establish that the culvert will function as proposed, Casetta has failed to provide reasonable assurance that the long-term effects of its proposed project will not result in violations of the Department's water quality standards.
The Department's Rule 17-4.29(6), Florida Administrative Code, provides that the Department shall not issue a permit unless the applicant affirmatively shows that the proposed activity will not interfere with conservation of fish, marine, and wildlife, or other natural resources to such an extent gas to be contrary to the public interest. The proposed Casetta project would eliminate 1.8 acres of viable fish and wildlife habitat. If the proposed culvert system were to function as proposed, a reduced, but vastly superior habitat would be provided. If the culvert System does not function as
proposed, the result of the proposal would be merely to reduce fish and wildlife habitat in an area where such habitat has already been profoundly reduced.
Since the evidence does not establish that the culvert will function as proposed, Casetta has failed to establish that its proposed activity will not interfere with the conservation of fish, wildlife, and natural resources to such an extent as to be contrary to the public interest.
The Casetta proposal has received the approval of the City of Riviera Beach and the consent of the Department of Natural Resources as required by she provisions of Sections 253.124(2) and 253.77, Florida Statutes.
Harbor Point has contended that the Casetta application should be denied because granting it would result in material injury and monetary damage to the adjoining Harbor Point land, and because riparian rights to use of the Casetta pond that Harbor Point possessed would be frustrated. These contentions are unsupported by the evidence. Section 253.124(2), Florida Statutes, provides that a permit under Chapter 253 should be issued only if it is found that the proposed project would not result in material injury or monetary damage to adjoining land. The proposed Casetta project, provided that the culvert system were to function as propose, would cause no material injury or monetary damage to adjoining land, nor would any significant right enjoyed by Harbor Point be frustrated.
Harbor Point has contended that the Casetta application should be denied because the Department has in prior cases taken contrary action with respect to similar applications. Harbor Point contends that since the Department has on two prior occasions denied applications for permits to fill the Casetta pond, it is obliged to deny this application. The contention is utterly unmeritorious. Prior applications to conduct filling activities in the Casetta pond were to entirely fill the pond. The instant Casetta application is to fill a portion of the pond and to reconnect the remainder to the waters of Lake Worth. The prior applications and the instant application are similar only in that they pertain to the same land area.
Conclusions of Law Respecting the Harbor Point Proposal
Harbor Point has not provided reasonable assurance that the short-term and long-term effects of its proposal will not result in violations of the Department's water quality standards. Harbor' Point has presented no evidence as to what construction techniques it would utilize and thus no reasonable assurance that turbidity resulting from construction would be contained. The evidence affirmatively establishes that the Harbor Point proposal would result in degrading the water quality in the Harbor Point pond and along the shoreline of Lake Worth. Violations of the Department's standards respecting dissolved oxygen as set out at Rule 17-3.121(14), Florida Administrative Code, would be likely if the Harbor Point proposal were permitted.
Harbor Point has contended that its permit application should be granted because the Department has not properly followed its rules in denying it. This contention is unsupported by the evidence and also mischaracterizes the nature of this proceeding. A formal administrative hearing is not a proceeding to review agency action that has already occurred, but rather is a de novo proceeding which will result in final agency action. Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778, 786 (1 DCA Fla. 1981).
Miscellaneous Conclusions of Law
The Florida Wildlife Federation and the Property Owners' Association of Singer Island, Inc., have not pursued their request for hearing, and their request should be dismissed.
The Casetta application should be denied.
The Harbor Point application should be denied.
RECOMMENDED ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby,
That the Department of Environmental Regulation enter a final order dismissing the request for hearing filed by the Florida Wildlife Federation and the Property Owners' Association of Singer Island, Inc.
That the Department of Environmental Regulation enter a final order denying the application for permit filed by Casetta, Ltd.
That the Department of Environmental Regulation enter a final order denying the application for permit filed by the Harbor Point Condominium Association, Inc.
RECOMMENDED this 7th day of December, 1982, in Tallahassee, Florida.
G. STEVEN PFEIFFER Assistant Director
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 7th day of December, 1982.
COPIES FURNISHED:
Alfred J. Malefatto, Esquire Assistant General Counsel Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
Ronald C. LaFace, Esquire Michael J. Cherniga, Esquire Roberts, Miller, Baggett,
LaFace, Richard & Wiser
101 East College Avenue Post Office Drawer 1838 Tallahassee, Florida 32302
Leon St. John, Esquire Terrell Arline, Esquire
Powell, Tennyson & St. John, P.A. 325-C Clematis Street
Comeau Building Arcade
West Palm Beach, Florida 33401
James R. Merola, Esquire Levy, Shapiro, Kneen &
Kingcade, P.A.
Post Office Box 2755
Palm Beach, Florida 33480
Randall E. Denker, Esquire Lehrman & Denker Law Offices
103 North Gadsden Street Tallahassee, Florida 32301
Mr. Johnny Jones President
Florida Wildlife Federation 4080 Haverhill Road
West Palm Beach, Florida 33406
Ms. Victoria Tschinkel Secretary
Department of Environmental Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
FLORIDA WILDLIFE FEDERATION and PROPERTY OWNERS' ASSOCIATION OF SINGER ISLAND, INC.,
Petitioner,
vs. CASE NO. 82-1602
STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION; and CASETTA, LTD.,
Respondent.
/ SINGER ISLAND CIVIC ASSOCIATION, INC.,
Petitioner,
vs. CASE NO. 82-1603
STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION; and CASETTA, LTD.,
Respondent.
/ HARBOR POINT CONDOMINIUM ASSOCIATION, INC.,
Petitioner,
vs. CASE NO. 82-2315
STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondent,
and
CASETTA, LTD.,
Intervenor.
/
FINAL ORDER
On December 7, 1982, the Division of Administrative Hearings' hearing officer in the above-styled case submitted his Findings of Fact, Conclusions of Law and Recommended Order to the Department of Environmental Regulation ("Department"). A copy of the recommended order is attached as Exhibit A. By order dated December 17, 1982, I extended the time to file exceptions to January 14, 1983. The parties to this Proceeding stipulated that the final order in this cause was to be entered within 30 days from the date on which exceptions were due. Both Petitioners, the Singer Island Civic Association, Inc. and Harbor Point Condominium Association, Inc. ("Petitioners") and Respondent, Casetta, Ltd. ("Casetta" filed exceptions within the prescribed time period.
Casetta also requested oral argument pursuant to Florida Administrative Code Rule 17-1.68(3). On January 21, 1983, Petitioners filed their Response to Casetta, Ltd.`s Exceptions to Recommended Order.
RULINGS ON EXCEPTIONS OF CASETTA, LTD.
In reviewing the exceptions to findings of fact filed by the parties, I note that I may not reject the hearing officer's findings unless, after a review of the complete record, I determine that they were not based upon competent substantial evidence. McDonald v. Department of Banking and Finance, 346 So.2d
569 (Fla. 1st DCA 1977). It is the hearing officer's responsibility to weigh and evaluate the credibility of testimony and I may not substitute my opinion for his in such matters.
Casetta has filed two exceptions to the hearing officer's Recommended Order. The first appears to challenge both a finding of fact and conclusion of law. The hearing officer specifically found that the culvert system proposed by Casetta to connect its reconfigured pond to Lake Worth would not function properly because it would be frequently clogged with sediment and debris.
Casetta argues that competent Substantial evidence exists in the record to support a finding of fact that either a 36-inch culvert could be maintained by mechanical means or that a 24-inch culvert would maintain itself.
After a review of the record, I conclude that the hearing officer's findings of fact in this regard are based on competent substantial evidence. The fact that the record may also include some contrary evidence is not a basis for rejecting or modifying the findings of fact in the Recommended Order.
Section 120.57(1)(b)9., Fla. Stat.
Casetta also contends that the hearing officer erred as a matter of law by failing to recommend issuance of the permit with conditions to be imposed by the Department relating to the size of the culvert. In support of its position, Casetta cites Hopwood v. Department of Environmental Regulation, 402 So.2d 1296 (Fla. 1st DCA 1981). Casetta is incorrect, however, in asserting that Hopwood controls in the instant case.
In Hopwood, the hearing officer recommended that a permit be issued and the court held that the Department had abused its discretion in denying the permit. After considering the testimony and evidence in this case, including Casetta's proposed modification of the project, the hearing officer concluded as a matter of law that Casetta had not provided reasonable assurances that the project would comply with water quality standards. He also concluded that the project would be contrary to the public interest. Thus he recommended that the permit be denied.
Finally, Casetta takes exception to the finding of fact that the reconfigured pond would be 33,000 square feet in area. (See paragraph 12 of the Recommended Order). A review of the record and the Recommended Order indicates that this finding is in conflict with other findings of fact made by the hearing officer and is not supported by competent substantial evidence. I specifically reject the first sentence of paragraph 12 of the Recommended Order which states that the area of the reconfigured pond would be 33,000 square feet. Without that sentence, the hearing officer's order correctly reflects that 1.8 acres of the 3 acre existing pond would be filled under the Casetta proposal and that the reconfigured pond would have 33,000 square feet of littoral zone.
RULINGS ON EXCEPTIONS OF PETITIONERS
Petitioners have filed numerous exceptions addressing both findings of fact and conclusions of law. The exceptions to findings of fact will be dealt with first.
In each case where Petitioners have contested a finding of fact in the Recommended Order, competent substantial evidence was on record to support the hearing officer's findings. Specifically, the Petitioners would have me reweigh the evidence and decide in their favor. Section 120.57, Florida Statutes, does not allow me play such a role.
I also reject the Petitioners exceptions to conclusions of law as without merit. Specifically, Petitioners request that I overturn the hearing officer's conclusion that denial of previous permit applications relating to the Casetta pond does not require denial of this permit. I must agree with the hearing officer. If this instant application had been identical to previous applications, Petitioners would be correct. As the hearing officer found, however, the earlier applications sought approval to fill the entire pond.
Casetta's present proposal is Substantially different.
ORDER
Accordingly, having considered the Recommended Order, the record and pleadings in this case, it is hereby ORDERED that:
The hearing officer's findings of fact and conclusions of law are adopted in toto with the exception of his finding that the reconfigured Casetta pond would be 33,000 square feet in area.
The application for permit filed by Casetta, Ltd. is hereby denied.
The application for permit filed by the Harbor Point Condominium Association, Inc. is hereby denied.
The request for hearing filed by the Florida Wildlife Federation and the Property Owners' Association of Singer Island, Inc. is dismissed with prejudice
Casetta's request for oral argument is denied.
DONE AND ENTERED this 11th day of February, 1983, in Tallahassee, Florida.
VICTORIA J. TSCHINKEL
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Telephone: (904) 488-4805
FILING AN DACKNOWLEDGEMENT
Filed this date, pursuant to S120.52(9), Florida Statutes, with the designated Department Clerk, receipt of which is hereby acknowledged
2/14/80 clerk date
| Issue Date | Proceedings |
|---|---|
| Feb. 16, 1983 | Final Order filed. |
| Dec. 07, 1982 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 11, 1983 | Agency Final Order | |
| Dec. 07, 1982 | Recommended Order | Deny both parties requests for dredge/fill permits to connect to a lake. There were no reasonable assurances and not in public interest. |
