STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JERROLD D. SCHATZ, FRIENDS OF THE ) BARRIER ISLAND OF THE HAMMOCK, ) INC., and FLORIDA WILDLIFE )

FEDERATION, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 83-1797

)

ITT COMMUNITY DEVELOPMENT ) CORPORATION, ADMIRAL CORPORATION, ) AND STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, at Bunnell, Florida, on September 20-21, 1983, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioners: Tim Keyser, Esquire

Post Office Box 92 Interlachen, Florida 32048

Brad Thomas, Esquire

1500 Northwest 16th Avenue Gainesville, Florida

For Respondent: Wade L. Hopping and

ITT Carolyn S. Raepple, Esquires

420 Lewis State Bank Building Tallahassee, Florida 32314

For Respondent: J. Alan Cox, Esquire

DER Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

Lisa Jones Burley, Certified Legal Intern ISSUE PRESENTED

Whether Respondent ITT Community Development Corporation's and Admiral Corporation's application for dredge and fill permit and water quality certification to construct a bridge over the Intracoastal Waterway in Flagler

County should be approved, pursuant to Chapters 253 and 403, Florida Statutes, and PL 92-500.

This proceeding arose upon Petitioners' request for an administrative hearing on the Department of Environmental Regulation's notice of intent to issue a permit to ITT Community Development Corporation and Admiral Corporation under Chapters 253 and 403, Florida Statutes, and Public Law 92-500, incident to the proposed construction of a high-level concrete highway bridge over the Intracoastal Waterway at Palm Coast, Florida. The Petition for Hearing disputed the Department's determination that the proposed project would not result in violations of water quality or interfere with the conservation of fish, marine and wildlife or other natural resources to such an extent as to be contrary to the public interests, and alleged that construction of the bridge would promote urbanization and overdevelopment of a productive sensitive barrier island that is scarce habitat for endangered animal and plant species.

At the hearing, Petitioners presented the testimony of five witnesses and submitted five exhibits in evidence. Respondent ITT Community Development Corporation and Admiral Corporation presented the testimony of four witnesses and submitted thirteen exhibits in evidence. Department of Environmental Regulation presented one witness, but submitted no exhibits in evidence. Seven public witnesses testified at the hearing and, during the course of their testimony, Hearing Officer's Exhibit 1 was received in evidence.

At the conclusion of the hearing, Petitioners' Exhibits 1 and 2 were rejected as irrelevant to the issues determined during the course of the hearing. Ruling on the admissibility of Petitioners Exhibit 5 was reserved, but it is now received as a supplemental hearsay document. Ruling was also reserved on Respondent's Motion to strike certain testimony of Petitioner Schatz regarding reports he received. The motion is now denied. Additionally, motions to strike were granted as to the testimony of Petitioners' witness Robert S. Wilkerson, and that portion of the testimony of Respondent's witnesses Fred A. Greene and Stephen Smith, relative to public interest factors other than those set forth in Section 253.123(3)(d), Florida Statutes, as being irrelevant to the issues in this proceeding. Similarly, the testimony of all public witnesses dealt with public interest factors which were outside the scope of the proceeding, and, therefore, findings are not made with respect to such testimony.

Proposed Recommended Orders filed by the parties have been fully considered and those portions thereof not adopted herein are considered to be either irrelevant, unnecessary, or unsupported by law or fact, and are specifically rejected.

The parties entered into a Prehearing Stipulation and three supplements thereto, which were accepted by the Hearing Officer. The Stipulations narrowed the disputed issues of fact and law in the proceeding, and also included agreed factual matters as incorporated hereinafter.

The remaining disputed issues of fact were agreed to be as follows:

Whether or not the proposed activities will interfere with the conservation of the Florida panther and the Florida black bear to such an extent as to be contrary to the public interest.

The remaining disputed issues of law were agreed to be as follows:

1. Whether the bridge construction will promote urbanization and overdevelopment of a sensitive barrier island. However, by Order of August 29, 1983, the Hearing Officer ruled that any future development activities are not a relevant issue in this proceeding. The parties stipulated that Petitioners could preserve their objection for purposes of appeal, and did so with a proffer during the hearing.

   
   

2. Whether the proposed activity constitutes filling pursuant to Section 253.124, Florida Statutes. During the course of the hearing, the Hearing Officer ruled that Section 253.124 is not In issue in this proceeding.

   
   

3. Whether the following legal authorities are applicable:

1. Article IV, Section 9, Florida Constitution

2. Section 372.072(h), Florida Statutes, and Chapter 39, Florida Administrative Code

3. The Governor's Executive Order Number 81-105

4. The applicability and supremacy of 16 USC Sections 1531 at seq. and 50 CFR Part 81 It is determined that none of the above-cited legal authorities

are applicable in this proceeding, except as noted hereinafter.

Upon request of the applicant, official recognition was taken of Chapter 17-1, 17-3, and 17-4, Florida Administrative Code, and Resolution Number 83-13, adopted by the Board of County Commissioners of Flagler County on August 18, 1983.

FINDINGS OF FACT

1. By application dated March 3, 1983, Respondent ITT Community Development Corporation (ITT) requested a permit from Respondent Department of Environmental Regulation (DER) to dredge 815 cubic yards of material from the Intracoastal Waterway In Flagler County, Florida, as part of the construction of a high-level concrete highway bridge over the intracoastal Waterway. The proposed bridge project will extend Palm Coast Parkway from the end of existing pavement to State Road A1A east of the Intracoastal Waterway, and thus complete the Interstate 95 connector link with coastal State Road A1A. At the present tine, there are two drawbridges across the Intracoastal Waterway some ten miles south at Flagler Beach. and approximately 15 miles north at Crescent Beach. Existing high bridges across the Intracoastal Waterway are further north and south of the proposed bridge project. (Testimony of Smith, ITT Exhibits 1, 9- 12)

   
   

2. The proposed bridge is a fixed concrete bridge approximately 2,598 feet long and 52 feet, 7 inches in width. The bridge will have a minimum vertical clearance of 65 feet above mean high water and 66.4 feet above mean low water, with a horizontal clearance of 90 feet between fenders. It will involve a cast- in-place concrete deck set upon prestressed concrete columns. The bridge will be supported by sets of concrete beams and placed on top of pilings, which will be driven into the surface to a depth of approximately 80 feet. The center two support piers, which are the subject of the requested permit, will be set upon concrete seals constructed inside of cofferdams, which will be located within the right-of-way of the Intracoastal Waterway. It is the construction of these two piers within the limits of the cofferdam that involves the removal of material which is considered dredging pursuant to DER rules. (Stipulation)

3. The cofferdams will be made of steel and will be driven into place to encompass the pier foundations, with the 815 cubic yards of material excavated from inside the cofferdams being placed on a barge and transported to the adjacent uplands as part of the bridge approach construction. During construction of each support pier, a turbidity curtain will be placed around the cofferdams and the barge. Bridge deck drains will be omitted over the Intracoastal Waterway, and first flush storm water runoff will be retained in a stormwater management system which meets the requirements of Chapter 17-25, Florida Administrative Code. Piles used in the construction of the two fenders shall be made of concrete rather than treated timber. Treated timber may be used for the horizontal wales, the catwalks, and other components of the fender system which do not extend below M.S.L. Reasonable assurance has been provided by ITT that the release of preserving chemicals by the timber components of the fender system will not adversely affect the waters of the Intracoastal Waterway in violation of Chapter 17-3, Florida Administrative Code. Turbidity controls will be used during the the construction of the two piers in the Intracoastal Waterway if the level of turbidity produced exceeds 29 NTUs. (Stipulation, Greene)

   
   

4. The bridge will connect two parcels of land under the ownership of ITT, and will facilitate access between Palm Coast Parkway and the State Road A1A. (Stipulation, ITT Exhibits 1, 9-12)

   
   

5. After receiving the ITT application, DER solicited comments from adjoining landowners, the Flagler County Board of Commissioners, and the Florida Game and Fresh Water Fish Commission, but none were received. By letter dated April 13, 1983, the Department of Natural Resources gave its authority for the project under Section 253.77, Florida Statutes. An onsite inspection of the proposed site was made by DER in June 1982 and March 1983, who found that the project site was devoid of literal vegetation and that minimal impact could be expected from the project provided that turbidity is contained during construction. They further determined that the bridge pilings would not eliminate valuable habitat or alter the natural flow of the Intracoastal Waterway, a Class III body of water. Further, in view of the fact that the dredging activities would be isolated by the cofferdams, no turbidity problems re expected. On May 18, 1983, the DER District Manager issued a notice of its intent to issue the requested permit for the reason that reasonable assurance had been provided that the short-term and long-term effects of the proposed activity would not result in violation of water quality criteria under Chapter 17-3, Florida Administrative Cede, and that the proposed activity would 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 interests, or create an navigational hazard or impediment, or alter or impede the natural flow of navigable waters so as to be contrary to the public interests. The intent to issue provided that the permit would be subject to the condition that turbidity controls would be used during construction if the level of turbidity produced exceeds 50 JTU above background. (Testimony of Tyler, ITT Exhibits 2-5, 7)

   
   

6. By Resolution No. 83-13, dated August 18, 1983, the Flagler County Board of County Commissioners expressed its support of the concept of the proposed project as long as the cost of construction is funded through ITT funds or bridge tolls. (ITT Exhibit 13)

7. In their prehearing and posthearing stipulations, the parties agreed to the following:

   
   

   1. That reasonable assurance has been provided by ITT that the short-and long-term effects of the bridge construction will not adversely affect the surficial aquifer to such an extent that it will cause harm to its use by Petitioners as a potable water supply.

   2. That the construction and operation of the proposed bridge will not interfere with the conservation of the Florida Scrub Jay, the Gopher Tortoise, or the Indigo Snake.

   3. Reasonable assurance has been provided

      by ITT that the release of preserving chemicals by the timber components of the fender system will not adversely affect the waters of the Intracoastal Waterway in violation of Chapter 17-3, Florida Administrative Code.

   4. Reasonable assurance has been provided by ITT that the short-term effects of turbidity will not adversely affect the waters of the Intracoastal Waterway in violation of Chapter 17-3, Florida Administrative Code.

   5. The proposed bridge will not create a navigational hazard or a serious impediment

      to navigation, or substantially alter or impede the natural flow of navigable waters so as to be contrary to the public interests, and the proposed bridge will not result in the destruc- tion 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 establish[ed] marine soil(s] suitable for producing plant growth

      of the 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.

   6. If the permit is issued, it shall be issued with the following conditions:

      1. Turbidity controls will be used during construction of the two piers in the Intracoastal Waterway if the level of turbidity produced exceeds 29 NTUs above background.

      2. Piles used in the construction of the two fenders shall be made of concrete rather than treated timber. Treated timber may be used for the horizontal wales, the catwalks, and other components of the fender system which do

         not extend below M.S.L.

         
         

8. In view of the above stipulations by the parties, the only remaining disputed issues of material fact are whether the proposed project will interfere with the conservation of the Florida panther and Florida black bear to such an extent as to be contrary to the public interests.

9. The black bear is considered to be a "threatened" species of wildlife by the State of Florida. A wildlife survey of some 2,000 acres of land surrounding and including the project area during the period 1979-82 by an expert in the field of wildlife ecology revealed traces indicating the presence of the black bear on two occasions in a location east of the proposed project area. On those occasions, bear tracks were found east of State Highway A1A in a hammock area north of the bridge corridor in 1979. However, the signs were insufficient to indicate that there was a resident bear population in the area. Signs of the black bear are fairly common on the west side of the Intracoastal Waterway in swampy wilderness areas, such as Long's Creek area and Graham's Swamp. It is possible that, on occasion, a black bear may wander into or cross the bridge area; however, construction and operation of the bridge should have little or no adverse impact on any black bear population which is located either several miles south or north of the proposed bridge area. (Testimony of Brown)

   
   

10. The Florida panther is classified as an "endangered" species by the State of Florida. The four-year survey of wildlife undertaken by ITT during the period 1979-82 failed to disclose any traces of the panther in the area surrounding the proposed project site. There are only approximately 20 to 30 Florida panthers in the state, and all are located to the south and west of Lake Okeechobee in the Everglades. The Florida panther requires a vast area of undisturbed habitat. Approximately 400 square miles are necessary for males and some 50 to 100 square miles for a female. They avoid populate areas. Several state personnel saw a tan catlike animal near the entrance to Washington Oaks State Gardens which is located a number of miles north of the proposed bridge site, on May 13, 1983. They reported to the Florida Game and Fresh Water Fish Commission that the animal was a Florida panther, and plaster casts of the animal's tracks were submitted to that agency for verification. However, the casts were insufficient upon which to base an identification of the animal as a Florida panther, and the park personnel admittedly lacked sufficient qualifications to determine if the animal was, in fact, a Florida panther.

    There have been other purported sightings of panthers in the general area during past and recent years by Petitioner Gerald D. Schatz and others who reported such sightings to him for investigation. However, it has never been confirmed that the said sightings were of the Florida panther.

    
    

11. Although a suitable habitat for the panther is the Graham Swamp, that area is not large enough to be sustain the Florida panther, and It is unlikely that any of that species are present in the area of the proposed bridge. It is accordingly found that construction of the bridge would have no impact on the Florida panther. (Testimony of Brown, Wood, Ganson, Nichols, Schatz; Petitioner's Exhibits 3-5)

    
    

    CONCLUSIONS OF LAW

    
    

12. The applicant seeks a permit to perform dredging activities in connection with the construction of its proposed bridge across the Intracoastal Waterway pursuant to the pertinent provisions of Chapters 253 and 403, Florida Statutes.

    
    

13. Section 403.087, Florida Statutes, precludes the construction of a stationary installation which will reasonably be expected to be a source of water pollution without an appropriate permit issued by DER. Section 403.008 similarly requires a permit from that Department for the discharge of waste which, by itself or in combination with the waste of other sources, reduces the quality of the receiving waters below the classification established for them.

    These statutory provisions are implemented by DER Rule 17-4.25, Florida Administrative Code. That rule provides that an applicant for a permit to conduct dredging or filling activities in specified waters of the state must 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 of Chapter 17-3, Florida Administrative Cede. The parties have stipulated that ITT's proposed project will net result in any such violations of Chapter 17-3 for the work to be performed In the Intracoastal Waterway which is designated as Class III Waters.

    
    

14. Section 253.123, Florida Statutes, provides pertinently as follows:

    
    

    253.123 Restrictions on filling land and dredging.--

    1. The removal of sand, rock, or earth from the navigable waters of the state and the submerged bottoms thereof by dredging, pumping, digging,

    or any other means shall not be permitted except in the following instances:

    (b) For other purposes when, but only when, the department has determined, after consideration of a biological survey and an ecological study and a hydrographic survey, if such hydrographic survey

    is required by the department, made by or under the supervision of the department of the area from which such sand, rock or earth is proposed to be removed, that such surveys and studies show that such removal will not interfere with the conservation of fish, marine and other 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, In- cluding, but not limited to, destruction of natural marine habitats, grassflats suitable as nursery or feeding grounds for marine life, and established marine soil suitable for producing plant growth of

    the 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.

    
    

    It is conceded by the parties that the removal of material from the Intracoastal Waterway incident to the construction of the proposed bridge 15 within the permitting jurisdiction of the Department under Section 253.123, Florida Statutes. Section 253.123 is implemented by DER Rule 17-4.29, Florida Administrative Code, which provides the specific criteria for the issuance or denial of dredging projects thereunder in subparagraph (6) of the rule. The parties have stipulated that the applicant has shown that it will meet all of the requisite criteria, except as to the question of whether the proposed activity will interfere with the conservation of the Florida panther and the Florida black bear to such an extent as to be contrary to the public interest.

    The evidence adduced at the hearing establishes that there will be an insignificant effect on the Florida black bear population in the vicinity of the proposed bridge, and no impact upon the Florida panther. Accordingly, it is concluded that the applicant has met its burden of establishing that its proposed activity will not interfere with the conservation of those species to such an extent as to be contrary to the public interest.

15. Evidence concerning other public interest factors, as contemplated under Section 253.124, Florida Statutes, was received during the course of the hearing, but it was determined at the conclusion of the hearing that such evidence was irrelevant in that that statutory provision is not properly in issue in this proceeding. Section 253.124 applies only to filling land to construct islands or add to or extend existing lands or islands bordering on or in the navigable waters of the state. The project under consideration will not produce such a result. Accordingly, Section 253.124 is inapplicable.

    
    

16. The parties stipulated that the applicability of certain federal and state law relative to endangered and threatened species, and the Florida constitutional provision establishing the Game and Fresh Water Fish Commission constituted disputed issues of law in this proceeding. 1/ It is determined that none of the legal authorities urged by Petitioners are applicable herein, except to the extent that Chapter 39, Florida Administrative Code, identifies the Florida panther and Florida black bear as endangered and threatened species respectively.

    
    

17. In view of the foregoing, it is concluded that the requested permit should be issued to the applicant subject to standard conditions and the following two special conditions:

    
    

    1. Turbidity controls will be used during construction of the two piers in the Intracoastal Waterway if the level of turbidity exceeds 29 NTUs above background.

    2. Piles used in the construction of the two fenders shall be made of concrete rather than treated timber. Treated timber may be used for the horizontal wales, the catwalks, and other components of the fender system which do not extend below M.S.L.

RECOMMENDATION

That the Department of Environmental Regulation issue the requested permit pursuant to Chapter 253 and 403, Florida Statutes, and Public Law 92-580, subject to standard conditions, and the special conditions set forth in paragraph 6 above of the Conclusions of Law herein.

DONE and ENTERED this 30th day of November, 1983, in Tallahassee, Florida.

THOMAS C. OLDHAM

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 30th day of November, 1983.

ENDNOTE

1/ 16 USC Sections 1531 et seq and 50 CFR, Part 81; Section 373.072(b), Florida Statutes, and Chapter 39, Florida Administrative Code; Article IV, Section 9, Florida Constitution.

COPIES FURNISHED:

Victoria Tschinkel, Secretary Department of Environmental

Regulation

2600 Blair Stone Read Tallahassee, Florida 32301

Tim Keyser, Esquire Post Office Box 92

Interlachen, Florida 32048

Brad Thomas, Esquire 1500 NW 16th Avenue Gainesville, Florida

Wade Hopping and

Carolyn S. Raepple, Esquire

420 Lewis State Bank Building Tallahassee, Florida 32314

J. Alan Cox, Esquire

Lisa Jones Burley, Esquire

Department of Environmental Regulation 2690 Blair Stone Road

Tallahassee, Florida 32301

Docket for Case No: 83-001797

Orders for Case No: 83-001797