STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VINCENT M. DROST, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4067

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on July 11, 1988, in Key West, Florida.

APPEARANCES

For Petitioner: David Paul Horan, Esquire

608 Whitehead Street Key West, Florida 33040

For Respondent: Karen Bodeen, Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399-2400 PRELIMINARY STATEMENT

At issue in these proceedings is whether petitioner's application to construct vertical bulkheads and patios on top of existing caprock within the manmade canals of Cudjoe Gardens, Monroe County, Florida, should be approved.

At hearing, petitioner testified on his own behalf, and called Edward McCullough as a witness. Petitioner's exhibits 1- 16 were received into evidence, however, the probative value of exhibit 11, a document subject to the hearsay objection, was limited to supplementing or explaining competent proof. Respondent called as witnesses: Deborah Holle, accepted as an expert in wildlife management; Lucie Ann Blair, accepted as an expert in assessing biological impacts of dredge and fill projects; George P. Bartona, accepted as an expert in coastal engineering, hydrographics, water transport systems, and aerial photo interpretation; and Janet Llewellyn, accepted as an expert in assessing biological impacts of dredge and fill projects, oceanography, and the interpretation of the Department of Environmental Regulation's rules and statutes. Respondent's exhibits 1-7 were received into evidence.

The transcript of hearing was not ordered. The parties' proposed findings of fact have been addressed in appendix 1 to this recommended order.

FINDINGS OF FACT

1. On January 27, 1987, petitioner, Vincent M. Drost, filed an application with respondent, Department of Environmental Regulation (Department), for a permit/water quality certification to construct 24,155 linear feet of vertical bulkhead (90 degrees to horizontal) in manmade residential canals and along the Atlantic Ocean waterfront (Bow Channel and Cudjoe Bay), in Cudjoe Gardens Subdivision, Monroe County, Florida. The subject waters are Class III, Outstanding Florida Waters. 1/

   
   

2. On August 12, 1987, the Department issued its intent to deny petitioner's application with respect to the northernmost canal, which is abutted on the north and west by lots 1-18 and a portion of lot 19; the second most northern canal, which is abutted on the north and west, south of Second Avenue West, by lots 1-10; and along the southern and western shoreline of the Atlantic Ocean. The predicate for the Department's decision was Section 403.918(5)(b), Florida Statutes, which, pertinent to this case, prohibits the installation of vertical seawalls in lagoons unless within existing canals that are currently occupied in whole or in part by vertical seawalls, and the provisions of Section 403.918(2), Florida Statutes, which prohibits such activities in Outstanding Florida Waters unless the project is clearly in the public interest. The Department exempted, however, the remainder of petitioner's project predicated on the fact that such canals were currently occupied in part by vertical seawalls.

   
   

3. Petitioner filed a timely protest of the Department's intent to deny, and the matter was referred to the Division of Administrative Hearings to conduct a formal hearing. In light of the Department's exemption of a majority of the project, the parties have agreed that only that portion of petitioner's application which seeks a permit to bulkhead within the two northernmost canals and along the shoreline, approximately 8,000 linear feet, is at issue in this proceeding.

   
   

   Background

   
   

4. In 1957, petitioner began the acquisition of certain lands lying south of U.S. Highway 1, Cudjoe Key, Monroe County, Florida. Over the years, petitioner added to his holdings, which he subdivided and platted as Cudjoe Gardens Subdivision. Petitioner's exhibit 6, a copy of which is attached hereto as appendix 2, depicts the subdivision and canal system which petitioner ultimately created as it exists today.

   
   

5. In 1969, when petitioner prepared his proposed plans for dredging the canal system for the lands pertinent to this case, which lie west of Drost Drive in the subdivision, the state did not regulate dredge and fill work on privately owned uplands. Rather, a permit was only necessary to open the canal system to navigable waters.

   
   

6. In June 1969, petitioner applied to the Board of Trustees of the Internal Improvement Trust Fund (Trustees) for a permit to dredge a 60 foot wide and 3,000 foot long "canal" along the western and southern shore of the subject lands. Petitioner proposed to dredge to a depth of -15 feet mean low water (MLW) and represented that the area of the proposed "canal" was dry at low tide.

   
   

7. In September 1969, petitioner revised his application and withdrew his request to dredge the "canal" as originally proposed. As revised, petitioner proposed to dredge the "canal" predominately from uplands, for which no permit

   was required and requested a permit to dredge 9,722 cubic yards of material from a 75 foot wide, 175 foot long, and 20 foot deep area to create an access channel for the proposed shoreline "canal", and to fill approximately 0.48 acres of submerged land adjacent to the proposed "canal." In December 1969, petitioner's revised application was approved, and a permit issued to perform the requested work in navigable waters of the state.

   
   

8. Following receipt of the aforesaid permit, petitioner dredged the shoreline "canal" and the access channel, which currently abuts the southern and western shorelines of petitioner's property. While he avers that the shoreline "canal" was dredged entirely from uplands, the proof demonstrates that, at least in part, it was dredged from lands lying waterward of the natural ordinary or mean high water mark, and that the upper edges of its sides are normally below water.

   
   

9. From 1972 through mid-1976, petitioner was prohibited from further development of his canal system because of a rule change which required approval of the complete canal system rather than just the opening of the system to navigable water. During this period, the Department and petitioner reached agreement on an acceptable manner in which the canal system could be completed, and on July 19, 1976, petitioner received his permit.

   
   

10. The permit authorized petitioner to do the following:

    
    

    To dredge 75,500 cubic yards of upland material to create approximately & 2,450 feet of canals (approximately 600 feet to -12 feet mean low water, 450

    feet to -8 feet mean low water, and 400 feet of tapered culvert) in order to convert a dead-end canal system into a flow-through system; ... to remove existing plug; ... and spoil to be deposited on adjacent upland.

    and, contained the following pertinent conditions: GENERAL CONDITIONS:

    1. ...the work authorized by this

       Permit shall be valid for a three (3) year period that shall commence upon receipt by the Permittee of all government authorizations, state and federal....

       * * * PARTICULAR CONDITIONS:

       3. The culvert under Drost Drive will be 10 feet wide and at a depth essentially equal to that of the connected canals.

       * * *

       5. All culvert approaches shall be flared to smoothly connect to the canals.

       * * *

       7. The plug shall remain intact until all upland excavation has been completed and any siltation has subsided.

       
       

11. Petitioner completed the improvements contemplated by the Department's permit in December 1980. Pertinent to this case, the northern most canal was connected by a 10 foot wide culvert under Drost Drive to an existing canal on the east to provide a flow-through system.

    
    

12. Prior to removing the plug from the canal system, petitioner completed all upland excavation of the interior lots which consisted of scraping all mud or soft ground from the edge of the canal back a distance of approximately 20 feet. Additionally, petitioner scrapped the ground back from the edge of the shoreline a distance of 2-10 feet. Petitioner contemplated that the caprock at the edge of the canals and shoreline would be capped with a vertical seawall and a concrete patio constructed over the remaining area. 2/ While such occurred on lots abutting other canals and a few lots abutting the subject shoreline, no such construction has occurred in the two northernmost canals. 3/

    
    

13. In reaching the conclusion that no vertical seawall exists in the northernmost canal west of Drost Drive, I have not overlooked the fact that such canal is connected hydraulically to the canal east of Drost Drive, and that the canal east of Drost Drive does contain vertical seawalls. However, I find compelling the fact that the canal west of Drost Drive was constructed long after the canal east of Drost Drive and that they are connected by a culvert, which runs under Drost Drive, that is significantly narrower than the canals. Under the circumstances, while they may be part of the same canal system, they are separate canals. I have, likewise, not overlooked the fact that the southerly edge of lot 19 is bulkhead. I find, however, that the natural extent of the northernmost canal is abutted on the north and west by lots 1-18 and that portion of lot 19 that is rip-rapped, and that no vertical seawalls exist within that canal.

    
    

    Environmental Concerns

    
    

14. The proof demonstrates that along the southern and western shoreline there exists a littoral shelf that varies from 2-10 feet landward of the channel, and that is submerged at a depth of 2-6 inches at mean high water (MHW). Upon this shelf is a dense growth of sea grass and algae, followed landward by jurisdictional species such as mangroves, buttonwoods, and sea daisies. These species provide habitats for wildlife, water quality filtration functions, and food to lower organisms in the food chain.

    
    

15. The vertical seawalls proposed by petitioner along the southern and western shoreline would have a direct adverse impact on fish and wildlife, their habitats, and marine productivity. The destruction of the intertidal vegetation where the seawalls would be replaced and the total isolation of the remaining wetland vegetation located landward of the seawalls, would prevent those species from providing their traditional wetland values.

    
    

16. Within the two northern most canals, the exposed caprock abutting the canals is at or above mean sea level (MSL) in most cases. The Department offered credible proof, however, that a narrow littoral shelf exists along both canals which supports vegetation similar to that found along the southern and western shorelines. Additionally, the Department demonstrated that portions of the shoreline within the canals, where the caprock has been exposed, is

    saturated by natural tidal action at a frequency and duration adequate to support mangroves or other wetland species. In most case, however, this growth has been minimized by petitioner's mowing of the shelf area. Petitioner offered no competent proof to rebut the Department's showing that the project is subject to its jurisdiction.

    
    

17. While construction of the proposed seawalls would not violate existing water quality standards, impede navigation or affect flood control, it would adversely impact the fish and wildlife, their habitats, and marine productivity within the canals. The marine life within these canals are very productive, due in no small measure to the design characteristics adopted by petitioner. Currently, lobster, crab, mollasks, and a healthy array of organisms populate the interior canals in question.

    
    

18. There has been no credible showing that the existing waterways are experiencing harmful erosion.

    
    

19. Upon consideration of the various criteria established by Section 403.918(2), Florida Statutes, it is found that the applicant has failed to establish that the project is not contrary to the public interest, as well as the more stringent standard that the project is clearly in the public interest.

    
    

20. As part of his proposal, petitioner agreed that no mangroves would be disturbed, and that any capping would be done in a manner to assure their survival. The preservation of existing wetland areas alone is not, however, sufficient to compensate for the wetland areas to be lost.

    
    

    A lagoon

    
    

21. Respondent contends that the waters abutting the shoreline of petitioner's property are considered a lagoon. A "lagoon" is defined by Section 403.911(5), Florida Statutes, as:

    
    

    . . . a naturally existing coastal zone depression which is below mean high water and which has permanent or ephemeral communication with the sea, but is protected from the sea by some type of natural existing barrier.

    
    

22. In the opinion of Janet Llewellyn, accepted as an expert in oceanography, the waters abutting the petitioner's shoreline are within a lagoon that extends from the shoreline to a naturally existing barrier reef to the south. Petitioner offered no contrary proof. Under the circumstances, the opinion of Ms. Llewellyn is credited.

    
    

23. Although the interior canals are artificially created waterways that were totally dredged on privately owned upland, and the waters of those canals never overlapped natural surface waters of the state before the plug was pulled, the opening of the canals to the abutting waters extended the lagoonal waters into the canals.

    
    

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

25. The Department's jurisdiction is founded on Section 403.913, Florida Statutes, which provides:

    
    

    1. No person shall dredge or fill

       in, on, or over surface waters without a permit from the department, unless exempted by statute or department rule.

    2. The landward extent of waters shall be determined as provided in s.403.817, except that the department may exert its jurisdiction to the ordinary or mean high-water line of waters whenever the landward extent, if determined in accordance with Rule 17- 4.022, Florida Administrative Code, occurs waterward of the ordinary or mean high-water line.

    
    

    Since the proof demonstrated that the cut of the caprock which boarders the two northernmost canals and the western and southern shoreline, upon which petitioner proposes to pour a 22-30 inch vertical seawall, is below the mean high-water line, the Department has jurisdiction over the subject permit.

    
    

26. Pertinent to this case are provisions of Rule 17- 4.040(9)(f), Florida Administrative Code, which exempt from the permitting requirements the following:

    
    

    Construction of seawalls or rip-rap (including necessary backfilling), and private docks. . . in artificially created waterways where such construction will

    not violate existing water quality standards, impede navigation or affect flood control. An artificially created waterway will be defined as a body of water that has been totally dredged or excavated and which does not overlap natural surface waters of the state.

    For the purpose of this exemption, artificially created waterways shall also include existing residential canal systems. This exemption does not apply to the construction of vertical seawalls or lagoons unless the proposed construction is within an existing manmade canal where the shoreline is currently occupied in whole or in part by vertical seawalls.

27. Also pertinent to this case are the provisions of Section 403.918(5), Florida Statutes, which prohibit the construction of vertical seawalls in lagoons unless:

    
    

    3. The proposed construction is located within an existing manmade canal and the shoreline of such canal is currently occupied in whole or in part by vertical seawalls....

    
    

28. Petitioner's proposal to construct a vertical seawall on top of the existent caprock along the western and southern shorelines does not meet the exemption criteria established by Rule 17-4.040(9)(f), Florida Administrative Code. First, the waterway abutting that shoreline was not totally dredged or excavated from uplands. Second, its waters overlap the natural surface waters of the state. Finally, the waterway is not a "canal" as defined by Rule 17- 4.20(10), Florida Administrative Code, but is a "channel", as defined by Rule 17-4.20(11) , Florida Administrative Code. Additionally, Section 403.918(5), Florida Statutes, prohibits the subject project because it is located in a lagoon and not within a canal.

    
    

29. While the two northernmost canals are part of an artificially created canal system and the proposed construction would not violate existing water quality standards, impede navigation, or affect flood control, the proposed project does not meet the exemption criteria established by Rule 17-4.040(9)(f), Florida Administrative Code.

    
    

30. Although these canals were excavated from uplands and not originally located within a lagoon prior to the plug being removed, they became connected to surface waters of the state which were within a lagoon and extended the lagoon upon removal of the plug. This definition of "lagoon" has been consistently applied by the Department and is consistent with the provisions of Section 403.918(5), Florida Statutes, and Rule 17- 4.040(9)(f), Florida Administrative Code. Therefore, since there are no existent vertical seawalls in the two northernmost canals, the proposed project does not meet the exemption criteria established by Rule 17-4.040(9)(f), Florida Administrative Code.

    
    

31. Were the waters abutting the project found not be a lagoon, then the provisions of Section 403.918(2), Florida Statutes, would be pertinent, at least as to the construction proposed along the western and southern shoreline. As previously noted, the subject waters are Class III Outstanding Florida Waters. Accordingly, the burden was on the applicant to provide reasonable assurances that the project was clearly in the public interest.

    
    

32. Upon consideration of the criteria set forth in Section 403.918(2), Florida Statutes, it is concluded that the petitioner has failed to meet his burden of proof. In fact, the weight of the evidence fails to show that the project is not contrary to the public interest.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is recommended that the application be denied.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of September, 1988.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1050

Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1988.

ENDNOTES

1/ The subject waters are Outstanding Florida Waters because they are located within the National Key Deer Wildlife Refuge. Rule 17-3.041(4)(b), Florida Administrative Code. The subject project will not, however, adversely impact the Key Deer or its habitat which lies north of U.S. 1. The waters that abut the shoreline are also Outstanding Florida Waters pursuant to Rule 17- 3.041(4)(i), Florida Administrative Code.

2/ The proof demonstrates that the Department was aware of petitioner's intention to place a vertical seawall and patio cap upon the existing caprock. The permit is, however, silent as to such construction, and there is no proof that a permit for such work was required at that time.

3/ There was one lot in the second most northern canal on which a vertical seawall was constructed on top of the caprock. That construction was not permitted by the Department, and the owner's after-the-fact application for a permit was denied. Currently, the Department is seeking the removal of that seawall. Such seawall cannot, under the circumstances, be considered a basis for exemption in this case.

Appendix 1

Petitioner's proposed findings of fact are addressed as follows: 1-12. Addressed in paragraphs 3-12, and 17.

1. Addressed in paragraph 16.

2. Rejected as not relevant or necessary to result reached.

3. Addressed in paragraphs 21-23.

4. Addressed in paragraph 17.

17-19. Addressed in Paragraphs 11-13.

20. Addressed in paragraph 1. 21-22. Rejected as not relevant.

1. Addressed in paragraph 16. Proposed finding that "caprock shelf was scraped as a result of the special condition of the 1976 permit" is rejected as not supported by the proof.

2. Addressed in paragraph 20.

Respondent's proposed findings of fact are addressed as follows:

1,2,4,&5. Addressed in paragraphs 4-10.

3. Addressed in paragraph 1.

6-8. Addressed in Paragraphs 1 and 21-23.

9-11. Addressed in paragraphs 3 & 8, and paragraph

5 conclusions of law.

12-16. Addressed in paragraphs 11-13.

17. Addressed in paragraph 3.

18-28. Addressed in Paragraphs 1 and 14-20.

COPIES FURNISHED:

David Paul Horan, Esquire 608 Whitehead Street

Key West, Florida 33040

Karen A. Brodeen, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Dale Twachtmann, Secretary Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Daniel H. Thompson, Esquire General Counsel

Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Docket for Case No: 87-004067

Orders for Case No: 87-004067