STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUNLAND ESTATES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 88-1813

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent, )

)

and )

) THE IZAAK WALTON LEAGUE, ) MANGROVE CHAPTER, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on July 6, 1989, in Miami, Florida.

APPEARANCES

For Petitioner: Cayetano F. Alfonso, President

Sunland Estates, Inc.

17400 Northwest 17th Avenue Miami, Florida 33056

and

Earl R. Rich

6630 Southwest 48th Terrace Miami, Florida 33155

For Respondent: Richard Grosso, Esquire

Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32300

For Intervenor: Maureen B. Harwitz, Esquire

2390 Bayview Lane

North Miami, Florida 33181 STATEMENT OF THE ISSUE

Whether Petitioner's application for a dredge and fill permit should be approved?

PRELIMINARY STATEMENT

The Department of Environmental Regulation issued its Intent to Deny Petitioner's application for a dredge and fill permit, and Petitioner timely requested a formal hearing regarding the Department's preliminary determination. This matter was, accordingly, referred to the Division of Administrative Hearings for the conduct of a formal proceeding.

Petitioner presented the testimony of Cayetano F. Alfonso and Earl R. Rich.

Additionally, Petitioner's Exhibits numbered 1-8 were admitted in evidence.

Respondent Department of Environmental Regulation presented the testimony of Kelly J. Custer, Renate Skinner, and David Bishof. Additionally, Respondent's Exhibits numbered 1-7, 16, 17, 20, and 21 were admitted in evidence.

Intervenor Izaak Walton League, Mangrove Chapter, presented no evidence.

All parties submitted post-hearing proposed findings of fact. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the owner and developer of a parcel of land located on the eastern side of the northern end of Key Largo, Monroe County, Florida. Located in the middle of that parcel is a dead-end east-west canal approximately two feet deep at its eastern end where it opens to the Atlantic Ocean and approximately twenty feet deep at its western dead-end. The canal is approximately fifty feet wide.

   
   

2. A plug at the mouth of the canal previously prevented boat traffic from entering and exiting the canal. Petitioner's predecessor in title permitted the plug to partially erode, and Petitioner's president had some of the boulders which helped form the plug removed. The digging of the canal, the placement of the plug, and the partial removal of the plug were performed without benefit of state and federal permits.

   
   

3. Petitioner's development plan is that twenty single-family homes will surround the canal, with each home being serviced by a septic tank and a boat dock.

   
   

4. On the oceanside of the partial plug is a small depressed area which was dredged at the same time that the canal itself was dredged. Surrounding that depressed area is very shallow water.

   
   

5. Petitioner proposes to remove the plug from the existing canal and shallow the canal to a uniform depth of -10 feet and two years later to a uniform depth of -6 feet. Petitioner further proposes to dredge an access channel from the mouth of the canal northward for a distance of approximately

   480 feet where it would join with an existing channel. The access channel proposed to be dredged would be approximately fifty feet wide and six feet deep at low tide.

   
   

6. The area to be dredged to create the access channel is classified as Class III waters, is within the Florida Keys Special Waters, and is also classified as Outstanding Florida Waters. The waters outside the existing canal

   where Petitioner proposes to dredge the access channel are also located within John Pennekamp State Park, the site of a natural coral reef.

   
   

7. Due to the disparity in depths between the shallow waters outside the existing canal which are only one or two feet deep and the depth of the existing canal which is as deep as twenty feet, the canal itself experiences a very long flushing time. The lengthy flushing time causes the waters in the existing canal to fall below minimum state water quality standards

   
   

8. The area proposed to be dredged for the navigational access channel is thickly vegetated by a productive seagrass and algae community. The area is in excellent condition, and the seagrass and algae community is very healthy.

   
   

9. The seagrass and algae communities serve as habitat for thousands of organisms, including juvenile lobster and other small plants and animals; serve as a food source for animals; stabilize sediments through their root structures; reduce pollution by filtering pollutants from the water; are a natural feature of the John Pennekamp State Park, and are part of the ecological unit that is important for the survival of reef corals.

   
   

10. The proposed dredging of the access channel would destroy an area of approximately one-half acre. Excessive turbidity is often a problem with dredge and fill activities, and reef coral need clear water for survival. Once dredged, the proposed access channel would not be expected to revegetate. Further, the proposed dredged channel will violate state water quality standards for dissolved oxygen.

    
    

11. The proposed navigational access channel would connect the mouth of the existing canal with the Post channel to the north of Petitioner's property. The Post channel dug in approximately 1971 is also six feet deep, violates state water quality standards for dissolved oxygen, and has never revegetated even though replanting of vegetation has been attempted.

    
    

12. The destruction of the one-half acre area of healthy productive habitat would adversely affect fish and other marine wildlife, resulting in a decrease in fishery production and marine productivity.

    
    

13. The residential subdivision will be a source of pollutants from, among other things, septic tanks, fertilizers, stormwater run-off from paved areas, boats, and boat engines, into the existing canal in violation of state water quality standards for Class III waters and would lower the ambient water quality of the adjacent Outstanding Florida Waters.

    
    

14. The long flushing time of the canal, even if shallowed as proposed, will result in the waters of the canal failing to meet state water quality standards. Any pollutants or organic material entering or blown into the canal will remain in the canal to be broken down by bacteria which consume oxygen, resulting in low dissolved oxygen in violation of state water quality standards. Further, pollutants will be exported periodically into the receding waters outside the canal, resulting in degradation of those Outstanding Florida Waters.

    
    

15. The project is not in the public interest since the project will result in water quality violations and in the destruction of an area of highly productive shallow water habitat.

    
    

16. The adverse cumulative impacts of allowing riparian landowners along the Florida Keys to dredge access channels are overwhelming.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

    
    

18. A permit is required for the dredging and filling proposed by Petitioner in this cause. Section 409.913(1), Florida Statutes. Such a permit can only be issued if Petitioner has provided reasonable assurances both that the project will not violate state water quality standards and that the project will meet the applicable public interest test. Section 403.918, Florida Statutes.

    
    

19. Because the project is located within Outstanding Florida Waters, the project cannot be permitted if it is expected to degrade the ambient water quality of the surrounding waters. Rules 17-3.041 and 17-4.242, Florida Administrative Code. Because the project is expected to violate state water quality standards for dissolved oxygen, it cannot be permitted. Section 403.918(1), Florida Statutes.

    
    

20. Because the project is within Outstanding Florida Waters, it cannot be permitted unless Petitioner has provided reasonable assurances that the project would be clearly in the public interest. Section 403.918(2), Florida Statutes. Since the project will result in the destruction of a healthy seagrass and algae community, the project will adversely affect fish and wildlife, their habitat, and marine productivity in the vicinity of the project, and it will degrade the current condition and relative value of functions being performed in the affected area. Given that the area is not expected to revegetate, and given the additional discharge of pollutants and nutrients expected by the proposed opening of the existing dead-end canal for use by boat traffic and other residential activities, the adverse effects of the project will not be offset. On balance, the proposed project fails to be clearly in the public interest but rather would be detrimental to the public interest. The increased pollution expected from Petitioner's planned development by way of septic tank discharges, boats and boat engines, lawn fertilizers, and stormwater run-off from paved areas will degrade the Outstanding Florida Waters adjacent to the residential development. Therefore, this project cannot be permitted.

    
    

21. In considering the project under the applicable criteria, not only its own effects but also those of similar projects for which applications reasonably may be expected must be considered. Section 403.919, Florida Statutes. The cumulative impact of allowing similarly-situated landowners in the Florida Keys to do this type of dredging and filling would be overwhelming.

    
    

22. Although Petitioner contends that it is willing to install a curb around the existing canal to prevent run-off into the canal, no evidence was offered to show that such a result would in fact be likely. Further, even if such a curb could be constructed to reduce run-off into the existing canal, such a curb would have no effect in preventing surface run-off over the curb or under the curb, would have no effect on pollutants and nutrients discharging into the canal through the ground adjacent to the canal, and would have no effect on direct discharge of pollutants and other organic material directly into the canal. Similarly, Petitioner's contention that the adverse impacts of the proposed project would be reduced by the mechanical planting of seagrass and algae in the dredged channel is unlikely since the evidence clearly reveals that such efforts of replanting have been met with only very minimal success, and

    such efforts have been unsuccessful when attempted in the adjoining Post channel.

    
    

23. The parties have offered argument and some evidence regarding litigation between Petitioner and the United States of America concerning the questions of the legality of the existing canal and the legality of the partial plug at the mouth of the existing canal. Such enforcement actions filed by the federal government against Petitioner and/or Petitioner's predecessor in title are irrelevant to this proceeding This proceeding only involves the question of whether the Florida Department of Environmental Regulation should issue to Petitioner the dredge and fill permit sought by Petitioner, i.e., whether Petitioner has met the statutory and rule criteria for obtaining such a permit. Petitioner has not.

    
    

24. Intervenor Izaak Walton League, Mangrove Chapter, offered no evidence to prove that it is substantially affected by the proposed project. Intervenor having failed to prove it has standing to intervene in this proceeding, it is recommended that Intervenor Izaak Walton League, Mangrove Chapter, be dismissed as a party to this proceeding.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore,

RECOMMENDED that a Final Order be entered:

1. Denying Petitioner's application for a permit for its proposed project,

   and

   
   

2. Dismissing Intervenor Izaak Walton League, Mangrove Chapter, as a party

to this proceeding.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 5th day of November, 1989.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1989.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 88-1813

1. Petitioner's proposed findings of fact numbered 1 and 2(a) have been rejected as being contrary to the weight of the evidence in this cause.

2. Petitioner's proposed findings of fact numbered 2(b) and 2(d) have been rejected as not being Supported by the evidence in this cause.

3. Petitioner's proposed finding of fact numbered 2(c) has been rejected as being irrelevant to the issues under consideration in this cause.

4. The Department's proposed findings of fact numbered 1-10 and 12-22 have been adopted either verbatim or in substance in this Recommended Order.

5. The Department's proposed finding of fact numbered 11 has been rejected as being unnecessary for determination of the issues herein.

6. Intervenor's proposed findings of fact numbered 1- 13, 16, 18, 20, and

   21 have been adopted either verbatim or in Substance in this Recommended Order.

7. Intervenor's proposed finding of fact numbered 15 has been rejected as being unnecessary for determination of the issues in this cause.

8. Intervenor's proposed finding of fact numbered 19 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law.

COPIES FURNISHED:

Pamela P. Garvin, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399

Cayetano F. Alfonso, President Sunland Estates, Inc.

17400 Northwest 17th Avenue Miami, Florida 33056

Maureen B. Harwitz, Esquire 2390 Bayview Lane

North Miami, Florida 33181

Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Docket for Case No: 88-001813

Orders for Case No: 88-001813