STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CHIPOLA BASIN PROTECTIVE GROUP, INC., )
)
Petitioner, )
and )
)
FLORIDA CHAPTER SIERRA CLUB, )
)
Intervenor, )
)
vs. ) CASE NO. 88-3355
) DEPARTMENT OF ENVIRONMENTAL REGULATION ) and DEVELOPERS DIVERSIFIED, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case on September 29-30, 1988, at Marianna, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.
Appearances for the parties at the hearing were as follows:
FOR PETITIONER Peter B. Belmot, Esquire
AND INTERVENOR: 511 31st Avenue North
St. Petersburg, Florida 33704
FOR DEVELOPERS William E. Williams, Esquire
DIVERSIFIED: Robert D. Fingar, Esquire
J. D. Boone Kuersteiner, Esquire Huey, Guilday, Kuersteiner & Tucker Post Office Box 1794
Tallahassee, Florida 32302
FOR DEPARTMENT OF Steven K. Hall, Esquire ENVIRONMENTAL Carol Forthman, Esquire
REGULATION: Richard Donelan, Esquire 2600 Blair Stone Road
Tallahassee, Florida 32399-2400 ISSUES
The basic issue in this case is whether the Department of Environmental Regulation (hereinafter "DER") should issue a dredge and fill permit/water quality certification to Developers Diversified to construct the Crossroads Shopping Center at the intersection of State Road 71 and U.S. Highway 90 in Marianna, Jackson County, Florida. Other more Specifically stated issues were described as follows in the parties' Prehearing Stipulation:
Whether or not the unnamed jurisdictional watercourses on this project site should be considered a part of the Chipola River and therefore be considered as Outstanding Florida Waters for the purposes of the Section 403.918(1) and (2), Florida Statutes, permit review criteria and Rule 17-25, Florida Administrative Code, stormwater treatment capacity requirements.
Whether or not Developers Diversified has provided "reasonable assurances" pursuant to Section 403.918, Florida Statutes, such that the permit should be issued pursuant to the applicable criteria in Chapter 403, Florida Statutes, and rules promulgated thereunder.
Whether Developers Diversified is entitled to costs and reasonable attorney fees, pursuant to Sections 120.59(6)(a) and/or 403.212, Florida Statutes.
INTRODUCTION
This case began with the June 30, 1988, filing of a timely Petition For Administrative Proceeding by Chipola Basin Protective Group, Inc. (hereinafter "CBPG"). The original CBPG petition challenged DER's proposal to grant the subject application. On September 1, 1988, CBPG filed an Amended Petition in which it asserts standing under Section 403.412(5), Florida Statutes. On August 4, 1988, Florida Sierra filed a Motion To Intervene, alleging that it is a "citizen of the state," within the meaning of Section 403.412(5), Florida Statutes. Florida Sierra was granted Intervenor status, subject to proof at hearing.
Prior to the final hearing, the parties pre-filed direct expert testimony or, as permitted by the Hearing Officer's Order, depositions of certain experts. At the final hearing, Developers Diversified called Ryan R. Stockton, W. Michael Dennis, Ph.D., William F. Grey, Ph.D., Frank Fabre, and R. Walter Ogburn, III, Ph.D., as its witnesses. Dr. Dennis was qualified as an expert in wetlands evaluation, plant taxonomy and ecology, and threatened and endangered species.
Dr. Grey was qualified as an expert in plant taxonomy, plant ecology, threatened and endangered species, and wetlands ecology. Mr. Fabre was qualified as an expert in the areas of environmental engineering and the design and operation of stormwater collection and treatment systems. Dr. Ogburn was qualified as an expert witness in environmental chemistry, aquatic chemistry, laboratory quality assurance, and aquatic ecology. Developers Diversified also proffered the rebuttal testimony of Richard S. Fuller, an expert in the area of archeology and in archeological site investigations and surveys. Developers Diversified offered Developers Diversified's Exhibits 1, 8, 11, 13, 14B and C, 20-24, 25 and
25A, 26 and 26A, 27, 30, 31A and B, 32, 33A, 35, 36A-D, 38-1 through 38-11, 39,
41, 45-47, 52-54, 57, 60 and 60A, 61, and 101-102, which were received into evidence.
DER called David H. Bickner, Dar-Guam Cheng, Randall L. Armstrong, and George Baragona as its witnesses. Mr. Bickner was qualified as an expert in biology, ecology, and the application of DER rules and policies to dredge and fill applications Mr. Cheng was qualified as an expert in soil sciences. Mr. Armstrong was qualified as an expert in biology, the processing of DER dredge and fill application, and the application of DER's mitigation policy to dredge and fill permits. Mr. Baragona was qualified as an expert in the design and function of stormwater conveyance and treatment systems, hydrology, and the application of DER rules and policies to the permitting of stormwater conveyance and treatment systems. DER offered DER's Exhibits 1- 9, which were received into evidence.
Florida Chapter Sierra Club (hereinafter "Florida Sierra") and CBPG called Ann M. Redmond, Sydney T. Brinson, Calvin Jones, Laurie Ann MacDonald, and Janet Llewellyn as its witnesses. Ms. Redmond was qualified as an expert in biology and in the evaluation of dredge and fill projects with a specialty in mitigation policies. Ms. Brinson was qualified as an expert in botany, plant taxonomy, wetlands ecology, and wetlands mitigation. Mr. Jones was qualified as an expert in archeology and the assessment of development impacts to archeological resources. Ms. Llewellyn was qualified as an expert in biology, wetlands ecology, and the evaluation of dredge and fill applications. Florida Sierra and CBPG offered Petitioner's Exhibits 1-6, 7A and B, 8, 9A-D, 13A-F, and 14-16, which were received into evidence. Petitioner's Exhibits 10 through 12 were objected to and were excluded. Florida Sierra offered Intervenor's Exhibit 1, which was received into evidence. The parties also submitted a Prehearing Stipulation, which was made a joint exhibit. During the hearing, Developers Diversified renewed its Motion to Dismiss Florida Sierra for lack of standing.
A ruling on this motion was reserved until the entry of this Recommended Order.
The transcript of the proceeding was filed on October 3, 1988, and the parties agreed that they would file proposed findings of fact and conclusions of law by October 21, 1988. The proposed findings of fact submitted by the parties have been considered and a specific ruling on each proposed finding of fact is made in the Appendix, attached hereto and made a part of this Recommended Order.
FINDINGS OF FACT
Based on the stipulations of the parties and on the evidence received at the final hearing in this case, the following findings of fact are made.
Respondent, DER, is the state agency charged with administering the provisions of Chapter 403, Florida Statutes, and rules promulgated thereunder, including the issuing of dredge and fill and certain stormwater permits/water quality certifications.
Developers Diversified applied to DER for a dredge and fill permit/water quality certification to construct a shopping center and associated stormwater facilities by filling approximately four acres of DER jurisdictional wetlands. The project site is located at the intersection of State Road 71 and
U.S. Highway 90, east of Marianna, Jackson County, Florida.
The project is to be known as the Crossroads Shopping Center. It will be constructed on a 20-acre site and will consist of 165,000 square feet of enclosed area and approximately 1000 parking spaces. The center will include a major department store, a grocery store, a junior department store, and various other retail stores.
The project site includes an unnamed watercourse (hereinafter known as the "north/south watercourse") which exits the site under U.S Highway 90 and connects to a flood plain to the Chipola River, an Outstanding Florida Water, which is about one mile away.
Existing improvements to the property include a metal building, which is being used as an auto parts store, a vacant concrete building, and a residence. Developers Diversified has already removed five or six houses from the site. To the west of the site are several restaurants, a Holiday Inn, gas stations, and automobile dealerships. Other surrounding land use is a mixture of residential, commercial, and agricultural development.
Developers Diversified subsequently modified its application and the application was eventually deemed complete on January 15, 1988. On April 12, 1988, DER issued an Intent To Deny. The Intent To Deny indicated that the project would be permittable if certain further modifications were made.
After receipt of the Intent to Deny, Developers Diversified further modified the project and reduced wetland impacts to the point that only approximately 0.83 acres of DER jurisdictional wetlands will be filled. Other project modifications included moving the project approximately thirty feet to the west to reduce the amount of fill in the wetlands; the addition of wing walls at areas where fill will be sloped, thereby removing fill from stream areas; the use of an elevated pipe system to convey stormwater across the stream, so as not to impact natural flow; reduction of the project size by approximately 10,000 square feet; and the removal of one outlet, a one-half acre to one acre parcel. The stormwater treatment system was also redesigned to alleviate DER's water quality concerns.
The stream systems on site comprise four identifiable watercourses: a) The largest is a north/south stream system which originates off site at a groundwater spring located adjacent to the northeast of the site and then flows south parallel to the eastern boundary of the project site and continues off site through a culvert beneath Highway 90 on the southern boundary of the site.
b) The next largest is a small, intermittent forked tributary system which originates in a seepage slope system in the north central area of the project site and discharges into the larger north/south watercourse. c) The next largest is an intermittent east/west watercourse originating in a seepage slope system in the northwestern area of the project site which discharges into the north/south watercourse. d) The smallest is an intermittent watercourse located in the western central area of the site which originates at an outfall pipe from an unidentified source.
The streams on site are tributaries to the Chipola River, which is designated in Rule 17-3.041(4)(i), Florida Administrative Code, as an Outstanding Florida Water. The streams themselves are classified as Class III waters pursuant to the standards in Rule 17-3.121, Florida Administrative Code.
The site currently receives untreated stormwater runoff from both State Road 71 and Highway 90. Stormwater collection systems from these roads discharge directly through outfall pipes into the stream systems on site. The streams on site currently appear to receive discharges from a number of septic tank systems located either on site or on adjacent sites. High fecal and total coliform levels found in water samples taken by the applicant's experts in the course of water quality analysis of the stream systems on site are evidence of these discharges.
The ecosystem found in the undisturbed portion of the project site is a wet mesic hardwood system which is a product of the geologic and hydrologic character of the site. This type of ecosystem is uncommon in the state of Florida and is generally found only in the north central area of the Florida Panhandle. The dominant physical characteristic of the undisturbed wet mesic hardwood ecosystem on site is the presence of functioning seepage slopes. The seepage slopes on this site are hydrogeological formations which are relatively rare within the boundaries of the state of Florida. They occur as gently sloping hillsides or steeper ravines with characteristically porous upper layers of soil composed of sand or sandy clay situated atop lower strata of impervious white clays or limestone rock. Rainwater percolates through the upper layers of
these slopes and collects on top of the lower impervious layers. The water then flows down gradients beneath the soil surface, following the contour of the impervious layer until it either encounters a fissure which allows an avenue to the surface in the form of small sinkholes and seepage points, or reaches the bottom of the ravine or slope where it discharges into the larger visible stream systems on the site.
The effect of the seepage slope is the attenuation of rainfall-related moisture content in the soils on site and the resultant flattening of the hydroperiod in the system. This effect creates a wet hardwood ecosystem on this site which supports relatively unusual floral and faunal communities for Florida.
Despite their hydrologic functions in relation to the wetlands on the site, most of the seepage slope systems on the site are not considered jurisdictional wetlands pursuant to the Department's rule criteria contained in Rule 17-12.030, Florida Administrative Code.
The functions of the seepage slope systems on and adjacent to the project site not generally sensitive to adjacent development activities which do not impair the integrity and porosity of the upper strata of the soils on the slope.
Department dredge and fill regulations do not provide protection from the adverse effects of silvicultural and agricultural activities for any part of the seepage slope systems on site. Developers Diversified would not be precluded from using for future commercial development purposes a substantial portion of the seepage slope systems on site which is not directly impacted by the proposed project and not within the Department's wetlands jurisdictional area.
The natural hydroperiod of a large portion of the seepage slope systems associated with the Chipola River system was destroyed when a dam was constructed nearby at Highway 90 to create Merrits Mill Pond. Because of this factor, the function of the remaining seepage systems is more important.
On June 16, 1988, DER, in response to the applicant's permit modifications, issued an Intent to Issue with ten permit conditions, including a mitigation plan consisting of a conservation easement over approximately 12.54 acres on and adjacent to the project site.
On June 21, 1988, Developers Diversified filed with DER Proof of Publication of Notice of Proposed Agency Action.
The stormwater system is designed to meet the requirements of Chapter 17-25, Florida Administrative Code. The stormwater discharge system utilizes filter fabric and sand to filter oil and grease to prevent water quality violations. The detention ponds have over 50 per cent more storage volume than required by Chapter 17-25, Florida Administrative Code, and are designed to drain through the filters in 36 hours or less. The filtration system is designed using sand media in accordance with Rule 17-25.025(2), Florida Administrative Code. This media is separated from perforated drain pipe by filter fabric which will hold the sand in place. As both ponds are designed to draw down in 36 hours or less, a safety factor of at least 2 is provided (72 hours divided by 36 hours 2).
The stormwater system is not only designed to meet the minimum requirements of Chapter 17-25, Florida Administrative Code, but is also overdesigned to accommodate the first three- quarters of an inch of runoff. The system was overdesigned in order to receive not only the stormwater runoff from the project, but also DOT discharges from U.S. Highway 90 and State Road 71, which presently discharge into waters of the state in an untreated condition. Developers Diversified proposes utilization of construction and post- construction Best Management Practices ("BMP") to minimize the potential for adverse water quality impacts. These BMP include the construction of a ten-foot high retaining wall to prevent encroachment into the adjacent small, intermittent channel; steep embankment slopes sodded or stabilized to minimize erosion; silt fencing used along the limits of jurisdictional areas prior to construction; hay bales to reduce erosion upgradient from silt fences; sheet pilings to construct foundations of the pipe bridge; geotextile material to stabilize fill embankments to reduce erosion; disturbed areas to be sodded, grassed, or landscaped to minimize erosion after construction; use of Marafi- Miragrid fabric to stabilize slopes where staking sod alone would be ineffective to hold the slopes; and the use of natural vegetation in uplands, where possible, to retard erosion.
Developers Diversified will also employ an on-site full-time engineer to assure that the stormwater system is properly constructed, that all permit conditions are complied with by the contractor, and that construction impacts are minimized.
Developers Diversified will conduct the following post-construction activities: monthly monitoring of stormwater inlets to check for buildup of debris; regular sweeping of the parking lot; mowing of the berms of the stormwater retention ponds and removal of debris from the ponds; regular inspection of the ponds for signs of erosion; and regular inspection of the filter fabric by an engineer to make sure that the filtration system is functioning properly.
BMP during and after construction will minimize erosion. The stormwater design assures that virtually no particulate load will reach waters of the state. Further, the drainage basin for this site is only approximately
0.2 square miles. Consequently, relatively little runoff from the site potentially contributes to the Chipola River. Improved water quality will result from treating the presently untreated DOT stormwater. In addition, water quality will also be improved by eliminating presently untreated discharge which appears to include sewage. There is, therefore, little potential for degradation of the Chipola River.
DER has imposed as a permit condition, and Developers Diversified has agreed to, the posting of a construction bond equal to the amount of the construction costs of the stormwater system plus 10 per cent, to ensure that the stormwater system is constructed in accordance with permit conditions.
Water quality sampling was conducted at 11 locations on site and in the conservation area. The results of this sampling indicate a violation of state water quality standards (Chapter 17-3, Florida Administrative Code) at Sampling Station No. 4. Sampling Station No. 4 was selected to measure the water quality from the 6-inch PVC pipe located west of the north/south watercourse. Sampling at this station indicates water quality violations of standards for conductivity (specific conductance), ammonia, and total and fecal coliform. The apparent source of this discharge is effluent from untreated domestic wastewater.
Residences and commercial establishments in the vicinity of the project currently use septic tanks. Developers Diversified has agreed to fund the extension of the City of Marianna's sewer system to the project site. Pursuant to Chapter 371, Florida Statutes, all commercial establishments and residences in the area of the project site which are currently on septic tank systems will be required to hook up to city sewage. Therefore, the presence of untreated effluent in waters on the site should be eliminated.
The stormwater system at the Crossroads Shopping Center will be constructed so as to provide adequate retention areas to pick up the DOT discharge, which is presently discharging to waters of the state in an untreated condition. Therefore, the improvement in site conditions relating to elimination of the untreated sewage and DOT discharges should be considered a public benefit.
No threatened and endangered animal species were observed on site during the course of extensive site inspections by both Developers Diversified's consultants and DER staff. Because of the altered character and location of the site, it is unlikely that any such animal species would be found in the particular habitat on this site. Furthermore, DER permitting staff requested comments from the Florida Game and Freshwater Fish Commission regarding threatened and endangered animal species, and no comments were received. There is no evidence of record in this proceeding that shows the existence of any threatened or endangered animal species on site. No identified populations of plants on the threatened or endangered species list were found on the project site, with the exception of a single pyramid magnolia sighted in the upland area adjacent to the spring head of the north/south tributary.
The project site is populated by ubiquitous animal species that can forage in the wetlands and uplands adjacent to the 0.83 acres proposed for filling. Small salamanders, frogs, and minnows were observed in the few areas of pooled or flowing water. It is unlikely that these animals would be significantly affected by the project because they are either located in the conservation area or can forage in areas which will be left undisturbed. Wetlands to be filled on the site also provide minimal opportunities for detrital export.
The site contains no water deep enough to have permanent fish populations or to otherwise be of recreational value. Due to the relatively small area to be filled, the small size of the drainage basin, and the large area of wetlands within the Chipola River Basin which contributes to the Chipola River, removal of these wetlands will result in no measurable impact to fish and recreational values in the Chipola River. Permit conditions and construction and post-construction BMP will prevent harmful erosion or shoaling. This project will have no effect on navigation or the flow of water either on site or in the Chipola River.
On-site waters present no opportunity for fishing or recreation.
There should be no direct or indirect impacts on fishing and recreational values in the Chipola River. Since the on-site system is not a marine system, the proposed project will not affect marine productivity.
This shopping center development will be permanent in nature. The construction activity associated with the development will, of course, be temporary.
DER typically does not require applicants to conduct archeological site surveys. Instead, DER staff routinely requests comments on potential historic or archeological impacts of dredge and fill projects from the Secretary of State's office. DER staff requested comments from the Secretary of State's office in this case, but no comments were received. Consequently, there is no evidence of record to show the existence of any significant historical or archeological resources on the project site.
The City of Marianna and Jackson County have no zoning code, land use map, regulations on development in wetlands, or restrictions on commercial development and only limited restrictions on residential development related to the dedication of infrastructure to the county.
There is no evidence in the record indicating that existing projects impact waters of the state in the area of the project, nor is there evidence that there are other projects which are under construction, have been permitted, or have been the subject of a jurisdictional determination. Similarly, there is no evidence that any other specific projects may "reasonably be expected" in nearby jurisdictional areas.
Commercial and agricultural uses already surround the site. Since the site is located at a major road intersection, the possibility of future development exists. Should development occur, the conservation easement proposed by the applicant will be especially valuable because it will preserve a majority of the wetland system in the vicinity of the project site.
Since the enactment of the mitigation provisions of Section 403.918(2)(b), Florida Statutes, in 1984, the Department has attempted to adopt a rule to carry out this legislative provision. The Environmental Regulation Commission has approved a mitigation rule for adoption, but the rule has been the subject of successive administrative rule challenges. As a result, the Department has been operating under evolving non-rule mitigation policy in processing dredge and fill applications since 1984.
Three Department memoranda provide guidance to Department staff involved in the evaluation of mitigation issues raised in connection with dredge and fill applications currently pending before the Department: a) a March 24, 1987, memorandum from Department Secretary Dale Twachtmann to Randy Armstrong on the subject of "Interim Mitigation Policy," b) an April 30, 1987, memorandum from Randy Armstrong to Department District Mangers and Mark Latch on the subject of "Evaluation of Mitigation," and c) a June 20, 1988, memorandum from Secretary Dale Twachtmann to Randy Armstrong titled "Policy for Wetlands Preservation as Mitigation."
The selection of the proposal which will be considered to ameliorate the adverse impacts of a project is a site specific, fact specific, and project specific type of determination. Therefore, it is difficult to describe in general terms what kind of measures will be acceptable as mitigation. As indicated in all three memos, the Department does consider a wide variety of types of proposals in determining how a permit applicant can best mitigate the adverse impacts of the proposed project.
The Department's dredge and fill permitting technical staff and policy makers generally go through at least three steps in considering what type of mitigation will be best suited for a specific project. The first step is to consider reasonable modifications to project placement and design which will minimize or eliminate any of the anticipated adverse impacts. If, for some
reason, the applicant cannot reasonably comply with the Department's suggested modifications to minimize the adverse impacts by redesigning its project, the applicant is then allowed to develop alternatives for the creation of artificial wetland habitat or the enhancement of existing impacted wetlands on the project site. If for some reason the creation and enhancement of wetland areas on-site is not feasible, then the option of the creation or enhancement of wetland areas adjacent to the project may be explored. As a final matter, the Department may consider the dedication of property rights to the state as means of preserving wetlands and other valuable natural areas as a means of mitigating for expected adverse impacts. Property dedication can take the form of perpetual conservation easements or the conveyance of fee simple title on properties within the project boundaries or adjacent to the project site.
As a result of a finding by the Department that Developers Diversified's proposed project proposed project was not permittable because of the adverse impacts of the habitat loss in the more valuable western potions of the east/west tributary and the northern forked seepage stream system, the Department considered modification options and mitigation proposals with the applicant in an effort to ameliorate those adverse impacts.
The Department suggested a list of modifications which the applicant could make to the proposed project to eliminate or minimize the filling of jurisdictional wetlands on the project site. The applicant made the following modifications to the project in response to the Department's suggestions:
The project was moved 30 feet to the west to reduce encroachment into the wetlands from 1.26 acres to 0.83 acres.
An elevated stormwater drain crossing of the jurisdictional area was designed to eliminate the fill pipeline crossing originally proposed.
A retaining wall 10 feet high and 150 feet long was designed to prevent encroachment of the project into approximately 1,000 square feet of wetlands to preserve a small, intermittent stream channel.
Steep embankment slopes (1:1.5) were designed to reduce encroachment into the wetlands. These slopes will be sodded or otherwise stabilized to minimize erosion.
Silt fencing will be installed along all limits of project construction adjacent to jurisdictional areas prior to commencement of construction and will be maintained during the entire construction phase.
Geotextile or equivalent will be used to stabilize the fill (embankment) to support the building foundations and roadwork along the east side of the site. This will serve to reduce erosion of the fill into the jurisdictional area during and after project construction.
All areas disturbed during construction and not paved or covered by structures will be sodded, grassed, or landscaped to minimize erosion after project construction.
Mirafi-Miragrid fabric will be used to stabilize slopes where staking sod alone would be ineffective. This material will hold sod firmly in place until it is established.
The Department considered wetlands creation and enhancement proposals provided by the applicant for areas both within the boundaries of the site and adjacent to the site. The Department and Developers Diversified discussed the feasibility of developing plans for the re-creation of both the hardwood slope forest type environment and the seepage slope environment either on site or adjacent to the site. However, in further exploring those options, both Department staff and the applicant's engineers agreed that the topography and soil characteristics of the area, combined with the complex nature of the systems which would have to be re-created, made both options impractical and most likely impossible. The department considered the option of accepting preservation of the seepage slope system as mitigation only after determining that wetland creation and/or enhancement options were not available to mitigate the adverse impacts of the project.
As a means of utilizing the option of preservation of the remaining wetlands and other natural features within or adjacent to the project site, the Department considered the applicant's proposal for conveying conservation easements over all of the approximately 6 acres, both jurisdictional wetlands and uplands, which remained on the northern and eastern side of the project site. In addition, the applicant arranged for the donation of a conservation easement over approximately 6.5 acres of additional jurisdictional wetlands and related upland areas adjacent to the northern and eastern boundaries of the project site. The proposal provided for the execution of perpetual conservation easements over approximately 12.564 acres of high quality seepage slope and stream systems on or adjacent to the project site.
The Department's guidelines on the acceptance of preservation proposals as mitigation recognize that the State of Florida is paying high prices for environmentally unique and threatened land through public land acquisition programs such as the Conservation and Recreation Lands Program. As a result, the Department considers that the possibility of acquiring such properties by donation makes the serious consideration of such preservation proposals environmentally and economically necessary.
The Department considered the following factors in determining whether or not it was appropriate to accept the proposed conveyance of conservation easements in this case:
Whether or not the parcel is under consideration for purchase and management as a conservation area or is immediately adjacent to one, or is of such high quality as to provide clear benefit to the state as preserved land;
The current degree of threat to the parcel;
The proximity of the parcel to the site of the project for which mitigation is required;
The quality of the conveyance instrumcnt and the status of other encumbrances, such as mineral rights;
Whether the parcel is within, near, or adjacent to any waters with a special designation such as parks, aquatic preserves, and Outstanding Florida Waters;
The condition of the property as a result of previous activities, such as the disposal of hazardous or solid waste.
The Department considered the following factors in assessing the relative value of the areas proposed for preservation on and adjacent to this project site:
Relative proximity to existing or anticipated activity that would affect its environmental value;
Existing water quality;
Presence of threatened or endangered species;
Presence of feral animals that would affect resources;
Presence of historic or archeological sites;
The hydrological importance of the surface water and ground water at that location;
The configuration of the parcel.
The proposed conservation easements mitigate the adverse effects of the proposed filling by perpetually preserving virtually all of the watershed for the north/south tributary on site and ensuring the continued functioning of this system in the face of future unrestricted commercial development in the area.
The proposed preservation option ratio preserves over 15 acres of similar or better quality wetland and related uplands slope systems for every acre of jurisdictional wetlands to be filled. This 15:1 ratio is within the limits of the acceptable range of 10:1 to 100:1 proposed in the Department Secretary's June 20, 1988, memorandum for this type of preservation proposal.
The Department has already accepted a mitigation proposal in one standard form dredge and fill permitting matter which involved the use of preservation through conservation areas alone.
The DER Southwest District Office has issued Warning Notices to Developers Diversified for two shopping center projects in Pasco County, known as Bayonet Point and Pasco Square. At Pasco Square, the stormwater system was allegedly not constructed in accordance with permit specifications and the mitigation and enhancement areas were allegedly also not constructed. At Bayonet Point, a retention area was allegedly overgrown with nuisance species, a littoral shelf for a retention area was not complete, and portions of the stormwater system were not properly constructed. In addition, DER did not have proof that the conservation easement had been recorded with the Clerk of the Court. Subsequently, the permit was modified to eliminate the littoral shelf requirement. At the time of this hearing, all work on Bayonet Point has been completed to DER's satisfaction. Required work is underway at Pasco Square. No Notice of Violation or other enforcement action has been pursued against Developers Diversified relating to these or any other projects.
The CBPG is a not-for-profit corporation incorporated under the laws of the State of Florida and, as such, is considered to be a citizen of the state for the purposes of Section 403.412(5), Florida Statutes. The CBPG filed a verified petition for hearing alleging that the activities sought to be permitted will impair, injure, or pollute the natural resources of the state. The CBPG was concerned about the loss of wetlands on the proposed development
site. The totality of the evidence fails to support a finding that CBPG undertook this action for an improper purpose or that its motives were frivolous.
The correct full name of the Florida Sierra is "the Florida Chapter of the Sierra Club." The nature of Florida Sierra and of the Sierra Club is described as follows in Section 1.1 of Article 1 of the Bylaws of the Sierra Club Florida Chapter:
This Chapter is constituted by action of the Board of Directors of the Sierra Club on February 14, 1971, in accordance with and subject to the provisions of the Bylaws of
the Sierra Club. This Chapter is an integral part of the Sierra Club and is governed by its Bylaws; it is not a separate legal entity. The Sierra Club is a California- based corporation registered as a foreign
non-profit corporation with the Florida Secretary of State.
Section 1.5 of Article 1 of the same Bylaws provides, in pertinent part: "The members of this Chapter shall be those members of the Sierra Club who reside within the geographical limits of the Chapter. . . ." Those geographical limits are identical to those of the State of Florida. And Section 2.1 of Article 2 of the subject Bylaws requires that the management of the affairs and activities of Florida Sierra be carried out in a manner consistent with the purposes of Sierra Club National and the policies and directives of the National Board.
The purposes of Florida Sierra include the protection, exploration, and enjoyment of the natural resources of the state. In that regard, the organization has an outings program, is involved in conservation issues, distributes a newsletter, and educates and champions other activities promoting the protection of the natural resources of the state. Florida Sierra has its own bank account with a treasurer responsible for its finances. The Bylaws of Florida Sierra vest the powers and duties of "the Florida Chapter of the Sierra Club" in a board of directors referred to as the Florida Executive Committee.
Florida Sierra has not alleged, and there is no evidence of record, that it is a Florida corporation. Florida Sierra has not registered in any county in Florida under the Fictitious Name Statute, Section 865.09, Florida Statutes. Furthermore, Florida Sierra is not an unincorporated association. The national Sierra Club, Inc., a California corporation, is registered in Florida as a foreign corporation authorized to do business in this state.
CONCLUSIONS OF LAW
Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law.
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57(1), Fla. Stat.
The DER has permitting jurisdiction over the proposed project pursuant to the provisions of Chapter 403, Florida Statues, and Chapters 17-3, 17-4, 17- 12, and 17-25, Florida Administrative Code.
Section 403.918, Florida Statutes, provides in pertinent part:
A permit may not be issued under
s. 403.91-403.929 unless the applicant provides the department with reasonable assurance that water quality standards will not be violated. The department, by rule, shall establish water quality criteria for wetlands within its jurisdiction, which criteria give appropriate recognition to the water quality of such wetlands in their natural state.
A permit may not be issued under
403.91-403.929 unless the applicant provides the department with reasonable assurance that the project is not contrary to the public interest. However, for a project which significantly degrades or is within an Outstanding Florida Water, as provided by department rule, the applicant must provide reasonable assurance that the project will be clearly in the public interest.
In determining whether a project is not contrary to the public interest, or is clearly in the public interest, the department shall consider and balance the following criteria:
Whether the project will adversely affect the public health, safety, or welfare or the property of others;
Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species,
or their habitats;
Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project.
Whether the project will be of a temporary or permanent nature;
Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and
The current condition and relative value of functions being performed by areas
affected by the proposed activity.
The watercourses on the project site are not Outstanding Florida Waters. Tributaries to the Chipola River, because they are not specifically listed as such in Rule 17- 3.041, Florida Administrative Code, are not
Outstanding Florida Waters. Where the Department intends to include specific tributaries, such as Indian Creek (a tributary to the Rainbow River listed in Rule 17-3.04(4)(i), Florida Administrative Code), they are expressly designated as part of the related river's Outstanding Florida Waters designation. The express language of Section 17-3.041, Florida Administrative Code, clearly indicates that any tributaries intended to be so designated are listed in the rule. The reference "but excluding all other tributaries" in the instance where specific tributaries are listed with a designated water body further supports this conclusion. (See, for example, rule references for Lemon Bay Estuarine System, Little Manatee River, Santa Fe River System, Sarasota Bay Estuarine System, and the Wekiva River in Rule 17-3.041, Florida Administrative Code.) The Petitioner and Intervenor have, by reliance on various rules of statutory construction, argued strenuously for a different interpretation of Rule 17- 3.041, Florida Administrative Code. The interpretation urged by the Petitioner and Intervenor is inappropriate because the rule language is clear and it is well settled that resort to the rules of statutory construction is inappropriate where, as here, the language of the subject statute or rule is clear. See Gough
v. State ex rel. Sauls, 55 So.2d 111 (Fla. 1951); Ervin v. Capital Weekly Post,
97 (So.2d 464 (Fla. 1957); Union Camp Corp. v. Seminole Forest Water Man. Dist., 302 So.2d 419 (Fla. 1st DCA 1974).
Developers Diversified has provided reasonable assurances that the proposed project will not violate water quality standards established pursuant to Chapter 403, Florida Statutes, and Rules 17-3.051, 17-3.061, and 17-3.121, Florida Administrative Code, relating to Class III waters. In reaching this conclusion, consideration has been given to all evidence regarding the possibility of water quality violations related to the construction and operation of the proposed project. Such evidence has been weighed against the evidence concerning construction controls on site and the proposed plans for construction of the stormwater system, all of which show adequate water pollution controls. The evidence also indicates that the proposed project will result in the abatement of the known water quality problems on the site. The proposed permit contains specific conditions addressed to these factors, which conditions have been agreed to by Developers Diversified. The proper construction of the stormwater system is secured by a requirement for a construction bond. It is also concluded that the stormwater treatment system meets the design criteria in Chapter 17-25, Florida Administrative Code. Accordingly, pursuant to those rule provisions, it is presumed that the proposed project will not violate water quality standards.
The project without mitigation would be contrary to the public interest because of the overall loss of 0.83 acres of wetlands, including approximately 0.4 acres of good quality seepage slope streams in the north and west areas of the project. This loss offends Section 403.918(2)(a)2., Florida Statutes, concerning effects on the conservation of fish and wildlife and their habitats. This is especially important in view of the fact that the seepage slope systems are subject to adverse impacts from development which are not under the jurisdiction of the Department. Although the loss of these small wetlands alone would not greatly impact the existence of seepage slope systems in the region, the impact of the loss must be considered in light of the previous seepage slope systems lost in conjunction with the Merrits Mill Pond dam.
The preponderance of the evidence indicates that the project with the proposed mitigation is not contrary to the public interest and will not violate Section 403.918, Florida Statutes, in that the project with the proposed mitigation will not adversely affect the public health, safety, welfare, or
property of others; nor adversely affect the conservation of fish and wildlife, including endangered or threatened species or their habitats; nor adversely affect navigation or flow of water or cause harmful erosion or shoaling; nor adversely affect the fishing or recreational values or marine productivity in its vicinity; nor adversely affect significant historical or archeological resources.
Section 403.918(2)(b), Florida Statutes (1987), contains the following legislative policy mandate to the Department for use in reviewing dredge and fill applications like the one at issue here:
If the applicant is otherwise unable to meet the criteria set forth in this subsection [referring to Subsection (2) of Section 403.918], the Department, in deciding to
grant or deny a permit, shall consider measures proposed by or acceptable to the applicant to mitigate adverse impacts which may be caused by the project.
The Department is currently carrying out this legislative direction to consider mitigation proposals in connection with otherwise unpermittable dredge and fill project applications. The Department has been unable to implement a formal mitigation rule because of the pendency of a succession of rule challenges filed since the Environmental Regulation Commission first proposed to adopt a mitigation rule in June 1986. The Department, however, has clear legal authority to carry out its legislative mandate contained in Section 403.918(2)(b), Florida Statutes, without formal rulemaking. It is a well accepted principle of administrative law that the Department may, as an administrative agency carrying out its statutory duties, apply non-rule policy considerations even without formal rules through a "case-by-case adjudicatory process." Rolling Oaks Utilities, Inc. v. The Florida Public Service Commission,
13 FLW 1629, 1630 (Fla. 1st DCA 1988); Florida Power Corporation v. State of Florida, Siting Board, 513 So.2d 1341, 1343 (Fla. 1st DCA 1987). The Department's mitigation decision in this case is just such a "site specific, fact specific, and project specific" adjudicatory determination.
The Florida Supreme Court has explicated the basic legal framework by which to judge an adjudicatory decision based on incipient or evolving policy considerations. In City of Tallahassee v. Florida Public Service Commission,
433 So.2d 505, 507 (Fla. 1983), the Court stated:
If the P.S.C. seeks to exercise its authority on a case-by-case basis until it has focused
on a common scheme of inquiry derived through experience gained from adversary proceedings, then we hold that there should be erected no impediment to the P.S.C.'s election of such course. We feel that the ad hoc pronouncements either through orders of the
P.S.C. or through decisions made after adversary proceedings should be viewed as de facto rules, or as expressed in McDonald v. Department of Banking and Finance, 346 So.2d
569 (1st DCA 1977); cert. denied, 368 So.2d 1370 (Florida 1979), "incipient policy."
The Department must present for cross examination its review of the mitigation proposal and the facts on which the mitigation decisions were based. Florida Power Corporation v. State of Florida, Siting Board, 513 So.2d at 1434. The test of the validity of a non-rule policy has been compared to the fundamental test for the validity of an adopted rule. Delray Beach v. Florida Department of Transportation, 456 So.2d 944, 946 (Fla. 1st DCA 1977). Therefore, the Department needs to establish that its decision here is within the scope of delegated legislative authority, bears reasonable relation to the purpose of the Legislature in creating the mitigation provisions of Section 403.918, and is not arbitrary or capricious. Grove Isle, Ltd. v. State Department of Environmental Regulation, 454 So.2d 571 (Fla. 1st DCA 1984).
This test requires that the Department describe the reasoning behind its mitigation policy decision in this case and thereby establish that the decision was not a capricious action (which has been defined as one taken without thought or reason or irrationally) or an arbitrary decision (which is one not supported by facts or logic, or despotic). The Department must show that its administrative discretion was well reasoned and based on competent substantial evidence or such evidence as a reasonable person would accept as adequate to support a conclusion. Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759, 763 (Fla. 1st DCA 1978).
It is concluded that the Department's decision to accept Developers Diversified's mitigation proposal in this case is within the scope of its delegated legislative authority. The Department is carrying out the specific mandate of the Legislature as codified in Section 403.918(2)(b), Florida Statutes. The express language of Section 403.918(2)(b), Florida Statutes, however, does not specify how the Department should exercise its discretion in determining what, if any, mitigation proposal sufficiently offsets unavoidable adverse environmental effects caused by a dredge and fill project.
The Department has offered ample documentary proof of the factors on which it based its decision to accept the mitigation proposal offered by Developers Diversified in this case. Those factors are: that seepage stream systems cannot practically be re-created if destroyed; that no wetland re- creation on the project site is feasible; and that preservation of the essential function of the existing stream system through the vehicle of a perpetual conservation easement over 12 wetland and upland acres represents an environmental benefit which adequately mitigates the elimination of a relatively minor portion of the system. These facts establish that the Department's mitigation decision is neither arbitrary nor capricious.
The Petitioner and Intervenor have argued that the Department's decision to accept the proffered easement is invalid because it is inconsistent with prior Department practice. The fact that the Department has not previously accepted conservation easements on a regular basis as mitigation is in no way fatal to the Department's ability to decide in this case that a preservation agreement satisfies the statutory requirement for mitigation of adverse environmental consequences. That the Department elects to break new non-rule policy ground here means only that the Department is under a duty to substantiate why it has done so with an adequate factual justification.
Anheuser Busch, Inc. v. Department of Business Regulation, 393 So.2d 1177 (Fla. 1st DCA 1981). It is concluded that the Department has done so.
In the final analysis, the Legislature has given the Department discretion to decide whether proposed mitigation measures are adequate. In making this type of decision, the Department is entitled to the same degree of
deference which is judicially accorded to agencies that are interpreting the statutes which they are charged by law with administering. See, e.g., Bayonet Point Regional Medical Center v. Florida Department of Health and Rehabilitative Services, 516 So.2d 995, 1000 (Fla. 1st DCA 1987). The Department's interpretation of Section 403.918(2)(b), Florida Statutes, that Developers Diversified's mitigation proposal was sufficient is clearly a permissible one.
See Bayonet Point Regional Medical Center v. Florida Department of Health and Rehabilitative Services, 516 So.2d at 999; Pan American World Airways v. State of Florida, Public Service Commission, 427 So.2d 716, 719 (Florida 1983); Graham
v. Estuary Properties, 399 So.2d 1374, 1380 (Florida 1980), cert. denied 454 U.S. 1083 (1981).
Developers Diversified asserts that Florida Sierra lacks standing under Section 403.412(5), Florida Statutes, as a "citizen of the state." Florida Sierra is neither a Florida corporation nor an unincorporated association, and is, therefore, not a "citizen of the state" within the meaning of Section 403.412(5), Florida Statutes. Florida Sierra is, in fact, a part of the Sierra Club, Inc., a national organization constituted as a California corporation, and Florida Sierra has no legal existence independent of the
national organization. Consequently, Developers Diversified's Motion To Dismiss Florida Sierra should be granted, and Florida Sierra dismissed as a party to this proceeding.
Developers Diversified seeks to recover costs and attorney fees from CBPG pursuant to Section 120.59(6), Florida Statutes, on the grounds that CBPG participated in this case for an "improper purpose." Considering the totality of the evidence, including the fact that DER originally proposed to deny the subject permit and that DER's subsequent proposal to grant the permit was based on incipient policy, it cannot be concluded that CBPG participated in this case for an "improper purpose." Accordingly, the request for costs and attorney fees is denied.
Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Environmental Regulation enter a final order granting the application of Developers Diversified, Inc., to fill approximately
0.83 acres of wetlands and for the construction and operation of a stormwater treatment and conveyance system in relation to the development of the Crossroads Shopping Center in Marianna, Florida, and issuing permits with appropriate conditions governing the construction of a shopping center and the stormwater collection and treatment system and the execution of conservation easements as included in the Department's Intent to Issue dated June 16, 1988.
DONE AND ENTERED this 14th day of November, 1988, at Tallahassee, Florida.
MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 1988.
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-3355
The following are my specific rulings on all of the proposed findings of fact submitted by all parties.
Findings proposed by Developers Diversified Paragraphs 1, 2, 3, 4, and 5: Accepted.
Paragraph 6: Most rejected as unnecessary historical details.
Paragraphs 7, 8, 9, 10, 11, 12, and 13: Accepted in substance, with some unnecessary details omitted.
Paragraph 14: Covered in introduction; not necessary in findings of fact. Paragraph 15: Accepted.
Paragraph 16: First two sentences covered in introduction; not necessary in findings of fact. The remainder of this paragraph is accepted in substance.
Paragraph 17: Rejected as subordinate and unnecessary details. Paragraphs 18, 19, 20, 21, 22, and 23: Accepted.
Paragraph 24: Accepted in substance with some redundant language omitted.
Paragraph 25: Rejected as subordinate and unnecessary details not fully supported by the weight of the evidence.
Paragraphs 26, 27, and 28: Accepted.
Paragraphs 29 and 30: Accepted in substance with some clarifying additions. Paragraphs 31, 32, and 33: Accepted.
Paragraph 34: Accepted with clarifying addition. Paragraph 35: Accepted.
Paragraphs 36 and 37: Accepted in substance with some unnecessary material omitted.
Paragraphs 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, and 48: Accepted in substance, although findings actually made are more closely modeled on the proposals submitted by the DER.
Paragraphs 49 and 50: Rejected as constituting conclusions of law or argument, rather than proposed findings of fact. (Matters addressed by these paragraphs are discussed in the conclusions of law.)
Paragraph 51. Accepted.
Paragraph 52: Rejected as subordinate and unnecessary details.
Findings proposed by Petitioner
Paragraphs 1, 2, 3, and 4: Accepted in substance with a number of unnecessary details omitted.
Paragraph 5: First sentence accepted. Remainder rejected as not fully supported by persuasive competent substantial evidence and as, in any event, subordinate and unnecessary details.
Paragraph 6: Rejected as subordinate and unnecessary details. Paragraph 7: (There is no paragraph 7.)
Paragraphs 8 and 9: Rejected as subordinate and unnecessary details.
Paragraph 10: Rejected as an unnecessary generality in light of other evidence about this specific system.
Paragraph 11: Accepted.
Paragraph 12: Rejected as irrelevant because not found in this system.
Paragraph 13: Accepted in part; some parts rejected as unnecessary historical background.
Paragraphs 14 and 15: Accepted in substance with some unnecessary details omitted.
Paragraph 16: A few details from this paragraph have been incorporated into the findings, but most have been rejected as unnecessary.
Paragraphs 17 and 18: Accepted in substance with some unnecessary details omitted.
Paragraph 19: Rejected in part as speculative and in part as subordinate and unnecessary details.
Paragraph 20: Rejected as not supported by persuasive competent substantial evidence.
Paragraph 21: First sentence accepted. Second sentence rejected as subordinate and unnecessary details. Third sentence rejected as irrelevant. Fourth sentence accepted.
Paragraph 22: First sentence accepted. Remainder rejected as argument and as subordinate and unnecessary details.
Paragraph 23: Rejected as constituting primarily argument rather than proposed findings of fact.
Paragraphs 24 and 25: Accepted.
Paragraph 26: Rejected as speculation and as not supported by persuasive competent substantial evidence.
Paragraph 27: Rejected as constituting argument or conclusions of law rather than proposed findings of fact.
Paragraphs 28, 29, and 30: Accepted in substance with some unnecessary details omitted.
Paragraph 31: Rejected as constituting for the most part argument rather than proposed findings of fact. To the extent findings are proposed, they are irrelevant or not supported by competent substantial evidence.
Paragraph 32: Accepted in substance.
Paragraphs 33, 34, and 35: Rejected as contrary to the greater weight of the evidence.
Paragraph 36: Accepted with additional clarifying details.
Paragraph 37: Rejected as not supported by persuasive competent substantial evidence.
Paragraph 38: Rejected as redundant. Paragraph 39: Accepted in substance.
Paragraph 40: First sentence accepted. Second sentence rejected as irrelevant. Third sentence rejected as constituting argument rather than proposed findings of fact.
Paragraph 41: Accepted in substance.
Paragraph 42: For the most part rejected as unnecessary details.
Paragraph 43: Rejected in part as constituting unnecessary details and in part as constituting argument rather than proposed findings of fact.
Paragraph 44: Rejected as primarily constituting argument rather than proposed findings of fact.
Paragraph 45: Accepted in substance, with the exception of the last sentence, which suggests an incorrect inference.
Paragraphs 46 and 47: Accepted.
Paragraph 48: Accepted with the exception of the proposition that Florida Sierra acts "independently" of the national organization. (It cannot be truly independent if it is not a separate legal entity.)
Paragraph 49: Accepted in substance, with some unnecessary details omitted.
Findings proposed by DER
Paragraphs 1, 2, 3, 4, 5, 6, 7, and 8: Accepted in substance.
Paragraphs 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18: Accepted.
Paragraphs 19, 20, 21, and 22: Accepted in substance.
Paragraph 23: Accepted in substance, with exception of last two sentences, which are conclusions of law.
Paragraph 24, 25, 26, 27, 28, 29, 30, and 31: Accepted in substance.
Paragraph 32: Rejected as constituting a conclusion of law rather than a finding of fact. This proposed conclusion is discussed in the conclusions of law.
Paragraphs 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, and 44: Accepted.
Paragraph 45: Last sentence accepted. Remainder omitted as constituting unnecessary historical background.
Paragraphs 46, 47, and 48: Accepted.
Paragraph 49: Rejected as redundant and unnecessary. Paragraph 50: Accepted.
Paragraph 51: Accepted in substance, with clarification of ratio figures. (The formula appears to be 12.54 divided by .83 = 15.108433.)
Paragraph 52: Accepted.
Paragraph 53: Rejected as redundant and unnecessary.
COPIES FURNISHED:
Peter B. Belmont, Esquire
511 31st Avenue North
St. Petersburg, Florida 33704
William E. Williams, Esquire Robert D. Fingar, Esquire
J. D. Boone Kuersteiner, Esquire Huey, Guilday, Kuersteiner & Tucker
P. O. Box 1794 Tallahassee, Florida 32302
Steven K. Hall, Esquire Carol Forthman, Esquire Richard Donelan, 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
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
CHIPOLA BASIN PROTECTIVE GROUP, INC.,
Petitioner, FLORIDA CHAPTER SIERRA CLUB,
Intervenor,
v. OGC FILE NO. 88-0587
DOAH CASE NO. 88-3355
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION and DEVELOPERS DIVERSIFIED,
Respondents.
/
FINAL ORDER
On November 14, 1988, a hearing officer from the Division of Administrative Hearings (DOAH) submitted to me and all parties his Recommended Order, a copy of which is attached as Exhibit A. On November 28, Petitioner Chipola Basin Protection Group, Inc., (Chipola) and Intervenor Florida Chapter Sierra Club (Sierra) jointly submitted their exceptions to the Recommended Order, attached as Exhibit B. On November 29, Respondent Developers Diversified (Developers) filed its exception to the Recommended Order, attached as Exhibit
C. On December 9, the Department of Environmental Regulation (Department) filed a response to the exceptions of Petitioner and Intervenor, attached as Exhibit D; and Developers filed its response to those exceptions, attached as Exhibit E, as well as a Motion for Attorneys' Fees, attached as Exhibit F. The matter thereafter came before me as Secretary of the Department for final agency action.
BACKGROUND
This matter arose with the filing on June 30, 1988, of a Petition for Administrative Proceeding by Chipola challenging the Department's intent to issue Developers a permit to conduct dredging and filling in conjunction with the development of a shopping center and associated stormwater facilities in Marianna, Jackson County, Florida. On August 4, Sierra filed a Motion to Intervene under Section 403.412, Florida Statutes, alleging that it had standing as a "citizen of the state" within the meaning of that statute. The Department had originally issued an intent to deny the permit, but changed its position to an intent to issue on June 16, after Developers proposed various project
modifications, including project realignment to reduce the wetlands area impacted from four acres to approximately 0.83 acres, redesign of the stormwater system, and a mitigation plan consisting of a conservation easement over approximately 12.5 acres on or adjacent to the project site. The hearing officer found that construction of the facility would not cause a violation of water quality standards, in that the stormwater system was overdesigned so that is would treat runoff from both the project site and currently untreated Department of Transportation discharges from adjacent highways; and that water quality would in fact improve because Developers would fund an extension of the City of Marianna's sewer system to hook up to the project site, which would in turn force existing area residential and commercial establishments on septic tanks now contributing to water quality problems to hook up to the city System. The hearing officer also found that no threatened or endangered plant or animal species were found on the project site, the project would have no measurable impact on fish and recreational values, there would be no erosion or shoaling, the project would not affect navigation or the flow of water, there would be no impact on marine productivity, no evidence indicated any significant historical or archaeological resources on the project site, and the mitigation proposed to compensate for habitat loss was consistent with existing Department policy. The hearing officer concluded that Developers had provided reasonable assurances that the proposed project would not violate the state water quality standards set forth in Florida Administrative Code Chapter 17-3; that the stormwater system met the design criteria set forth in Florida Administrative Code Chapter 17-25; and that the project without mitigation would be contrary to the public interest because of the wetland loss, but with the mitigation proposed would not be contrary to the public interest and thus would meet the requirements of Section 403.918(2)(b), Florida Statutes. The hearing officer therefore recommended issuance of the permit. The hearing officer also concluded that Sierra should be dismissed as a party because it was not a Florida unincorporated association but legally a part of Sierra Club, Inc., a California corporation, and therefore not a "citizen of the state" authorized to proceed under Section 403.412(5), Florida Statutes. Finally, the hearing officer rejected Developer's request to recover costs and attorneys fees from Chipola pursuant to Section 120.59(6), Florida Statutes, based upon the finding that Chipola did not participate in this case for an "improper purpose."
RULING ON EXCEPTIONS
Prior to ruling on the parties' various exceptions, I must make two general observations about the scope of review of recommended orders allowed to me by law. First, that scope is governed by Section 120.57(1)(b)10., Florida Statutes, which provides in relevant part:
The agency may adopt the recommended order as the final order of the agency. The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the recommended order, but may not reject or modify the findings of fact unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.
Courts have repeatedly rejected attempts by agency heads to overturn findings of fact in recommended orders where such overturning amounts to the substitution of their interpretations of the facts for those of hearing officers. See, e.g., Kibler v. Department of Professional Regulation, 418 So.2d 1018 (Fla. 4th DCA 1982). Rejection of factual findings is only appropriate where a complete review of the record shows that there is no competent substantial evidence to support them -- for example, where there is "an inexplicable failure by the assigned DOAH hearing officer to make definitive factual findings on certain disputed factual issues, coupled with a series of clearly erroneous findings on undisputed factual matters ..." Houle v. Florida Department of Environmental Regulation, OGC File Nos. 87-0326 & 87-0592 (Final Order dated June 13, 1988).
The second observation concerns the requirement that transcripts be submitted with exceptions. Florida Administrative Code Rule 17-103.200 states in relevant part, "Any exception disputing a finding of fact must be accompanied by a complete transcript of the hearing." It has been the consistent policy of myself and my predecessors, as agency heads, to reject exceptions not supported by a complete transcript. See, e.g., Brown et al. v. U.S. Naval Air Station and Florida Department of Environmental Regulation, 9 FALR 5592 (Final Order dated October 1, 1987). This policy has been judicially approved. Booker Creek Preservation, Inc., v. Florida Department of Environmental Regulation, 415 So.2d 750 (Fla. 1st DCA 1982). In this case a transcript was not submitted in conjunction with the filing of exceptions by Chipola and Sierra. In a letter accompanying the exceptions their counsel stated that he was not enclosing a transcript "[b]ased upon my past practice," but "will immediately do so when requested. In this case all parties already had copies of the transcript, as did the hearing officer, who had already submitted his copy to me at the time he submitted to me his Recommended Order. That being the case, it would be an unnecessary burden on the record and would create unnecessary waste and expense to require an additional submission of a copy of a transcript with the exceptions. Therefore, I shall not in this case summarily dismiss these exceptions for failure to comply with the rule. Nonetheless, I shall continue to reject factual exceptions where such transcripts are not readily and immediately available to me. Furthermore, I would caution any party not intending to submit a transcript not to rely on his own "past practice," but to inquire with the Department prior to filing exceptions to make sure the Department has already received a copy of the transcript.
Exceptions of Chipola and Sierra to Findings of Fact
EXCEPTION NO. 1. The first exception is to finding of fact number 15, in which the hearing officer states that Developers would not be precluded from using a substantial portion of the seepage slope systems on site that is not directly impacted by the proposed project and not within the Department's jurisdictional area. Chipola and Sierra suggest that this infers that development could occur without regulatory restrictions from other agencies. I do not agree that the hearing officer's finding suggests such an inference. The more logical inference is that Developers would not be precluded by the Department from future development in the systems. Read in that light the finding correctly sets forth the Department's legal authority in this area and is supported by the record and the hearing officer's other findings of fact. At any rate, Chipola and Sierra present no evidence even to suggest whether or not other development might occur. The exception is therefore rejected.
EXCEPTION NO. 2. The next exception is to finding of fact number 29 to the extent the hearing officer concludes that animals found on the project site would not be significantly affected by the project because the animals are
either located in the conservation area or can forage in areas to be left undisturbed. Chipola and Sierra suggest that the finding is invalid because there was no evidence to show that animals could relocate to adjacent areas. Both the Department and Developers provided competent substantial evidence, however, that there are no threatened an endangered animals on site, and described animal species present as "ubiquitous" and "generalist." (Department Exhibit No. 1, pp. 15-16; Developers Exhibit Nos. 13, p. 8 and 39, pp. 15-17; T- 133-34 and 28) Chipola and Sierra cite no contrary evidence in their exceptions. The exception is therefore rejected.
EXCEPTION NO. 3. The third exception is to that portion of finding of fact number 30 in which the hearing officer stated that the project would have no effect on the flow of water on the site. Chipola and Sierra cite evidence (Department Exhibit 2 at p. #369) indicating that the flow of water "will be interrupted to some degree as a result of the proposed filling ..." As pointed out in the Department's response to this exception, a review of the record indicates that the amount and duration of flow in all of the watercourses on the project site is marked by widely divergent testimony, but there would be some effect on the flow of water. Therefore, to the extent the hearing officer's finding can be interpreted to mean that the project would have no affect whatsoever on the flow of water, I cannot accept that finding.
Whether a project affects the flow of water, however, is not an appropriate consideration by itself in evaluating the public interest test set forth in Section 403.918(2)(a)3., 4 Florida Statutes. The test stated there is "[w]hether the project will adversely affect the ... flow of water." (Emphasis supplied.) Obviously, if the impact is a beneficial one -- for example, restoration of flow in a distressed wet land -- this could weigh the public interest in favor of rather than against the project. Therefore, in order to determine whether the hearing officer's failure to articulate the test accurately should have any bearing on the outcome of the proceeding, I must review his statement in the context of the rest of his Recommended Order. In his appendix the hearing officer specifically rejected the proposed finding paragraph 33 of Chipola and Sierra that the project would adversely affect the flow of water, and this exception does not complain about that rejection.
Furthermore, a finding of no adverse effect can be inferred from paragraph 29 of the Recommended Order, in which the hearing officer makes the unchallenged finding that there would be "minimal opportunities for detrital export;" and even from paragraph 30 itself, which also contains an unchallenged finding, that the area to be filled is relatively small and there would be no harmful erosion or shoaling. Indeed, reading the Recommended Order as a whole it is clear that the hearing officer's intent was to find no adverse impacts from the flow of water, a finding that is supported by competent substantial evidence.
Therefore, I find that the failure by the hearing officer to use the precise legal term in considering this matter has no bearing on the validity of his ultimate conclusion, which was not in any way contradicted by the evidence. Any error is thus harmless and the exception is accordingly rejected.
EXCEPTION NO. 4. Chipola and Sierra next take exception to finding of fact number 33, which concludes that there was no evidence of record to show the existence of any significant historical or archaeological resources on the project site. Chipola and Sierra assert both that Developers failed to prove this and that Chipola and Sierra presented evidence to support a contrary conclusion through the prefiled testimony of Calvin Jones, a state archaeologist with the Department of State. Historical and archaeological considerations play a role in the public interest consideration, at Section 403.918(2)(a)6. Florida Statutes. The unrebutted evidence shows that for an applicant to address this
consideration the Department's general practice is not ordinarily to require an archaeological site survey by the applicant, but only to request comments from the Department of State; and that a request to that Department was made in this case without any response. (T-308-9; Department Exhibit No. 1, p. 17) Furthermore, Mr. Jones' testimony related to the potential for archaeological artifacts being found in the Marianna area, and not to any site specific knowledge or personal observation. (Chipola Exhibit 14) Therefore, given the Department's stated policy as proved and accepted by the hearing officer, along with the lack of any site-specific evidence to the contrary, there was competent substantial evidence to support the hearing officer's finding, and the exception is rejected.
EXCEPTION NO. 5. The next exception is to the first sentence of the hearing officer's finding of fact number 35, in which the hearing officer concludes that there was no evidence in the record indicating that existing or planned projects impact or will impact waters of the state in the area of the project. Chipola and Sierra argue that this finding is contrary to paragraph 16, in which the hearing officer found that the natural hydroperiod of a large portion of the area seepage slope systems was destroyed by the construction of a nearby dam. As both responses to this exception note, and as the record indicates, the dam impacts a different stream system from the one at the project site. The hearing officer discussed the fact that the dam did not impact the project site as a way of describing the environmental value of keeping the mitigation area intact, and not for the purpose of determining whether the mitigation area "could reasonably be expected" to be developed. I do not accept the argument of Chipola and Sierra inferred here that the Department should only consider for mitigation property reasonably expected to be developed under the so-called "cumulative impacts" test of Section 403.919, Florida Statutes. (This is further discussed in my response to the next two exceptions.) The Department must also consider, among other things, the protection of environmentally sensitive .property that it otherwise would not be legally able to protect.
Such is the case here, as the hearing officer correctly observes.
In this exception Chipola and Sierra also object to the hearing officer's statement that the area has never been "the subject of a jurisdictional determination." They counter with the testimony of a former Department employee that she had inspected a nearby site "as a result of a request for a jurisdictional determination by a potential developer..." (Petitioner's Exhibit
5 at p. 8) The parties argue over whether this preliminary investigation should be considered "the subject of a jurisdictional determination," or whether the term should apply only to an investigation in response to the initiation of a formal proceeding for a declaratory statement pursuant to Section 403.914, Florida Statutes. Receipt of a formal petition would trigger consideration under Section 403.919(2), Florida Statutes, whereas an informal request would require review under Section 403.919(3), as discussed further in my response to the next exception. Read in the formal way, the hearing officer's conclusion is clearly supported by competent substantial evidence. Even if the hearing officer were to have made a specific finding that the informal activities by the witness did occur, however, this would not be sufficient to warrant consideration of what she reviewed as having a potential cumulative impact on the project site, absent any evidence that such activities would create a reasonable expectation of subsequent environmental impacts. As I explain in my response to the next exception, consideration of cumulative impacts cannot be based simply upon speculation. The exception is therefore rejected.
EXCEPTION NO. 6. The next exception is to the last sentence of paragraph
35 of the Recommended Order to the extent that its finding that there are no
other specific projects reasonably expected in nearby jurisdictional areas is a finding of "no cumulative impact." In this exception Chipola and Sierra concede the correctness of the hearing officer's evidentiary finding, but object to its characterization as a "no cumulative impact" finding pursuant to Section 403.919, Florida Statutes, by alleging that such a finding must be based upon "a certain degree of speculation as to future development which may occur within waters of the state." The exception is in essence to the legal conclusion drawn from the hearing officer's finding, that cumulative impacts must be based not upon speculation but upon evidence of other projects that are under construction, permitted, the subject of a jurisdictional determination, or reasonably expected in nearby jurisdictional areas. Chipola and Sierra suggest that evidence of lack of land use restrictions and regulations should be a consideration in and of itself.
The so-called "cumulative impact" doctrine was originally developed as policy by the Department to make sure that permit reviewers would consider the environmental effects of issuing a permit where the permit would act as a precedent for similar future permits. The doctrine was approved by the court in Caloosa Property Owners Association, Inc. v. Department of Environmental Regulation, 462 So.2d 523 (Fla. 1st DCA 1985), and codified by the Legislature in Section 403.919 of the Henderson Wetlands Act within Section 403.9819, Florida Statutes, which states the current law as follows:
The department, in deciding whether to grant or deny a permit for an activity which will affect waters, shall consider:
The impact of the project for which the permit is sought.
The impact of projects which are existing or under construction or for which permits or jurisdictional determinations have been sought.
The impact of projects which are under review, approved, or vested pursuant to s. 380.06, or other projects which may reasonably be expected to be located within the jurisdictional extent of waters, based upon land use restrictions and regulations.
The hearing officer's approach in paragraph 35 is clearly consistent with the statute. Both talk in similar terms of projects existing, in process or reasonably expected to be so. This "reasonable expectation" test is the polestar for Department permitting determinations. See, e.g., Section 403.087(1), Florida Statutes; Florida Administrative Code Rule 17-4.070. While evidence of lack of land use restrictions and regulations may have some bearing on what can be developed within a jurisdictional area, that bearing can only be considered in conjunction with evidence of record that such development "may reasonably be expected" to occur, and not upon mere speculation. Here there was no competent substantial evidence to contradict the findings of the hearing officer, which were themselves supported by competent substantial evidence. The exception is therefore rejected.
EXCEPTION NO. 7. The seventh exception is to the hearing officer's statement in finding of fact number 36 that the possibility of future development exists, thereby rendering "especially valuable" the conservation easement proposed. Chipola and Sierra argue this is speculation unsupported by the record. There is record support, however, in the form of testimony from
Department witness Randall Armstrong. (Department Exhibit No. 5, pp. 15-16 & 21)
In this and the previous two exceptions, Chipola and Sierra confuse the proper evidentiary tests for determining whether the Department should accept a conservation easement as mitigation and whether the Department should apply the cumulative impacts test to reject a permit application. The former test is based upon a wide variety of factors, appropriately set forth in the hearing officer's unchallenged findings number 45 through 47, and now incorporated into the Department's recently adopted mitigation rule at Florida Administrative Code Rule 17-12.300 sea. These factors include, among others listed by the hearing officer, the "current degree of threat to the parcel." The statutory basis for incorporating these factors into the permit review process is Section 403.918, Florida Statutes, in which consideration of mitigation is intertwined with application of the public interest criteria set forth in the statute. Based upon his review the hearing officer reached, at paragraph 48, the following conclusion, which is not factually disputed by Chipola and Sierra:
The proposed conservation easements mitigate the adverse effects of the proposed filling by perpetually preserving virtually all of the watershed in the north/south tributary on site and ensuring the continuing functioning of the system in the face of future unrestricted commercial development in the area.
As I discussed in my previous ruling, the scope of review for cumulative impacts is more narrow, and is based upon the existence or reasonable expectation of development, and not upon speculation. Chipola and Sierra appear to be suggesting that the opposite should be the case in other words, that cumulative impacts should be broadly applied to deny permits based even upon the "speculation" of future development, whereas mitigation should be valued only if the applicant can prove that the mitigation property would otherwise be developed. I do not believe the Legislature intended such a restrictive approach towards mitigation or such an expansive approach towards cumulative impacts. The exception is therefore rejected,
EXCEPTION NO. 8. Chipola and Sierra assert that the hearing officer mischaracterized in finding number 40 the Department's mitigation test as set forth in Port Everglades Authority v. Department of Environmental Regulation, 9 FALR 5613 (Final Order dated October 9, 1987). They suggest that the hearing officer mistakenly described project modifications as mitigation. It is true that modification comes before and is distinct from mitigation, but I do not find that the hearing officer suggested otherwise. Rather, the hearing officer properly set forth the Department's approach to mitigation in a manner consistent both with Port Everglades and with the testimony and evidence presented at the hearing. The exception is therefore rejected.
EXCEPTION NO. 9. The next exception says in essence that the hearing officer's finding of fact number 48 is in reality a conclusion of law. The validity of a finding of fact or conclusion of law is based upon its substantive accuracy, and not upon whether it is labelled properly. See, e.g., Hernicz v.
State Department of Professional Regulation, 390 So.2d 194 (Fla. 1st DCA 1980). Chipola and Sierra offer no reason in this exception why the substance of the finding should be rejected and therefore I shall decline to do so.
EXCEPTION NO. 10. Sierra takes exception to the hearing officer's finding number 56 that Sierra is not an unincorporated association, and argues that the finding is a conclusion of law. Once again, the issue is substantive accuracy, not whether a conclusion of law has been mischaracterized as a finding of fact. For reasons set forth in further detail in my response to Sierra's fourth exception to the hearing officer's conclusions of law, the exception is rejected.
EXCEPTION NO. 11. Chipola and Sierra now commence a series of exceptions to the hearing officer's rulings in his appendix to the Recommended Order on various proposed findings of fact. The first of these exceptions is that the hearing officer rejected as "unnecessary detail" their proposed finding number
14 providing in part that the east-west tributary branch proposed to be filled provides 10 to 15 percent of the flow in the main stream. As I have previously stated in response to the third exception, there is ample evidence to support a finding that the project will have no adverse impact upon the flow of water, and the mitigation proposed further supports the ultimate conclusion of the hearing officer. The exception therefore has no bearing on the validity of the hearing officer's recommendation, and is rejected.
EXCEPTION NO. 12. The next exception is to the hearing officer's characterization of proposed finding number 19 of Chipola and Sierra as being speculative, subordinate and unnecessary. I concur with this characterization. The proposed finding states that macroinvertebrate species "could be expected to be found," and the diversity would be "dependent on a variety of factors ..." The proposed finding offers no specifics as to what type species would be found under what circumstances, and so it is entirely within the hearing officer's prerogative to respond as he did. The exception is therefore rejected.
EXCEPTION NO. 13. Chipola and Sierra take exception to the hearing officer's rejection of both sentences in proposed finding number 20 as not being supported by competent substantial evidence. The first sentence sets forth the percentage of wetlands that would be lost. I concur with the Department's response to the exception that the calculation of Chipola and Sierra is inaccurate based upon the facts presented at the hearing. The second and last sentence states that the fill would result in loss of "most" of the seep headwaters to the unnamed tributary. There is, however, competent substantial evidence to support the finding that the integrity of the seepage system would not be significantly impacted, as indicated, for example, by testimony from the Department's soils expert, Dar-Guam Cheng. (Department's Exhibit No. 3, pp. 8-
9) The critical issue for me to consider in reviewing exceptions is whether there is competent substantial evidence to support the hearing officer's recommendation, and not whether there may be competent substantial evidence to support a contrary recommendation. The exception is therefore rejected.
EXCEPTION NO. 14. This exception reiterates and expands upon previous exceptions relating to cumulative impact. Based upon my previous analysis in my response to exceptions five through seven, this exception is rejected.
EXCEPTION NO. 15. Chipola and Sierra next take exception to the hearing officer's rejection of their proposed finding number 31 regarding the failure of the permit applicant to establish that the proposed project will not result in violation of the biological integrity standard. Florida Administrative Code Rule 17-3.121(7) establishes the biological integrity standard for Class III waters based upon a reduction to no less than 75 percent of established background levels as measured by the Shannon-Weaver diversity index. The evidence that Chipola and Sierra cite in support of their findings does not
quantify any reduction, but only states that there "could be" a reduction (T-
282) and that the project "may affect the macroinvertebrates and other species that one would expect to find (Petitioner's Exhibit 5 at p. 18) While Developers had the burden of establishing that the project would reasonably be expected to meet water quality standards, the hearing officer made uncontroverted findings that the project would improve water quality. (Finding of Fact numbers 23, 26, & 27) These findings were established by competent substantial evidence. (E.g., Developers Exhibits 13, p. 11, & 39, p. 17) Developers having met its initial burden, the burden then shifted to Chipola and Sierra to place at issue that the project would not reasonably be likely to meet the biological integrity standard. See Florida Department of Transportation v.
J.W.C. Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Jerabek v. City of Cape Coral and Department of Environmental Regulation, 9 FALR 5429 (Final Order dated September 21, 1987). Since Chipola and Sierra presented speculation and not competent substantial evidence to support a shift in this burden of proof back to Developers, the hearing officer's rejection of this proposed finding was appropriate. The exception is therefore rejected.
EXCEPTION NO. 16. Chipola and Sierra object to the hearing officer's rejection of their proposed finding paragraph 42, that it had not been the Department's practice prior to this permit to accept conservation easements as mitigation without also including wetlands creation or enhancement. They assert that the only previous permit in which a conservation easement was accepted by itself represented an exception to the Department's normal practice. They further suggest that the proposed finding is relevant to establish Department practice for determining compliance with Florida Administrative Code Rule 17-
103.160. That rule provides as follows:
To the extent possible and consistent with the public interest, the Department approves and denies applications for permits and certifications on a uniform and consistent basis. Final Department actions on applications for permits and certifications shall be consistent with prior Department actions, unless deviation therefrom is explained by the Department in writing or the hearing officer who submits a recommended order to the Department for final agency action in accordance with Section 120.57, Florida Statutes.
In this case, both the Department and the hearing officer have explained in writing any supposed "deviation" from existing policy. The Department's most recent written policy (Department Exhibit 6) authorizes the conveyance of property as wetlands mitigation under the special circumstances set forth in this policy, and the testimony supported the policy's application here. (Department Exhibit 3, pp. 5, 6) The hearing officer made extensive findings, supported by competent substantial evidence, on the Department's current policy and its application to this case. (Findings of Fact numbers 37-50) The hearing officer properly applied these facts to his Conclusion of Law number 15, where he held that the Department had adequately substantiated application of its policy to this case. The exception is therefore rejected.
EXCEPTION NO. 17. The next exception is to the hearing officer's rejection of proposed finding paragraph 43 of Chipola and Sierra, that no credible evidence was presented to establish that development would occur on the
remaining portions of the unnamed tributary not subject to be filled and the upland buffer around it. Chipola and Sierra "suggest" that before a conservation easement can be determined an environmental benefit, it must be established that the function of the land affected "could be expected to be lost." The hearing officer rejected the proposed finding as constituting unnecessary details and as constituting argument rather than a finding of fact. I agree. Furthermore, as I stated earlier in response to exceptions five through seven, Chipola and Sierra have incorrectly characterized the tests both for valuation of mitigation and consideration of cumulative impacts. As I have already noted, the hearing officer's findings and conclusions on mitigation are based upon competent substantial evidence and are consistent with the law. The exception is therefore rejected.
EXCEPTION NO. 18. The last factual exception is to the failure of the hearing officer to accept proposed finding number 44 by Chipola and Sierra regarding the development potential of the remaining portions of the unnamed tributary on the development site. This exception is essentially a reiteration of the argument contained in the previous exception, and is rejected for the reasons set forth in my response to it.
Exceptions of Chipola and Sierra to Conclusions of Law EXCEPTION NO. 1. Chipola and Sierra first take exception to the
classification of the unnamed tributary on site as a Class III water rather than
as an Outstanding Florida Water (OFW). They argue that the classification of the Chipola River as an OFW includes all tributaries, including this one, because the Chipola tributaries are not Specifically excluded, as they are for some OFWs. I concur with the hearing officer's analysis in paragraph four of his Conclusions of Law that the express language of Florida Administrative Code Rule 17-3.041(4)(i) clearly indicates that any tributaries to special waters intended to be designated as OFWs must be identified in the rule. His analysis comports with agency interpretation and practice, and was therefore properly done. See Goldring v, Department of Environmental Regulation, 477 So.2d 532 (Fla. 1985). This exception is therefore rejected.
EXCEPTION NO. 2. This exception is to the hearing officer's finding of reasonable assurances that water quality standards will not be violated. The exception is essentially a reiteration of the fifteenth factual exception of Chipola and Sierra. The exception is rejected for the reasons set forth in my response to that exception.
EXCEPTION NO. 3. Chipola and Sierra take exception to the legal conclusion that the proffered conservation easement would not be contrary to the public interest. To the extent this exception makes factual arguments, they are rejected for the reasons set forth in my response to exception number 16. The gist of the legal position in this exception is that the Henderson Wetlands Protection Act does not allow for any reduction in the total amount of wetlands in the state, that the Department's policy in this case of allowing as mitigation the promise not to develop other wetlands would be a "net loss of wetlands ... which the legislature rejected with its adoption of the Henderson Wetlands Act," and "the fact that on site creation or enhancement mitigation projects may not be feasible (is) not relevant to the issue of whether the Department abuses its discretion in issuing the disputed permit."
I cannot concur with this reading of the Henderson Act. The Act's directive for considering mitigation is contained in Section 403.918(2)(b),
Florida Statutes. The "no net loss" concept does not appear anywhere in the statute. The key operative words are as follows:
If the applicant is unable to otherwise meet the (public interest) criteria set forth in this subsection, the department, in deciding to grant or deny a permit, shall consider measures proposed by or acceptable to the applicant to mitigate adverse effects which may be caused by the project...
This language places the Department under a legal duty to consider mitigation when the public interest criteria cannot otherwise be met. Were the Department to accept the Chipola and Sierra argument, then no mitigation would ever be allowed where on-site wetland creation or enhancement is physically impossible. This absolute prohibition is not required by statute. While I recognize that there may be some environmentally unsound projects that no amount of mitigation can rescue, the criteria for such projects is not dependent on an absolute "no net loss" standard, but rather on site specific considerations.
The Department's decision here was based upon the balancing of the amount of wetlands lost to the gain of perpetual protection over a much larger and more significant amount of property, which included not just wetlands but a significant amount of nonjurisdictional seepage slopes crucial to the functioning of the main north-south tributary on site, much of which would otherwise not be subject to environmental protection by the Department. The mitigation was further considered by the Department in light of project enhancements that would result in improved area water quality, through overdesigned stormwater controls and the elimination of septic tank discharges. In summary, the consideration of mitigation in this case constitutes not a change in or deviation from established Department policy, but an application of it that the hearing officer found to be supported by competent substantial evidence. The exception is therefore rejected.
EXCEPTION NO. 4. Sierra takes exception to the hearing officer's conclusion that it lacks standing in this proceeding. While there is no dispute that Sierra Club, Inc., a California corporation, lacks standing under Section 403.412, Florida Statutes, because it is not a Florida citizen, Sierra argues that the Florida Chapter should have standing as a Florida unincorporated association. While I and my predecessor have previously held that a Florida unincorporated association may have standing under Section 403.412, see West Volusia Conservancy, et al. v. Bayou Arbors, Inc., and Department of Environmental Regulation, 9 FALR 5824, (Final Order dated October 30, 1987), and cases cited therein, the existence of such an unincorporated association is a factual matter subject to proof. The question here is whether Sierra has proven that it is a Florida unincorporated association that exists as an entity separate from the Sierra Club. The answer is that the hearing officer made the factual finding, supported by competent substantial evidence, that Sierra failed to prove its independent existence as a Florida unincorporated association.
In this exception Sierra also complains that the hearing officer improperly denied its motion to amend it pleadings to establish standing. Given that the question of Sierra's standing is moot in light of the decision on the merits in this proceeding, I find it unnecessary to review this matter. I do not see how such amendment would otherwise have affected the outcome of these proceedings, however, since the amendment was addressed to standing and not to the substantive issues in the case.
I must reiterate that the question of standing here is one of proof. This Final Order does not necessarily set the precedent that the Sierra can under no circumstances establish itself as a Florida unincorporated association, but simply finds that Sierra did not prove such an independent existence in this case. The exception is rejected.
EXCEPTION NO. 5. Chipola and Sierra next take exception to the hearing officer's failure to adopt their proposed legal conclusion that the Department's June 20, 1988, mitigation policy is inapplicable to the pending permit application. As I have previously stated, the law makes clear an agency's authority to change policy, as long as the current policy is properly explicated. The hearing officer found that to be true in this case, and the exception is therefore rejected.
EXCEPTION NO. 6. The last exception of Chipola and Sierra is to the hearing officer's rejection of their proposed legal conclusion that the applicant failed to prove that the permit should not be denied because of adverse cumulative impacts. The exception is essentially a reiteration of their factual exception numbers five through seven, and is rejected for the reasons given in my response to those exceptions.
Exception of Developers
Developers filed one exception, in which it objected to the hearing officer's failure to recommend that it be awarded attorneys fees pursuant to Section 120.59(6), Florida Statutes, on the grounds that Chipola participated in this proceeding for an improper purpose. My careful reading of that subsection indicates to me that it does not authorize an agency head to order an award of attorneys fees where the hearing officer had already made the express finding of no improper purpose. While there may be some limited agency review allowed by the statute, the review cannot result in the agency head's making an affirmative award in a final order contrary to a hearing officer's recommendation. This exception is therefore rejected.
RULING ON MOTION FOR ATTORNEYS FEES
On December 9, Developers moved pursuant to Section 120.57(1)(b)5., Florida Statutes, for the imposition of attorneys fees for fees incurred in responding to the exceptions of Chipola and Sierra to the Recommended Order. Developers alleges that the exceptions were improperly filed because they were not accompanied by a transcript, and that the exceptions were without merit. I have already addressed the transcript issue in the introductory remarks to my rulings on the exceptions. At any rate, I do not read this subsection as authorizing me, as agency head, to award attorneys fees. It is clear that the subsection applies only to proceedings before hearing officers; and that the sanctions contained therein can only be imposed by hearing officers. Since I am reviewing this matter in my capacity as agency head pursuant to Sections 120.59 and 120.60, Florida Statutes, and not as a hearing officer, the law is clearly inapplicable to me. The motion is therefore rejected.
THEREFORE, it is ORDERED:
The findings of fact and conclusions of law contained in the hearing officer's Recommended Order are approved in their entirety, except as clarified herein.
The Department shall issue permit #32-142527-9 to Developers Diversified, Inc., in accordance with the conditions as set forth in the Department's Intent to Issue dated June 16, 1988.
Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the clerk of the Department.
DONE AND ORDERED this 30th day of December, 1988, in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
DALE TWACHTMANN
Secretary
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Telephone: (904)488-4805
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing FINAL ORDER has been furnished by U.S. Mail to PETER S. BELMONT, 511 31st Avenue North, St.
Petersburg, Florida 33704; and WILLIAM E. WILLIAMS and ROBERT D. FINGAR, 215 South Monroe Street, 510 First Florida Bank Building, Tallahassee, Florida 32302; and by hand delivery to MICHAEL M. PARRISH, Hearing Officer, Division of Administrative Hearings, 2009 Apalachee Parkway, Oakland Building, Tallahassee, Florida 32399-1550; and STEVEN K. HALL, Assistant General Counsel, 2600 Blair Stone Road, Tallahassee, Florida, 32399-2400, on this day of December, 1988.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
DANIEL H. THOMPSON
General Counsel
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
(904) 488-9730
| Issue Date | Proceedings |
|---|---|
| Nov. 14, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 20, 1988 | Agency Final Order | |
| Nov. 14, 1988 | Recommended Order | Application for dredge and fill permit should be granted; loss of wetlands was sufficiently mitigated; attorney fee award not warranted |
