STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
THE CONSERVANCY, INC., and )
FLORIDA AUDUBON SOCIETY, )
)
Petitioners, )
)
vs. ) CASE NO. 88-4760
)
A. VERNON ALLEN BUILDERS, INC., ) and STATE OF FLORIDA DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Veronica E. Donnelly, held a formal hearing in the above-styled case on April 3-5, 19-21, and May 3, 1989, in Naples, Florida. The hearing was completed by telephone conference on May 12, 1989.
APPEARANCES
For Petitioners: Joseph Z. Fleming, Esquire
620 Ingraham Building
25 Southeast Second Avenue Miami, Florida 33131
For Respondent/ Terry E. Lewis, Esquire A.Vernon Builders:Kevin S. Hennessy, Esquire
MESSER VICKERS CAPARELLO FRENCH AND MADSEN
Suite 301
2000 Palm Beach Lakes Boulevard West Palm Beach, Florida 33409
For Respondent/ Richard Grosso, Esquire DER Assistant General Counsel
Twin Towers Office Building 2600 Blairstone Road
Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUES
Should Respondent Department of Environmental Regulation (DER), grant the applicant, Respondent A. Vernon Allen Builders, Inc. (Builders), a dredge and fill permit pursuant to the Notice of Intent to Issue filed August 31, 1988, in File No. 111486645?
PRELIMINARY STATEMENT
The Petitioners, The Conservancy, Inc. (Conservancy) and Florida Audubon Society (Audubon), filed a request for a formal administrative hearing to contest DER's preliminary decision to issue Builders a dredge and fill permit to excavate and redeposit approximately 1,155 cubic yards of material within Gordon Pass. The pass is a water channel located between the mainland portion of the City of Naples and Keewaydin Island (Key Island). The purpose of the dredge and fill activity is to embed a subaqueous sewer pipeline and an additional cable duct bank under the pass between the mainland and the island.
In the Amended Petition filed by the Petitioners, it is alleged that the proposed dredge and fill activity would cause great damage to the water quality and the aquatic habitat in the area. Marine life, including endangered species, would be adversely affected. Therefore, the project is contrary to the public interest and the permit should be denied.
It is further alleged: that the proposed pipeline is unnecessary and could be avoided; that the sewer pipeline is inextricably bound to the proposed development of Key Island, a coastal barrier island; and that the issuance of the permit will cause a chain of environmentally destructive events. Upon completion of discovery, Petitioners challenged whether DER has properly considered the impacts of the project under review.
Pursuant to Motions to Strike Amended Petition and Motions in Limine, the Hearing Officer limited the issues in the hearing to a review and consideration of the criteria for granting or denying permits set forth in Section 403.918, Florida Statutes, as it relates to the placement of the sewer pipeline. The cable duct bank was removed from controversy in the mutual Stipulation filed by all parties and Petitioners' Unilateral Response to the Hearing Officer's request for isolation of the issues prior to hearing. Comprehensive planning issues, expected environmental harm from development of Key Island, and additional permit requirements for the operation of the embedded pipe as a sewer force main were not considered probative or relevant in this permit review proceeding. The Petitioners' argument that the case of del Campo v. Department of Environmental Regulation, 452 So.2d 1004 (Fla. 1st DCA 1984), requires that future development of the island be addressed in these proceedings was rejected by the Hearing Officer.
In del Campo, supra, the court stated that the Department (DER) should not grant a permit for consideration of a bridge to an undeveloped, unconnected island without first examining whether the island could be developed in an environmentally sound manner. This case is factually distinguishable from del Campo in that the portion of the island the pipeline seeks to serve is already developed. The "waste of resources" which concerned the court in del Campo is not present. It was represented by the applicant Builders in motion hearings and in Responses to Requests for Admissions that the dredge and fill permit for the pipeline is sought whether or not additional development occurs on Key Island.
In Chapter 403, Florida Statutes, the Legislature specifically set forth the criteria to be considered by DER in its review of an application for a dredge and fill permit. The statutes, the small size of the proposed project, and the representation by the applicant that the pipeline permit is not necessarily related to future development, required that the evidentiary and review limitations be imposed. However, the Petitioners were allowed to proffer
all exhibits and testimony they believed was pertinent to their theory that this permit is inextricably bound to the proposed development of Key Island.
During the hearing, Respondent Builders presented seven witnesses and filed twenty-two exhibits. Exhibits designated as Builder's #1 through #15 were admitted into evidence. Builders was allowed to substitute Builders' Exhibit #3A for Builders' Exhibit #3. Builders' Exhibits #17 and #22 were admitted.
The Petitioner was given the opportunity post hearing to review the documents in Builders' Exhibit #22. If such documents were incomplete or in redacted form, Petitioners were allowed to offer into evidence the full publication. In response to the order allowing completeness, Petitioners filed a packet of information referred to as Petitioners' Exhibit #22. (Composite) Based upon the Hearing Officer's ruling at hearing, only the publications which elaborate on the Executive Summary filed by Builders as Builders' Exhibit #22 were admitted into evidence from the composite.
Three of the witnesses called by Builders were jointly presented by DER during their testimony. No exhibits were filed by DER.
The Petitioner presented seven witnesses and filed twenty-two exhibits.
Petitioner's Exhibits #1 through #4 were proffered for the appellate court and were not accepted by the Hearing Officer for purposes of this proceeding based upon the previous ruling which limited the scope of the hearing. Exhibit #5 was admitted for limited purposes. Exhibit #6 was proffered. Exhibit #7 was admitted. Composite Exhibit #8 was admitted as to 8C, 8E and 8F. The rest of the composite (8A, 8B, 8D) was proffered. Exhibits #9 through #18 were admitted. Exhibits #19 and #20 were proffered. Petitioners' Exhibit #21 was admitted. Petitioner's Composite Exhibit #22 was admitted as to 22A, 22C and 22D. The Hearing Officer submitted one document for clarification purposes which was marked as Hearing Officer Exhibit #1.
A transcript of the proceeding was filed on July 20, 1989. The parties were granted additional time to file proposed findings of fact beyond the ten- day filing requirements of Rule 28-5.402, Florida Administrative Code. Rulings on proposed findings submitted by all parties are in the Appendix to the Recommended Order.
FINDINGS OF FACT
Respondent Builders, the dredge and fill permit applicant, is not the owner of record of the privately-owned property on Key Island that the proposed sewer pipeline is intended to service. John Remington, the President of A. Vernon Allen Builders, Inc., holds an option on the property. The permit application represents to DER that the requisite property interest will be transferred to the applicant prior to the undertaking of the proposed dredge and fill work.
Respondent DER is the regulatory agency with permitting jurisdiction over the proposed dredge and fill project within Gordon Pass.
The Petitioners, Conservancy and Audubon, are conservation organizations. Both Petitioners have real property interests in the area known as Rookery Bay National Estuarine Sanctuary. Key Island is part of the coastal barrier resources system that creates a number of estuaries within the area. Gordon Pass is one of the two access channels to the Gulf of Mexico from Rookery Bay. Petitioners' members benefit from the quality of the waters within Gordon
Pass. These members enjoy the waters for scientific, educational, and recreational purposes.
Proposed Project
A dredge and fill permit is sought by Respondent Builders so that a sewer pipeline crossing from Key Island to Naples can be embedded under Gordon Pass. The permit application proposes to place a four-inch ductile iron sewer pipeline and three, four-inch conduits as a duck bank in a 650' x 12' x 4' trench beneath the pass. The embedded pipe will have thirty-six inches of cover to protect it under the pass. It is anticipated that the trench will be filled with the material excavated to form the trench. To create the trench, approximately 1,155 cubic yards of fill material will be dredged and repositioned over the pipeline. The pass bottom is to be returned to the contour existing prior to the excavation work.
Subsequent permits must be obtained by Respondent Builders in order to use the proposed pipeline as a sewer pipeline. Approval of the dredge and fill project within the pass does not warrant that the additional permits will be granted by DER. The specific design features of the sewer pipeline will be required to meet the DER's standards relating to domestic waste collection systems at the time Respondent Builders applies for a permit to construct a collection system.
At this stage of the overall permitting process, DER has determined that the previously developed portion of Key Island could possibly be redeveloped or revamped in an environmentally sound manner. It is suggested in the Notice of Intent to Issue that Respondent Builders receive approval of all of the other necessary permits prior to constructing the pipeline. The proposed pipeline may serve the existing development as well as possible future development.
The Project Locale
Gordon Pass, the body of water the sewer pipeline will cross, is located in Collier County, Florida. The pass is between the mainland and Key Island, a coastal barrier island. Both sides of the pass have been armored. A wooden bulkhead runs along the northern side of the pass (mainland) and a rip- rap bulkhead has been placed along the southern (island) side. The pass connects the Gulf of Mexico and various bays which are located between the mainland and the barrier island system along this portion of the Gulf Coast. Admiralty Bay, the first bay east of the pass, is surrounded to the east by developed land. The south side of the bay is the northeastern portion of Key Island. The northern tip of Key Island, which is the southern shore of the pass, contains development. This development is a vacation resort within the city limits of Naples. The city boundaries extend from the mainland to the resort portion of the island. The resort, the Keewaydin Club, is comprised of several cottages, a clubhouse, restaurant, pool, marina, and tennis courts. The rest of the island is outside of the resort boundaries and is not subject to development.
The surface width of the pass between the bulkheads where the sewer pipeline is to be routed is approximately 500 feet. Beneath the surface, the water is very shallow to the north. The mainland gradually slopes downward to the south, and the pass deepens to a low water depth of approximately 24 feet below the surface waters on the northern side of Key Island. The United States Army Corps. of Engineers routinely dredges the bottom of the pass on the
northern side of the island within a 150 foot wide area, ten feet below the water surface at the mean low water mark. The purpose of the dredging is to keep the pass navigable.
Gordon Pass has several subaqueous crossings which have already been embedded below its bottom surface. The City of Naples has installed a six-inch diameter water main between the mainland and Key Island under the pass.
Electric cables, a telephone cable, and a television cable have also been buried in the same general vicinity as the proposed project.
The waters of Gordon Pass are designated as Class II waters for shellfish propagation and harvesting. However, shellfish harvesting is not approved in the area. It is unlikely that shell fish harvesting will be approved because of the development along Admiralty Bay and the location of Naples sewage plant at the north end of Naples Bay. Naples Bay is a connecting waterbody to Admiralty Bay further eastward from the pass.
The subbottom of the pass along the proposed corridor for the sewer pipeline consists of unconsolidated sand and shell fragments at the four locations where jet probes were completed. If the probes are indicative of the soils of the subbottom, placement of the proposed pipe could be completed by mechanical means. If the pipeline has to be embedded in rock beyond the twenty- four foot depth, it is anticipated that the rock could be punched by mechanical means.
Impacts on Water Quality
The impacts that the project may have upon the water quality within the pass fall into two categories: a) the impacts which may occur during construction, and b) the impacts which may occur after the pipeline has been embedded and is being used to transport sewage from Key Island to the mainland.
During construction, Respondent Builders is to dredge the pass by mechanical means at slack tides. Turbidity screens are to be used to limit the area of increased turbidity.
Construction techniques, such as leaving dredged materials underwater, to one side of the excavated trench, rather than lifting it out of the water onto a barge, could further reduce turbidity.
The pass bottom contains little silt or organic matter. Because the material is mostly coarse sand and shell, the dredging will have minimal impact on water quality beyond the temporary turbidity from construction.
Reasonable assurances have been provided that the pipeline will not affect water quality once it is embedded. The pipe to be used for the construction of the pipeline is of the highest quality available, and it will have a corrosion resistant coating. To assure that the pipeline is not harmed by boaters anchoring boats within the pass, signs will be posted on both sides of the corridor, warning boaters of the pipeline and prohibiting anchoring in the area.
The protection of water quality from contamination due to a break or leak in the pipeline is further assured by the permit requirement of a pressure gauge to monitor the system and shut-off valves on each side of the pass to limit escape of effluent if the pipeline is damaged.
Public Interest Criteria
Public health, safety, welfare, or property of others
There is no convincing evidence under the required standards that the proposed project will adversely affect the public health, safety, welfare or the property of others. The project will facilitate a sewage system that transports sewage from the developed portion of Key Island to a central collection and treatment facility on the mainland. The use of this system would eliminate the potential for groundwater contamination that exists with the septic tank system currently in use on the island.
Fish and Wildlife
Gopher tortoises, which are federally protected, nest and lay eggs on Key Island. As part of their migratory path, they are brought to the island by the Gulf tides and currents. There was no evidence presented to demonstrate that the tortoises inhabit Gordon Pass, or the shores of Key Island which is the southern shore of the pass.
Snook and Redfish spawn within the pass. Snook spawn in the pass from June through August. The Redfish spawn in the area from August to October.
Although the benthic communities in the pass will be affected by the dredging, it is expected that the communities will recolonize as they have during the past dredgings. The water quality in the area and the pass conditions reasonably promote the possibility of recolonization. The construction techniques previously mentioned would also limit some of the harms to the benthic communities if they were utilized during dredging.
Affects on navigation, flow of water, harmful erosion or shoaling
While the project will affect the use of the channel by others for navigational purposes during construction, it is anticipated that the interference will occur over a short, concentrated period of time. The boaters who use the channel will still have access to the interconnecting bays behind the pass through Marco Pass at the south end of Key Island.
Construction can be staged to conduct traffic around areas of dredge and fill activity.
Because the pass is to be returned to its prior configuration, there should be no permanent impact on the flow of water, nor any harmful erosion or shoaling.
Fishing, Recreational Values, Marine Productivity in the project area
The project will not adversely affect the fishing, recreational value, or marine productivity, except for the Redfish nursery. The Redfish nursery has not been protected under the preliminary permit approval.
Nature of the project
The project will be permanent in nature. The reasonably anticipated adverse affects of the project on the pass will be temporary and will take place during the construction and embedding of the pipeline.
Adverse affect or enhancement
There was no evidence provided to demonstrate how the pipeline would affect significant historical or archaeological resources.
Current condition and relative value of functions
One of the functions of the pass is to act as a nursery to various kinds of fish. Snook and Redfish use the pass as a nursery. The proposed activity could affect the development of the young fish.
The possibility of contamination of Key Island groundwater from septic tanks could be eliminated by the use of a sewer system.
In the dredge and fill application appraisal and notice of intent to issue, DER considered and balanced all of the required statutory criteria to determine that the project is not contrary to the public interest or applicable water quality standards.
All of the areas of controversy within the Division of Administrative Hearings' jurisdiction have been sufficiently met either by the reasonable assurances of Respondent Builders, or the evidence that additional conditions can be required by DER which will provide reasonable assurances.
Based upon the evidence presented, it is factually concluded that reasonable assurances have been made to prevent the harms anticipated by Petitioners from occurring, based upon the dredging and repositioning of 1,155 cubic yards of material within Gordon Pass.
CONCLUSIONS OF LAW
The Division of Administrative Hearings is not authorized to review any of the matters set forth in the Amended Petition which involve matters outside of the established criteria. The issuance of the permit must be based solely on compliance with the applicable statutory criteria and administrative rules regarding dredge and fill permits. Council of the Lower Keys v. Charley Toppino and Sons, Inc., 429 So.2d 67 (Fla. 3d DCA 1985). The Division has jurisdiction over the parties and all other matters set forth in the Amended Petition pursuant to Section 120.57(1), Florida Statutes.
The Petitioners have standing to dispute the appropriateness of the Intent to Issue because of their real property interests within the area and the membership's use and benefits from the waters of Gordon Pass. Matter of Surface Water Management Permit, 515 So.2d 1288 (Fla. 4th DCA 1987).
The State of Florida Department of Environmental Regulation has regulatory authority and permitting jurisdiction pursuant to Sections 403.087, 403.813 and 403.913, Florida Statutes, and Rules 17-3, 17-4 and 17-12, Florida Administrative Code.
When a petition is filed which sets forth areas of controversy regarding a permit, a hearing de novo on the permit application takes place before a hearing officer. The applicant is then required to make a preliminary showing of "reasonable assurances" to demonstrate entitlement to the permit. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981).
During the presentation at hearing by the applicant, it was determined that some of the original permit drawings were not accurate as to the water depths involved in the proposed dredging project. Instead of submitting a bathymetric profile and subbottom survey to show the existing profile at the time the application was filed, the applicant and DER relied on the historical profiles of the pass that were used when the water pipeline was embedded in the pass by the City of Naples between 1973 and 1977. In light of the size of the proposed dredge and fill project, the familiarity of the DER and the retained engineering firm with prior successful subaqueous crossings to Key Island within Gordon Pass, the original decision was not unreasonable. A recent bathymetric profile and subbottom survey was presented at hearing, and substantially supported the DER's decision to file the Intent to Issue. This type of minor modification is clearly anticipated and authorized by the review process. Hopwood v. DER, 402 So.2d 1296 (Fla. 1st DCA 1981).
The Petitioners challenge the revisions made at hearing based upon the recent profile and survey on constitutional grounds. Although the Hearing Officer cannot rule on this matter, the ruling that experts could remain in the hearing room during the presentation of testimony, and the four week hiatus from the hearing of evidence provided the Petitioners with the opportunity to respond to the changes resulting from the more accurate data.
Of particular concern to the Petitioners at hearing was the indirect or secondary impacts from the proposed project. In the context of this dredge and fill application, the secondary impacts would be any impact to DER jurisdictional waters not caused by the actual dredging and filling necessary to embed the sewer pipeline. In this case, DER considered the project's secondary impacts by requiring the applicant to have emergency shut-off valves on each side of the pass to limit potential environmental harm from the use of the pipeline within a sewage transfer system. Santa Fe Lake Dweller's Association, Inc. v. Department of Environmental Regulation, 9 FALR 2603 (1987); Section 403.919, Florida Statutes. A total review of the proposed development in this proceeding is not allowed by the statutory grant of authority nor it is relevant. The Petitioners' concerns regarding construction activities beyond this permit is not before the agency by way of any permit application and is therefore not ripe for DER review. DER has no power to require the applicant to submit all permits for review at one time. See, Caloosa Property Owner's Association, Inc. v. Department of Environmental Regulation, 462 So.2d 523 (Fla. 1st DCA 1985).
At hearing, counsel for DER recanted his prior representation that del Campo v. Department of Environmental Regulation, 452 So.2d 1004 (Fla. 1st DCA 1984), does not apply to this case. It is contended that once the agency determined that it would not be impossible to develop this island in an environmentally sound manner, the del Campo requirements were met. The interpretation of del Campo suggested is rejected in that it places an unprecedented burden on an applicant which is beyond the statutory and rule criteria set forth by law. As stated by the Supreme Court of Florida in Edgerton v. International Company, 89 So.2d 488 (Fla. 1956):
dministrative authorities are creatures of statute and have only such powers as the statute confers on them. Their powers must be exercised in accordance with the statute bestowing such powers, and they can only
act in the mode described by statute.
The evidence adduced at hearing revealed that DER had not contemplated the use of the pass by spawning Redfish in the months of August through to October. To protect these fish and to reduce the proposed project affects within the pass, construction should not occur during the Redfish spawning season.
A concern was also raised during hearing by Petitioners that the applicants' failure to sample the subbottom soil at the twenty-four foot depth could mean that the pipe might be embedded in rock at this location. To assuage the possibility of environmental harm from digging into rock, the Notice of Intent should specify that any rock encountered in the pass in the pipeline corridor should be punctured by mechanical means.
As the harm to benthic communities could be reduced by construction techniques that do not lift dredged materials out of the water, the requirement that such techniques be used could be implemented by DER. The same techniques could further limit the water turbidity which will take place during construction. However, the evidence presented was not sufficient to establish that failure to use such construction techniques would cause the project to be contrary to the public interest.
A review and consideration of the applicable water quality standards and the criteria set forth in Section 403.918, Florida Statutes reveal that the public and private interests have been considered and balanced in this case. Reasonable assurances have been provided that the harms anticipated by Petitioners from this project will be prevented or have been balanced by DER. The project is not contrary to the public interest once the Redfish spawning waters are protected and the issue of possible rock within the proposed corridor is addressed by DER and the applicant.
Based upon the foregoing, it is RECOMMENDED:
That a Final Order be entered approving Respondent Builders' dredge and fill permit in DER File No. 111486645 filed August 31, 1988, subject to the following modifications:
Specific condition number 6 should be amended to read:
6. Dredging shall be done by mechanical means (no hydraulic dredging) as there does not appear to be an appropriate area for discharge retention available. No dredging shall be allowed during the weeks of July 1st through September 30th of any year. If rock is encountered during the dredging activity along the proposed pipeline corridor, the rock is to be punctured by mechanical means.
DONE and ENTERED this 7th day of December, 1989, in Tallahassee, Leon County, Florida.
VERONICA E. DONNELLY
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904)488-9675
Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1989.
APPENDIX TO RECOMMENDED ORDER
Rulings on the proposed findings of fact filed by Petitioners are addressed as follows:
Accept that John Remington holds the option on the property. See HO #1. Reject the rest of paragraph 1 as contrary to fact. See HO #6.
Accept the description of the project locale. See HO #7. The rest is rejected as irrelevant. Outside scope of hearing.
Accepted. See HO #7.
Accepted. See HO #7.
Rejected. Irrelevant. Outside scope of hearing.
Rejected. Irrelevant. Outside scope of hearing.
Rejected. Irrelevant. Outside scope of hearing.
Accepted.
Accepted.
Rejected. Argumentative.
Rejected. Improper summary. Irrelevant.
Accepted. See Ho #2.
Accepted. See Preliminary Matters.
Rejected. Improper summary.
Rejected. Immaterial.
Accepted.
Rejejcted. Improper summary.
Accepted.
Rejected. Immaterial.
Rejected. Legal argument.
Rejected. Beyond the reasonable assurances standards.
Accepted as a reasonable possibility. See HO #11.
Accept the first sentence. See HO #11. The rest is rejected as argumentative.
Accept as a fact summary. The assumption portion is rejected as argumentative.
Rejected. Premature analysis of future sewer treatment plant permit.
Accept first sentence. The rest is rejected as argumentative and beyond scope of hearing.
Accepted.
Accepted to the point that such information could be known, based upon the methods used to form the opinion.
Rejected. Argumentative.
Respondent Builders' proposed findings of fact are addressed as follows:
Accepted. See HO #4.
Accepted. See HO #4.
Accepted. See HO #2.
Accepted.
Accepted. See HO #7.
Accepted. See HO #10.
Accepted. See HO #7 and #9.
Accepted. See HO #11.
Accepted. See HO #8.
Accepted. See HO #21.
Rejected, except that there is no evidence of scour activity. There was insufficient evidence for the conclusion that the pass is very stable.
Accepted. See HO #7.
Accepted. See HO #4.
Accepted. See HO #13.
Accepted. See HO #21.
Accepted.
Rejected. Premature in this proceeding.
Accepted. See HO #16 and #17.
Accepted that reasonable assurances provided. See HO #11 and #16.
Accepted. See HO #33.
Accepted. See HO #13 through #16.
Accepted. See HO #16 and #17.
Accepted.
Rejected. Repetitive.
Accepted. See HO #31.
Accepted. See HO #18.
Rejected. Contrary to fact. See HO #21 and #29.
Accepted. See HO #23-#25.
Rejected. Contrary to fact. See HO #21, #22 and #29.
Accepted. See HO #30.
Accepted.
Accepted.
Respondent DER's proposed findings of fact are addressed as follows:
Accepted. See HO #4 and HO #7.
Accepted. See HO #5.
Rejected. Contrary to fact. See HO #4.
Accepted. See HO #4.
Accepted. See HO #15.
Accepted. See HO #16.
Rejected. Contrary to fact. See HO #8.
Accepted.
Rejected. Conclusionary. See HO #21 and #29.
Accepted. See HO #9.
Accepted. See HO #10.
Accepted. See HO #23.
Accepted.
Rejected. Contrary to fact. See HO #22.
Accepted. See HO #22.
Accepted. See HO #16.
Accepted.
Accepted.
Accepted. See HO #13.
Rejected. Speculative.
Accepted. See HO #16.
Accepted.
Rejected. Speculative.
Accepted. See HO #17.
Accepted. See HO #5.
Accepted. See HO #6.
Rejected. Outside of scope of hearing.
COPIES FURNISHED:
Joseph Z. Fleming, Esquire 620 Ingraham Building
25 Southeast Second Avenue Miami, Florida 33131
Terry E. Lewis, Esquire Kevin S. Hennessy, Esquire MESSER VICKERS CAPARELLO
FRENCH AND MADSEN
Suite 301
2000 Palm Beach Lakes Boulevard West Palm Beach, Florida 33409
Richard Grosso, Esquire Assistant General Counsel Department of Environmental
Regulation
2600 Blairstone Road
Tallahassee, Florida 32399-2400
Daniel H. Thompson, Esquire General Counsel
Department of Environmental Regulation
2600 Blairstone Road
Tallahassee, Florida 32399-2400
Dale H. Twachtmann, Secretary Department of Environmental
Regulation
2600 Blairstone Road
Tallahassee, Florida 32399-2400
=================================================================
AGENCY FINAL ORDER
=================================================================
BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
THE CONSERVANCY, INC., and FLORIDA AUDUBON SOCIETY,
Petitioners,
vs. OGC NO. 88-0845
DOAH NO. 88-4760
VERNON ALLEN BUILDER, INC. and STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondents.
/
FINAL ORDER
On December 7, 1989, the Hearing Officer from the Division of Administrative Hearings served on the Department of Environmental Regulation ("Department") and all other parties to this action her Recommended Order, a copy of which is attached as Exhibit "A." Petitioners served exceptions to the Recommended Order on December 21, 1989, and Respondent, A. Vernon Allen Builder, Inc. ("Builder"), served exceptions on December 14, 1989. Petitioners served a response to Builders' exceptions. Builder and the Department each served responses to Petitioners' exceptions. All exceptions and responses were timely.
On December 21, 1989, Petitioners served a request for oral argument. On January 2, 1990 Builder served a response opposing Petitioners' request for oral argument.
On January 12, 1990, Petitioners filed a motion which in essence is an attempted reply brief to the Department's response to Petitioners' exceptions. Rule 17-103.200(1), Fla. Admin. Code, provides in part:
Within 15 days from the date of filing of a Recommended Order with the Clerk of DOAH, in accordance with Section 120.57(1), F.S., parties to the proceeding may file written Exceptions to the Recommended Order in the Department's Office of General Counsel, with service of copies on all parties. Exceptions not filed (received) in the Office of General Counsel within the 15 days shall be rejected. Exceptions shall state, with particularity, the basis for asserting that the hearing officer erred in making or omitting specific findings of fact,
conclusions of law, or a recommendation. Any exception disputing a finding of fact must be accompanied by a complete transcript of the hearing. And art may serve one Response to Exceptions within
10 days of service of the Exceptions. No further pleadings will be allowed except by order of the Department for good cause shown by the movant... (emphasis added)
Petitioners have neither shown nor attempted to show cause for filing an additional pleading. I find that good cause has not been shown and deny Petitioners' motion. Therefore, the motion is not part of the record and was not considered in the preparation of this final order. See Roth v. Pasco County Utilities and Department of Environmental Regulation OGC File No. 88-0558 (DER Final Order, December 15, 1989).
The matter thereupon came before me as Secretary of the Department for final agency action.
BACKGROUND
This proceeding concerns a challenge brought by Petitioners to the Department's notice of intent to issue a dredge and fill permit to excavate and redeposit approximately 1,155 cubic yards of channel bottoms in Gordon Pass for the purpose of embedding a four-inch diameter ductile iron subaqueous sewer pipeline and a duct bank of three four-inch conduits from the mainland portion of the City of Naples, Florida, to Keewaydin Island ("Key Island").
The waters of Gordon Pass are part of an estuary and are designated as Class II waters for shellfish propagation and harvesting. Shellfish harvesting is not approved in the area. Snook and Redfish spawn in the Pass.
Gordon Pass already has several subaqueous crossings embedded below its bottom surface in the same general vicinity as the proposed project. These crossings include a six-inch diameter water main, electric cables, and telephone and television cables. The U.S. Army Corps of Engineers routinely dredges the Pass on the northern side of the Island to maintain its navigability.
Key Island is a coastal barrier island which is partially developed. The development is a vacation resort comprising several cottages, a clubhouse, restaurant, pool, marina, and tennis courts. An additional development of a 75- unit single-family development is planned which is to be served by the proposed sewer pipeline.
A formal hearing on the matter was held before a Hearing Officer of the Division of Administrative Hearings in Naples, Florida, on April 3 through 5, 19 through 21, and May 3, 1989. The hearing was continued to May 12, 1989, when it was completed by means of a telephone conference. The Hearing Officer issued her Recommended Order that the Department grant the Permit subject to Specific Condition Number 6 being amended to read:
6. Dredging shall be done by mechanical means (no hydraulic dredging) as there does not appear to be an appropriate area for discharge retention available. No dredging shall be allowed during the
weeks of July 1st through September 30th of any year. If rock is encountered during the dredging activity along the proposed pipeline corridor, the rock is to be punctured by mechanical means.
The Hearing Officer found that, subject to the above modification of Specific Condition No. 6, reasonable assurances have been provided that water quality standards will not be violated, and that the project is not contrary to the public interest.
RULING ON REQUEST FOR ORAL ARGUMENT
Petitioners have requested oral argument before the Secretary of the Department. Rule 17-103.200(3), Fla. Admin. Code, provides that the Secretary, in his discretion, may grant oral argument. I decline to do so in this case.
All parties have had an opportunity to file written pleadings in this matter. Petitioners have filed 60 pages of exceptions. It does not appear that oral argument is necessary to clarify the issues in this case. Accordingly, the request for oral argument is denied.
RULING ON PETITIONERS' EXCEPTIONS
Petitioners filed 122 numbered exceptions which, counting subparts, amount to a total of more than 170 exceptions. I have grouped these exceptions according to the following issues: Cumulative Impacts; Consideration of other Permits; Public Interest Test; Modifications, Incompleteness and Feasibility of Permit Application; Impacts on Water Quality; Reasonable Assurances; Proposed Findings of Fact; Miscellaneous Exceptions; and Exceptions Rejected for Failure to State Grounds with Particularity. I shall discuss and rule on each exception by the above groupings.
Cumulative Impacts
Petitioners' exceptions numbers 4, 6, 8, 10-18, 20, 21, 29, 42, 44, 45, 47,
52D, 62, 74, 77, 78, 82, 94, 95, 97, 98, 112(A), 112(B)(1), 112(B)(6),
112(B)(16), 112(B)(19), 112(B)(20), 115, 116, 121, and 122 are directed to the
issue of cumulative impacts. Petitioners contend that the Hearing Officer erred by excluding from the hearing matters relating to environmental impact of future developments of Key Island. Petitioners argue that the decision in the case of del Campo v. Department of Environmental Regulation, 452 So.2d 1004 (Fla. 1st DCA 1984), requires that the impact of all future development of the island must be considered in this permit proceeding.
The del Campo decision involved an application for a dredge and fill permit for a bridge to a completely undeveloped island. The court held that the hearing officer erred in excluding testimony and other evidence relating to the impact of the development of the island. The court in del Campo essentially reasoned that since it would be economic waste to build a bridge to completely undeveloped island, the impact of the inevitable development must be considered.
In this case, however, Key Island is already partially developed, and the proposed pipeline is designed to serve a planned additional 75-unit single- family development. The impact of this additional development was taken into consideration by the Department in its intent to issue, and the Hearing Officer did allow evidence to be introduced on the impact of she 75-unit single-family development. (Recommended Order, Finding of Fact No. 6; Tr. at 389).
Specific Condition No. 10 of the Department's notice of intent to issue clearly put Builder on notice that the planned 75-unit single-family development as well as other planned improvements on Key Island would require additional dredge and fill permits which may be granted or denied depending on their own facts, and that any financial investment in building the sewer pipeline would not assure that the subsequent dredge and fill permits would be granted.
Accordingly, the notice of intent advised Builder to make the other permit applications before constructing the sewer pipeline if Builder felt that denial of the other permits would result in unnecessary expenditure of resources.
Prior to the hearing the issue was addressed in a Motion to Strike Petitioners' Amended Petition. In response to that motion the Hearing Officer ruled:
That when the intent to Issue was filed, DER was aware that the proposed subaqueous sewer main is intended to service a planned seventy five unit single family development. As this future planning may have effects on the design of the system as proposed by Respondent BUILDER, this proposed future development is an appropriate matter for consideration in the formal administrative hearing. Any matters which relate to the development beyond the design plans must be shown to be probative before they will be considered at hearing. If it can be demonstrated that the sewer main line is currently designed for even more development beyond the proposed seventy five units, this aspect of the design and how the design increase affects the review criteria will also be considered at the hearing.
However, any extrapolation which predicts future harms from proposed development is irrelevant, and will not be considered as probative evidence during the formal hearing.
The rule of del Campo only requires the impact of future development to be considered where the likelihood of future development is highly probable given the economic waste of the permitted activity in the absence of such future development. Thus, in Caloosa Property Owners Association v. Department of Environmental Regulation, 462 So.2d 524 (Fla. 1st DCA 1985), the court held that the Department was not required to consider the impacts of future development where there was no evidence establishing a reasonable likelihood of prospective development in the same area. See also Chippola Basin Protective Group v.
Department of Environmental Regulation, 11 FALR 467, 476 (DER Final Order, December 29, 1988), holding that where evidence of similar projects in the future is merely speculative, the Department is not required to consider the cumulative impact of such projects.
At the hearing in this case, expert testimony was introduced showing that the capacity of the pipeline was appropriate for the loading from the planned 75-unit development, but too small to handle the large additional development
which the Petitioners claim would occur. (Testimony of Ahmadi, Tr. at 391, 452- 454). Therefore, there was competent, substantial evidence to support the Hearing Officer's conclusion that evidence of impacts of development beyond the planned 75-unit single-family development should be excluded because there was no reasonable likelihood that the pipeline would be economic waste in the absence of such future development. Therefore, I shall not disturb the Hearing Officer's ruling on this issue.
Finally, Petitioners argue that the Hearing Officer denied them an opportunity to make appropriate proffers of evidence. The Hearing Officer excluded evidence and testimony relating to speculative future development and other permits, but did allow Petitioner to make proffers of such testimony and evidence.
Petitioners appear to be confused as to the purpose of a proffer. The purpose of a proffer is so that the proposed evidence can be considered at a later date by the reviewing or appellate court. See Tobin v. Alfieri Maserati S.P.A., 513 So.2d 699 (Fla. 3rd DCA 1987), review denied 520 So.2d 1042 (Fla. 1987); Rule 1.450(b), Florida Rules of Civil Procedure.
The Hearing Officer properly limited the issues in the hearing and properly limited the evidence by considering only testimony and exhibits which were relevant to the matters at issue in the proceeding. However, the Hearing Officer correctly allowed the Petitioners to proffer evidence on other issues which they felt should be admitted and considered. (See Tr. at 557-567, 667- 668, 904-904, 910-911, 1132-1134).
Therefore, for the reasons stated above, I reject the above noted exceptions.
Consideration of Other Permits
Petitioners' exceptions numbers 39-41, 43 and 96 are directed to the issue of whether the Department, in considering this application for a dredge and fill permit, must consider the requirements of other local, state or federal permits which may also be required to complete the project. Large projects often may have a variety of activities that are potential sources of pollution requiring more than one Department permit. In some cases, more than one permit may be considered at a consolidated hearing. However, there is no requirement, either express or implied, in any of the governing legislation of the Department that would require an applicant to submit, or the Department to consider, all permit applications at one time. Furthermore, the Department may only consider those permit applications over which it has jurisdiction. Council of Lower Keys v.
Charles Toppino and Sons, 429 So.2d 67 (Fla. 3d DCA 1983). Therefore, all of the above noted exceptions are rejected.
Public Interest Test
Petitioners' exceptions numbers 48, 65-73, 75-76, 99, 100, 104, 106A and
117 are directed to the issue of whether reasonable assurances were provided that the proposed project is not contrary to the public interest.
Since Gordon Pass is not a designated Outstanding Florida Water, the applicant must provide reasonable assurance that the project is not contrary to the public interest. Section 403.918(2), Florida Statutes. The Hearing Officer considered and balanced all of the criteria set forth in Section 403.918(2), Florida Statutes, and concluded that reasonable assurance had been provided that
the project would not be contrary to the public interest if the Permit Specific Condition No. 6 is modified as stated above. (Recommended Order at 11-14).
Petitioners assert that the Hearing Officer failed to consider properly the impact on endangered or threatened species because she inadvertently referred to Gopher Tortoises instead of sea turtles. However, since Gopher Tortoises were not discussed at the hearing, it is apparent the Hearing Officer was clearly referring to the impact on sea turtles and appropriately weighed this impact in her balancing of each of the factors. Therefore, I find that the inadvertent misnaming of the sea turtle does not invalidate her conclusions.
The Hearing Officer determined that Redfish spawn in the Pass from August to October, and that the preliminary permit approval had not taken into consideration the impact on the Redfish nursery. (Recommended Order at 12-13). The record contains competent, substantial evidence that Redfish spawning in the pass begins in August, peaks in October, and ends by December or January. (Tr. at 1027). There is also competent, substantial evidence in the record that Snook spawn in the Pass from July through August. (Tr. at 311, 654). The Hearing Officer therefore found that Specific Condition No. 6 should be modified to preclude dredging and filling during the weeks of July 1st through September 30th of any year in order to provide reasonable assurance that the project would not be contrary to the public interest.
The fact that the spawning period for Redfish may be longer than the period from July 1st through September 30th does not make the Hearing Officer's balancing of the criteria erroneous. The public interest test only requires a balancing of the various factors, and does not require a complete elimination of all adverse impacts. Section 403.918(2)(a), Florida Statutes; Shabloski v.
Dept. of Environmental Regulation, 377 So.2d 50 (Fla. 1st DCA 1978)(some impacts allowed in return for social and economic gain).
Therefore, the Hearing Officer's determination that modification of Specific Condition No. 6 to preclude dredging from July 1st through September 30th will provide reasonable assurance that the project is not contrary to the public interest is supported by competent, substantial evidence, and I shall not disturb it.
The Hearing Officer's findings of fact that the benthic communities will recolonize after the dredging, and that the construction techniques utilized will limit the harm to the benthic communities, are supported in the record by competent, substantial evidence and may not be overturned. (Tr. at 301-305, 311, 649). The Hearing Officer's conclusions on affects on navigation, flow of water, erosion or shoaling are also supported by competent, substantial evidence. (Tr. at 100-201; 199-200; 306-7). The Hearing Officer's conclusion that the project will not adversely affect fishing, recreation value, or marine productivity, except for the Redfish nursery, is similarly supported by competent, substantial evidence. (Tr. 654-663). Finally, the Hearing Officer's conclusion that the project will be permanent and that adverse effects will be only temporary during construction is likewise supported by competent, substantial evidence. (Tr. at 657-663).
In sum, I find that the Hearing Officer appropriately considered and balanced all of the public interest criteria of Section 403.918(2)(a), Florida Statutes, and that her findings of fact are supported by competent, substantial evidence in the record. Therefor, I will not disturb those findings and I accept the Hearing Officer's recommended modification of Specific Condition No.
6. Accordingly, the above noted exceptions are rejected.
Modification, Incompleteness, and Feasibility of Permit Application
Petitioners' exceptions numbers 33-38, 46, 47, 49-51, 53, 54, 59, 79, 83-
90, 101, 102, 106B, 108, 112(B)(8), 112(B)(9), 112(B)(11), 112(B)(12),
112(B)(14)-112(B)(16) and 113(A) are directed to the issues of whether the application was incomplete, whether the modifications are permissible, and whether the project is technically feasible as permitted.
Petitioners in essence argue that the project as permitted is subject to "after the fact" design modifications that are so extensive as to render the administrative determination a denial of due process. This issue has been raised in a number of other administrative proceedings. See, e.g., Kralik et al vs. Ponce Marina, et al, 11 FALR 669 (DER Final Order, Jan. 11, 1989). While a clear determination of the scope and effects of the project is essential to the determination of whether a permit should issue, there are often circumstances in which a certain amount of "field engineering" must be done on a project that cannot be fully explored at hearing. Kralik, id. So long as there is an opportunity at the hearing to explore the issues related to minor modifications, and there is adequate support in the record to support the findings of fact, due process is not denied and no error is committed. Hopwood v. Department of Environmental Regulation, 402 So.2d 1296 (Fla. 1st DCA 1982); Manatee County v. Department of Environmental Regulation, 429 So.2d 360 (Fla. 1st DCA 1983), rev. den., 438 So.2d 833 (Fla. 1983).
The purported modifications to which Petitioners refer do not even rise to the level of after the fact field engineering. Petitioners assert that inadequate information is available on the bathymetry of the channel to allow for design of the pipeline. However, considerable expert testimony was presented at the hearing that the proposed design and permit conditions take into consideration all reasonably potential variables. Builder presented expert scientific and engineering testimony that supported the design and conditions of the project. (Testimony of Stephens, Tr. at 1334; Testimony of Schneider, Tr. at 1346-1355, 1385-86). It is also quite clear from the record that if field experience reveals the need for major changes to the construction of the project, a permit modification must be sought. (Testimony of Edwards Tr. at
608-612).
Petitioners also assert that the pipeline cannot be constructed as proposed and will not function as proposed. Nevertheless, the findings of the Hearing Officer with respect to these issues are supported by competent, substantial evidence in the record. There was testimony from Mr. Schneider (Tr. at 112-113, 1390-1391), Dr. Ahmadi (Tr. at 385, 394), Mr. Crawford (Tr. at 195-198), and Rob Loflin (Tr. at 655) as to the design features of the pipeline, the high quality and durability of the material proposed to be used for the pipeline, and the construction methods to be utilized. There was further testimony from Schneider (Tr. at 205-218), Loflin (Tr. at 646-647), Crawford (Tr. at 197-198), and Ahmadi (Tr. at 395) that the subbottom of the pass along the proposed corridor will provide a good foundation material for the pipeline. There was testimony from Schneider (Tr. at 105-106, 110) and Loflin (Tr. at 647-649) that the Corps of
Engineers routinely dredges the pass on the northern side of Key Island to keep it navigable, and that there are several other subaqueous cable crossings in the general vicinity of the proposed project.
In sum, the required field engineering is not such as to deny Petitioners' due process in this proceeding, particularly in light of the fact that any major change to the construction of the project will require a permit modification.
Since the Hearing Officer's finding that reasonable assurance had been provided that the project may be constructed without violation of water quality standards is supported in the record by ample competent, substantial evidence, I shall not disturb the findings, and the above noted exceptions are rejected.
Impacts On Water Quality
Petitioners' exceptions numbers 47, 52A-52D, 53-58, 61, 77, 92, 93, 112(B)(7), and 112(B)(18) are directed to impacts on water quality. The Hearing Officer found that reasonable assurance had been provided that water quality standards would not be violated once the pipeline is embedded. (Recommended Order at 10). This finding is supported in the record by competent, substantial evidence (Tr. at 198, 298-300, 457, 650, 652,-654, 658-661), and I shall not overturn these findings.
Petitioners also argue that the Hearing Officer erred in finding that reasonable assurance had been provided that secondary impacts from the operation of the sewer pipeline would not cause water quality violations. Once again, the Hearing Officer's finding is supported in the record by competent, substantial evidence. Testimony at the hearing established that the requirement for a pressure gauge and shut off valves are adequate to protect water quality even if the shut-off valve is not automatic. Testimony further established that the probability of a leak was small, that similar systems had been installed and had not experienced problems, and that a leak could be easily detected visually in addition to detection by the pressure valve. (Tr. 384-386, 392-393, 468, 470-
472, 483).
Since there is competent, substantial evidence in the record to support the Hearing Officer's finding that reasonable assurance has been provided that the operation of the sewer pipeline will not cause water quality violations, I shall not disturb the finding. Therefore, the above noted exceptions are denied.
Reasonable Assurances
Petitioners' exceptions numbers 80, 105 and 118 broadly assert that the Hearing Officer erred in finding that reasonable assurance has been provided that the project will not violate water quality standards and that the project is not contrary to the public interest. For the same reasons stated in parts 3 and 5 above, these findings are supported in the record by competent, substantial evidence and I shall not disturb them. Accordingly, the above noted exceptions are rejected.
Proposed Findings of Fact
Petitioner's exceptions numbers 112(B)(1)-112(B)(5), 112(B)(8)-112(B)(18), and 112(B)(20) are virtually identical to proposed findings of fact submitted in Petitioners' Proposed Recommended Order. The Hearing Officer expressly rule on each of these proposed findings of fact. (Recommended Order at 21-22). Where exceptions merely reiterate proposed findings of facts which had been asserted before the Hearing Officer, and where the Hearing Officer clearly and
specifically addressed each in the recommended order, I am not required to provide any further explicit reasons for my ruling. Britt v. Dept. of Professional Regulation, 492 So.2d 697 (Fla. 1st DCA 1986), overruled on other grounds, Dept. of
NOTE: PAGE OF THIS FINAL ORDER IS UNAVAILABLE
Exceptions Rejected For Failure To State Grounds With Particularity
Rule 17-103.200(1), Fla. Admin. Code, provides in part:
Exceptions shall state with particularity the basis for asserting that the Hearing Officer erred in making or omitting specific findings of fact, conclusions of law, or a recommendation...
The reason for the above requirement is clear. It is impossible for the parties to respond, or for me to rule, when the basis for a purported error is not clearly stated. Petitioners' exception number 6 expressly recognized the necessity to state the grounds with particularity. However, numerous of the Petitioners' more than 170 exceptions simply state that the Hearing Officer has erred in a finding of fact or conclusion of law without identifying the grounds for the asserted error. Such exceptions do not comply with Rule 17-103.200(1), Fla. Admin. Code, and therefore must be rejected. For this reason, I reject Petitioners' exceptions numbers 2, 5, 6, 9, 18, 19, 21-28, 40, 41, 60, 63, 64,
76, 81, 86, 89, 92, 101, 103, 107, 109, 110, 114, 119 and 120.
Concluding Remarks On Petitioners' Exceptions
All of Petitioners' exceptions have been ruled on and denied in the above parts 1 through 9. Certain of the exceptions were directed to more that one issue and were ruled on and denied for more than one reason as stated in the above categories. These exceptions are numbers 2, 5, 6, 18, 21, 40, 41, 47,
52D, 53, 54, 76, 77, 86, 89, 92, 101, 112(B)(1), 112(B)(8), 112(B)(9),
112(B)(11), 112(B)(12), 112(B)(14), 112(B)(16), 112(B)(18), and 112(B)(20).
RULING ON BUILDER'S EXCEPTIONS
Respondent, Builder, filed two exceptions. Builder's first exception addresses the Hearing Officer's reference to gopher tortoises. Builder asserts that this finding of fact was intended to reflect the impact of the project on sea turtle migration. For the reasons set forth in my discussion of this issue in Part 1 of my discussion of Petitioners' exceptions, I accept this exception of Builder.
Builder next excepts to the Hearing Officer's acceptance of certain proffers by the Petitioners. Builder asserts that under the rule of Barry v. Department of Environmental Regulation, 530 So.2d 1019 (Fla. 4th DCA 1988), the proffer was insufficient because it was merely an attorney's summary of testimony without an acknowledgement by the witness. I need not decide whether the proffer is sufficient under the rule of Barry because Builder waived the issue by stating at the hearing that it would accept the summary by Petitioners'
attorney. (Tr. at 1318-1319). Builder's second exception is therefore rejected.
Having ruled on all the exceptions it is ORDERED:
Except as otherwise stated in this Final Order, the Hearing Officer's Recommended Order is adopted and incorporated herein by reference.
Specific Condition No. 6 shall be modified to read as follows:
6. Dredging shall be done by mechanical means (no hydraulic dredging) as there does not appear to be an appropriate area for discharge retention available. No dredging shall be allowed during the weeks of July 1st through September 30th of any year. If rock is encountered during the dredging activity along the proposed pipeline corridor, the rock is to be punctured by mechanical means.
The Department shall forthwith issue Permit No. 111486645 as modified by this Order to Respondent A. Vernon Allen Builder, Inc.
NOTICE OF RIGHTS
Any party to this Final 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 22nd day of January, 1990, 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
FILING AND ACKNOWLEDGEMENT
FILED, on this date, pursuant to S.120.52 Florida Statutes, with the designated Department Clerk, receipt of which is hereby acknowledged
1/22/90 Clerk Date
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the following persons by United States Mail, on this 22nd day of January, 1990.
The Honorable Veronica E. Donnelly Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
Joseph Z. Fleming, Esquire 620 Ingraham Building
25 Southeast Second Avenue Miami, Florida 33131
Terry E. Lewis, Esquire Kevin S. Hennessy, Esquire MESSER VICKERS CAPPARELLO
FRENCH AND MADSEN
Suite 301
2000 Palm Beach Lakes Boulevard West Palm Beach, Florida 33409
Carol Forthman
Assistant General Counsel
Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
ROBERT G. GOUGH
Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
Telephone (904) 488-9730
=================================================================
AGENCY ORDER OF REMAND
=================================================================
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION
THE CONSERVANCY, INC., and FLORIDA AUDUBON SOCIETY,
Petitioners,
DOAH CASE NO. 88-4760
vs. OGC CASE NO. 88-0845
A. VERNON ALLEN BUILDER, INC., and STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondents.
/
ORDER OF REMAND
On March 29, 1991, the District Court of Appeal for the First District issued its opinion in the appeal of this case brought by Petitioners, The Conservancy, Inc., and Florida Audubon Society, Case No. 77,968, 1st DCA No. 90-
520. In that opinion the District Court reversed the Final Order of the Department on the issue of secondary impacts of the proposed project. The Court ordered a remand of the case for "further proceedings and re-evaluation of the proffered evidence on secondary impacts in a manner consistent with this opinion.
Subsequently, Respondent, A. Vernon Allen Builders, Inc., filed a Petition for Review with the Florida Supreme Court. On September 16, 1990, the Supreme denied the Petition for Review.
Therefore, in accordance with the mandate and opinion of the First District Court of Appeal,
IT IS ORDERED;
Office of General Counsel Case Number 88-0845, Division of Administrative Hearings Case number 88-4760, is hereby REMANDED to the Division of Administrative Hearings for further proceedings as directed by the Court's opinion.
DONE AND ORDERED this 18th day of October, 1991.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
CAROL M. BROWNER
Secretary
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been sent by U.S. Mail to the following:
Joseph Z. Fleming, Esq. Kevin Hennessy, Esq. 620 Ingraham Bldg 2000 Palm Beach Lakes Blvd
25 SE 2nd Ave Suite 301
Miami FL 33131 West Palm Beach FL 33409 and by hand delivery to:
Veronica E. Donnelly Ann Cole, Clerk
Hearing Officer Division of Administrative Division of Administrative Hearings
Hearings The DeSoto Bldg
The DeSoto Bldg 1230 Apalachee Pkwy
1230 Apalachee Pkwy Tallahassee FL 32399-1550
Tallahassee FL 32399-1550
this 22nd day of October, 1991.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
CAROL A. FORTHMAN
Deputy General Counsel Twin Towers Office Bldg. 2600 Blair Stone Rd Tallahassee FL 32399-2400 Telephone: 904/488-9730
================================================================= DOAH RECOMMENDED ORDER AS TO MATTERS ON REMAND
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
THE CONSERVANCY, INC. and )
FLORIDA AUDUBON SOCIETY, )
)
Petitioners, )
)
vs. ) CASE NO. 88-4760
)
A. VERNON ALLEN BUILDER, INC., and ) STATE OF FLORIDA DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )
)
Respondents. )
)
RECOMMENDED ORDER AS TO MATTERS ON REMAND
Pursuant to notice, a formal administrative hearing was held on May 4-7, 1992, before Veronica E. Donnelly, a duly designated Hearing Officer of the Division of Administrative Hearings, in Naples, Florida.
APPEARANCES
For Petitioner: Joseph Z. Fleming, Esquire
Joseph Z. Fleming, P.A. 620 Ingraham Building
25 Southeast Second Avenue Miami, Florida 33131
For Respondent Terry E. Lewis, Esquire Applicant: Kevin S. Hennessy, Esquire
Messer, Vickers, Caparello, Madsen, Lewis, Goldman & Metz
2000 Palm Beach Lakes Blvd. Suite 900
West Palm Beach, Florida 33409
For Respondent Francine M. Ffolkes, Esquire DER: Assistant General Counsel
Department of Environmental Regulation
2600 Blairstone Road
Tallahassee, FL 32399 STATEMENT OF THE ISSUE
Whether the Department of Environmental Regulation (DER) should grant A. Vernon Allen Builder, Inc. (the Applicant) a dredge and fill permit for the
subaqueous sewer line after the potential secondary impacts closely linked or casually related to the construction project are considered.
PRELIMINARY STATEMENT
On December 7, 1989, Hearing Officer Veronica E. Donnelly issued a Recommended Order in the above-styled cause. The order acknowledged that she had limited the scope of the final hearing to impacts associated with the dredge and fill activities which were the subject of the permit. It was determined that potential future development on the partially developed island was beyond the scope of this hearing and was more appropriately addressed in subsequent permit reviews.
DER issued a Final Order on January 2, 1990, which adopted and incorporated the Recommended Order. A timely appeal was taken by Petitioners, and on March 29, 1991, the District Court of Appeal for the First District rendered its Opinion on the issue of secondary impacts. In that opinion, the Court reversed the Final Order as to what secondary impacts should be considered in a permit review involving a coastal barrier island. The Court ordered a remand for further proceedings and reevaluation of the proffered evidence on potential secondary impacts associated with future development of the island. See The Conservancy, Inc. V. A. Vernon Allen Builder, Inc. 580 So.2d 772 (Fla. 1st DCA 1991) cert. den. 591 So.2d 631 (Fla. 1991).
DER subsequently issued an Order of Remand to the Division of Administrative Hearings on October 18, 1991, which required the Division to hold further proceedings consistent with the Opinion rendered by the Court.
After DER did a review of the secondary impacts on the pending application, it was determined that the project was preliminarily entitled to a permit on January 24, 1992. Based upon the completion of this review, the case was scheduled for hearing.
During the hearing, the Applicant presented six witnesses and twenty three exhibits. The DER called two witnesses and moved five exhibits into evidence. Petitioner, Florida Audubon Society (FAS), called two witnesses and filed five exhibits. All of the exhibits were admitted into evidence. The Conservancy, Inc. chose not to participate in the presentation of evidence at hearing.
The transcript of the proceeding was filed on June 17, 1992. Due to the timing of other scheduled hearing involving the same proposed development, the parties waived their opportunity to file Proposed Recommended Orders within 10 days of the hearing. Proposed findings of fact were filed by the Applicant, DER and FAS on August 3, 1992. The Conservancy, Inc. joined in the Proposed Recommended Order submitted by FAS. Rulings on the proposed findings are in the Appendix to this Recommended Order.
SUPPLEMENTAL FINDINGS OF FACT
Proposed Development
The proposed development on the island, which has been approved by the City of Naples, involves the refurbishment and expansion of existing Keewaydin Club Facilities along with the construction of 42 single family homes within the city's jurisdictional boundaries.
The Applicant is limited in its improvement of the Keewaydin Club Facilities as follows: Construction must occur within the existing club property boundaries. A maintenance facility, firehouse, helipad and additional tennis courts are to be constructed. In addition, two buildings containing guest units and a building with 21 staff units can be built. Existing buildings can be remodeled to continue in their present functions and the clubhouse can be expanded by an additional 4,400 square feet.
Marina expansion has been proposed by the Applicant, along with elevated walkways through jurisdictional wetlands. These, however, are not essential to the proposed development. As the DER's permitting review of these portions of the development has not yet occurred, it is assumed that they will be included in the project so that the secondary impacts of potential development can be considered during the current dredge and fill permit review that involves the temporary displacement and redeposit of the same 1,155 cubic yards of material within Gordon Pass during the embedding of a subaqueous sewer line.
The 42 single family homes are planned for specific locations south of the club property. These homes will be on 15,000 square foot lots and are expected to contain about 5,000 square feet of air conditioned area. These homes are expected to cost over one million dollars apiece, at today's prices. It is anticipated that they will be landscaped with native vegetation and that residents will move around the island via golf carts on cart paths.
Because the city has limited the planned development to the 42 residential units and the improvements to the club, both the Department of Natural Resources and South Florida Water Management District have approved permits specifically tailored to this development plan.
The privately owned portion of the island cannot be developed further because of the city's approval conditions for this project. These two conditions are: 1) City Ordinance 89-5843 mandates all of the property in the land options involved with future development must be annexed into the city; and
2) Once the property is annexed, the Applicant will give the city a conservation easement over 2,270 acres. This acreage is to be retained in its natural state and is expected to be maintained as suitable habitat for fish, plants and wildlife.
The City of Naples requires the developer to eliminate all septic tanks serving the Keewaydin Club as one of its conditions for approval of the current project. This has the potential to positively impact and improve current water quality on the island.
Specific measures have been proposed to minimize development impacts on the wildlife known to inhabit the island. Preservation of the osprey nest zone, upland gopher tortoise habitat, control of wheeled traffic on the beach, use of indirect lighting to avoid disorientation of baby Atlantic loggerhead turtles as they hatch from nests, and trapping programs to control the raccoon population are prepared and ready for implementation.
The vast number of natural plant species on the island will be protected in designated areas. The preservation has been planned so representatives of species of interest will continue to thrive.
Water Quality
During its post-remand review of secondary impacts, DER did not independently evaluate the water quality considerations in the permit issued by the South Florida Water Management District. It was assumed that the water management district correctly determined that DER's water quality standards had been met.
In its review of the proposed development DER identified several areas of potential adverse water quality impacts. Specifically, DER investigated impacts from a potential marina expansion; the creation of all planned cart paths, proposed house pad construction, boardwalk and canoe launches, exempt docks, and beach renourishment.
The marina expansion, boardwalks, canoe launches will impact existing nonjurisdictional mangroves thereby affecting water quality. If permitted, the Applicant can reasonably minimize such impacts and offset them in a suitable fashion.
The primary impacts from exempt docks appear to be minimized by the development plan. The secondary potential impacts are negligible on this dredge and fill project.
The cart paths will not be paved. Urban runoff from these surfaces will have an insignificant quantity of pollutants that are accounted for in the surface water management system design.
The secondary impacts from the house pad construction and the urban runoff from associated impervious surfaces are minimal. Nevertheless, they are accounted for in the surface water management system design.
The agreements entered into between the Applicant, the City of Naples, and the Department of Natural Resources prohibit any additional shore hardening. The beach management plan includes periodic beach renourishment.
A review of the surface water management plan presented at hearing reveals that the potential for adverse secondary impacts is significantly limited due to the low density and minimal infrastructure for the proposed development. The 42 new homes will be spread over 430 acres. A series of swales, collection ponds and surface water treatment areas have been designed to minimize the impacts of development on the surface water. The use of fertilizer or pesticides by residents will be strictly limited.
The surface water management system meets DER's water quality standards.
Potable water is already conveyed to the island from the city. Once the septic tanks are removed, the overall affect of the planned development on ground water will be negligible.
Reasonable assurances have been demonstrated by the Applicant that the proposed subaqueous sewer line will not adversely impact water quality if the proposed development if the proposed development conditions are adhered to by the Applicant.
Public Interest Criteria
The proposed development will not adversely affect public health, safety or welfare or the property of others.
All new construction is required to meet flood protection standards even though the owners will not be eligible for flood insurance. Home construction standards take into consideration many of the effect of hurricanes.
The hurricane evacuation plan has been approved by the city and Collier County Emergency Management.
Public funds are protected as the proposed development is not dependent upon federal, state or local funding or insurance. The city has passed an ordinance that requires property owners to acknowledge that the city has no liability for rebuilding any damaged infrastructure or improvements. The monetary risk associated with the development will be borne by the developer and the residents.
The additional 42 single family homes are located within the island's Coastal Barrier Resources Act (CBRA) unit boundaries. The evidence adduced at hearing indicated that the CBRA designation will not be jeopardized by the proposed development.
The proposed development will have negligible secondary impacts on fish and wildlife. The project protects or enhances various fish and wildlife habitats. All wetlands will be preserved. The beach dune system will be improved through removal of exotics and dune restoration. As a result, the interdependency of the estuarine area on the coastal barrier resource will not be adversely affected by the project.
Gopher tortoises will be located to an upland preserve on the same island. The removal of exotic plants, the introduction of native herbaceous plants and control of the raccoon population should positively affect the gopher tortoise population.
Indirect lighting and the reduction of raccoons should benefit the Atlantic loggerhead turtle population as well.
Threatened or endangered plant species on the site include golden leather fern, assorted orchids and bromeliads, golden polypody fern, shoestring fern and prickly pear cactus. Representatives of these species will be protected in preserve areas, according to conditions in the development plan approved by the city and conditions established in other permits.
The proposed project preserves all identified habitats which contribute to marine productivity. Low density development and other limitations already placed on the project were designed to minimize the adverse impacts on fishing and marine productivity. Recreational values will be enhanced by the project because of the proposed canoe launches and habitat restoration.
The development is permanent in nature. Design limitations on the project, existing permit conditions and the low density aspect of the development combine to assure that the project has limited adverse impacts.
There will be no adverse impacts on historical or archeological resources. The Caloosa Indian Midden located on the property is to be preserved undisturbed. The Keewaydin Club Lodge is a designated structure on the National Historical Register and will be maintained as a historical building.
Except for the creation of 42 single home residencies for people willing to spend a million dollars for a home on an island with access only by boat or helicopter and all monetary risk for infrastructure and improvements damaged by any cause, the current condition of the island will not be changed significantly. All high quality resources and their functions have been preserved by project design.
Based upon the additional evidence presented as to secondary impacts of the proposed development, the project is not contrary to the public interest. The Applicant is able to meet the public interest criteria if the project is built as currently proposed. Under such circumstances, mitigation proposals are unnecessary.
If DER determines mitigation is necessary to offset the negligible adverse impacts, the planned preservation of 2,270 acres fulfills that requirement.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter pursuant to Section 120.57, Florida Statutes, and the remand by both the DER and the First District Court of Appeal in The Conservancy, Inc. v. A. Vernon Allen Builder, Inc. and Department of Environmental Regulation, 580 So.2d 772 (Fla. 1st DCA 1991), cert. den 591 So.2d 631 (1991).
In its opinion and remand order, the Court required DER to consider the secondary impacts associated with the development of Key Island, which the Court determined were closely linked and casually related to the proposed permit. As part of the remand, DER was instructed to evaluate the previously proffered evidence that was not considered by the Hearing Officer or the DER in the original Recommended Order and Final Order which approved the permit.
The proffers Petitioners chose to make during the original final hearing were not evidentiary proffers. The Applicant and DER did not reply to these proffers. Instead, they relied upon the Hearing Officer's ruling about the scope of the hearing for this preliminary permit which was one in a series of permit reviews under DER's jurisdiction for the proposed development.
In its good faith effort to comply with the Court's instructions, DER requested and reviewed additional information regarding the proposed development from the Applicant. Based upon a review of the additional information and a site visit, DER preliminarily determined Applicant was still entitled to a permit. DER issued a statement of its position on January 24, 1992.
Although DER's review in response to the remand was consistent with DER's policy of considering secondary impacts announced in McCormick v. City of Jacksonville, 12 FALR 960 (Fla. Department of Environmental Regulation 1991), as required by the Court, it did not consider all of the proffers. Because the Court had instructed DER to consider the proffers, the Hearing Officer attempted to consider them in her review of the secondary impacts based upon the proffers and the evidence presented which either confirmed or negated the representations
made in the original proffers. The DER's policy of reviewing impacts from reasonably likely future development was utilized by both the DER and the Hearing Officer. See Caloosa Property Owners Ass'n v. Department of Environmental Regulation, 462 So.2d 523 (Fla. 1st DCA 1985) and Sarasota County
v. Department of Environmental Regulation, 13 FALR 1727 (Fla. Department of Environmental Regulation 1991).
Section 403.918, Florida Statutes, requires the Applicant to make essentially two showings in order to qualify for a permit. First, the Applicant must provide reasonable assurance that water quality will not be violated. Second, the Applicant must provide reasonable assurance that the project is not contrary to the public interest.
In this case, the Applicant has met its burden. Reasonable assurances were provided through the use of currently accepted scientific methods to produce plans, specifications and other information demonstrating that the project will not violate any agency standard. Friends of the Everglades v. Department of Environmental Regulation, 496 So.2d 181 (Fla. 1st DCA 1986).
The inhabitants of the development must be willing to assume the financial outlay involved with the initial development of a coastal barrier island, including the creation of infrastructure. In addition, they must assume all potential future financial risk of destruction of their homes and infrastructure by any source. Because they are willing to assume these risks, the development is not prevented by Governor Graham's Executive Order No. 81- 105, which provides that government funds will not be used to create the infrastructure that promotes development on barrier islands. The partial development of the island, the private ownership of such a large continuous parcel, the vested exemptions in many aspects of the Keewaydin Club, and the developer's willingness to create such a small development with preserved habitat and the large conservation easement all combine to place this project is in the position to balance all public and private interests provided for in the "Warren S. Henderson Wetlands Protection Act of 1984" in Chapter 403, Florida Statutes.
The only additional conditions that should be placed on this dredge and full permit are: 1) DER should be given the option to accept the conservation easement over 2,270 acres if the city later decides it should revert back to the property owner; and 2) the permit should be conditioned on the pipeline's use by the Keewaydin Club as currently proposed and 42 single family homes.
DER personnel who disagree with the proposed development were heard in both proceedings. These objectors did not apply the balancing tests set forth in Section 403.918, Florida Statutes, as did the personnel who reviewed the actual permit application and the ascertained impacts closely linked or casually connected to the project.
RECOMMENDATION
Based upon the foregoing, it is RECOMMENDED:
That a Final Order be entered approving Applicant's dredge and fill permit DER File No. 111486645, subject to the modification incorporation in the DER Final Order dated January 22, 1990.
That the use of the pipeline be limited to 42 single family homes and the currently proposed improvements to the Keewaydin Club.
That if the city does not accept the proposed conservation easement over 2,270 acres DER will have the option to accept the easement prior to any reversion of the easement back to the property owner.
DONE and ENTERED this 20th day of November, 1992, at Tallahassee, Florida.
VERONICA E. DONNELLY
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1992.
APPENDIX
Petitioner's proposed findings of fact are addressed as follows:
Accepted. See original Recommended Order (RO).
Accepted. See original RO.
Accepted. See HO #1.
Accepted.
Accepted. See original RO.
Accepted. See original RO.
Accepted, but does not take into consideration the balancing tests of Section 403.918, F.S. The Hearing Officer considered and choose to give little weight to these opinions.
Accepted, This contributed to the weight given to the opinions. See Conclusions of Law.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted, but the testimony was not persuasive.
Rejected. Improper summary. Although all of the statements regarding the testimony are correct, they exclude other aspects of each individual's testimony in the record. They are accepted in what they include but are rejected overall for what is excluded. The suggested findings of the Hearing Officer in regards to the public interest test are rejected as contrary to fact. See HO #21-#35.
Rejected. Not part of the evidence presented at hearing. The evidentiary portion of these proceeding were formally closed on May 7, 1992, except for specifically named late filed exhibits.
Rejected as to reasonable assurances, accepted as to lack of analysis required by Court.
Rejected. Without knowledge as to the water management district's analysis of estuarine and coastal barrier resource.
Applicant's proposed findings of fact are addressed as follows:
Accepted. See original RO.
Accepted. See original RO.
Accepted. See Preliminary Statement.
Accepted. See Preliminary Statement.
Accepted. See Preliminary Statement.
Accepted. See Preliminary Statement.
Accepted. See original RO.
Accepted.
Accepted. See HO #2.
Accepted. See HO #2-#4.
Accepted. See HO #5-#7.
Accepted. See HO #5-#6.
Accepted. See prior RO.
Accepted. See prior RO.
Accepted.
Reject conclusion. Otherwise accepted.
Accepted.
Accepted.
Accepted. See HO #12-#13.
Accepted.
Accepted. See HO #27-#28.
Accepted. See HO #29.
Accepted. See HO #33.
Accepted.
Accepted. See HO #12.
Accepted.
Accepted.
Accepted. See HO #17.
Accepted. See HO #18.
Accepted. See HO #19.
Accepted. See HO #16.
Accepted. See HO #36.
Accepted. See HO #19.
Accepted. See HO #20.
Accepted. See original RO.
Accepted. See HO #21.
Accepted. See HO #22 and #26.
Accepted. See HO #23.
Rejected. Overbroad.
Accepted. See HO #24.
Accepted. See HO #25.
Accepted. See HO #26.
Accepted. See HO #27.
Accepted. See HO #29.
Accepted. See HO #30.
Accepted. See HO #31.
Accepted. See HO #32.
Accepted. See HO #33.
Accepted. See HO #34.
Accepted.
Accepted. See HO #35.
DER's proposed findings of fact are addressed as follows:
Accepted. See original RO.
Accepted. See Preliminary Statement.
Accepted. See original RO.
Accepted. See Preliminary Statement.
Accepted. See Preliminary Statement.
Accepted. See Preliminary Statement.
Accepted. See HO #1.
Accepted. See HO #1.
Accepted. See HO #2.
Accepted. See HO #5-#7.
Accepted. See HO #5-#6.
Accepted. See HO #6.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted
Accepted. See HO #11.
Accepted. See HO #12.
Accepted.
Accepted. See HO #14.
Accepted.
Accepted. See HO #17.
Accepted. See HO #29.
Accepted. See HO #16.
Accepted. See HO #20.
Accepted.
Accepted. See HO #7.
Accepted. See HO #20.
Accepted.
Accepted. See HO #16-#17.
Accepted. See HO #23.
Rejected. Overbroad.
Accepted. See HO #25.
Accepted. See HO #8 and #26-#28.
Accepted. See HO #9 and #29.
Accepted. See HO #27.
Accepted. See HO #26.
Accepted. See HO #30.
Accepted. See HO #31.
Accepted. See HO #32.
Accepted. See HO #33.
Rejected. Repetitive.
Accepted.
COPIES FURNISHED:
Carol Browner, Secretary Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, FL 32399-2400
Daniel H. Thompson, General Counsel Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, FL 32399-2400
Joseph Z. Fleming, Esquire Joseph Z. Fleming, P.A.
620 Ingraham Building
25 Southeast Second Avenue Miami, FL 33131
Terry E. Lewis, Esquire Kevin S. Hennessy, Esquire
Messer, Vickers, Caparello, Madsen, Lewis, Goldman & Metz
2000 Palm Beach Lakes Blvd. Suite 900
West Palm Beach, FL 33409
Francine M. Ffolkes, Esquire Assistant General Counsel Department of Environmental
Regulation
2600 Blairstone Road
Tallahassee, FL 32399
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION
THE CONSERVANCY, INC., and FLORIDA AUDUBON SOCIETY,
Petitioners, Final Order Index No. DER-93-0001
vs. OGC NO. 88-0845
DOAH NO. 88-4760
VERNON ALLEN BUILDER, INC., and FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondents.
/
FINAL ORDER AFTER REMAND
On November 20, 1992, a Hearing Officer for the Division of Administrative Hearings submitted her Recommended Order As To The Matters On Remand to the Department of Environmental Regulation ("Department" or "DER") and all other parties to this action. A copy of the Recommended Order As to Matters on Remand ("Recommended Order on Remand" or "R.O.R.") is attached as Exhibit "I."
The Florida Audubon Society ("Florida Audubon") timely filed exceptions to
:he Recommended Order on Remand. A. Vernon Allen, Builder, Inc., ("Applicant",) and the Department timely filed responses to Florida Audubon's exceptions. In addition, Florida Audubon filed a motion for oral argument, and the Conservancy Inc., ("Conservancy") moved to be realigned as an amicus curiae. The matter thereupon came before me for final agency action.
BACKGROUND
This case has a fairly complex background. On December 7, 1989, the Hearing Officer submitted her first Recommended Order in this case ("First Recommended Order" or "F.R.O.") to the Department and all other parties to this action. A copy of the First Recommended Order is published at 12 FALR 2591-99, and a copy is included as an attachment to Exhibit "III" of this Final Order After Remand. 1/ The Hearing Officer's First Recommended Order recommended that the Department grant the application for a dredge and fill permit to excavate and re-deposit approximately 1,155 cubic yards of channel bottoms in Gordon Pass from the City of Naples to Keewaydin Island for the purpose of embedding a four- inch diameter ductile iron subaqueous sewer pipeline and a duct bank of three four-inch conduits. The First Recommended Order also recommended that specific conditions be added to the permit providing that dredging shall be done by mechanical means rather than by hydraulic means, that no dredging be allowed during the weeks of July 1st through September 30th of any year, and that if rock is encountered it is to be punctured by mechanical means. (F.R.O. at 19). 2/
The Petitioners timely served exceptions to the First Recommended Order asserting, among other issues, that the Hearing Officer erred when she excluded from the hearing matters and evidence relating to environmental impacts of potential future developments on the partially developed, unbridged barrier island. On January 22, 1990, my predecessor entered the First Final Order in this case adopting the Hearing Officer's First Recommended Order and rejecting the Petitioners' exception that the Hearing Officer erred when she excluded consideration of secondary impacts of potential future development of the island.
The Petitioners appealed the First Final Order to the First District Court of Appeal, which reversed and remanded for consideration of secondary impacts of the expected development. The court held that the Hearing Officer erred when she failed to consider "the contemplated development of 75 estate homes" which were "closely linked or causally related to the proposed dredging and filling." Conservancy v. A. Vernon Allen Builder, 580 So.2d 772, 779 (Fla. 1st DCA 1991), cert. den., 591 So.2d 631 (Fla. 1st DCA 1991). The court remanded the case for further proceedings and re-evaluation of the proffered evidence on the issue of the impacts of the contemplated development of the 75 estate homes. Id. at 779. Accordingly, on October 18, 1991, I entered on Order of Remand to the Division of Administrative Hearings to hold further proceedings consistent with the opinion of the court. A copy of the Order of Remand is attached as Exhibit "II."
On remand the Department filed a "Statement of Position," on January 24, 1992, initially determining that:
After considering the secondary impacts that are likely to result from the development that will be facilitated by the proposed sewer line, together with the impacts of the sewer line itself, ...
the proposed subaqueous sewer line qualifies for a permit pursuant to Chapter 403, Florida Statutes.
A hearing on the issues on remand was held on May 4-7, 1992, in Naples, Florida. The Conservancy chose not to participate in the presentation of evidence at the hearing, and requested that it be allowed to realign as an amicus curiae so that it could file appropriate briefs. 3/
The Applicant and the Department stipulated and the Hearing Officer found that the service of the subaqueous sewer pipeline will be limited to 42 single family homes south of the Keewaydin Club and to expansion of the Club within its present property boundaries. 4/ Such expansion is limited to an expansion of the club house by 4,400 sq. ft., construction of a maintenance facility, fire house, helipad, additional tennis courts, two guest unit buildings of approximately 9,000 sq. ft. each, and a building of approximately 9,000 square feet to provide 20-21 staff units. Also expected to be constructed are a marina expansion of up to 40 shallow draft boat slips and an elevated walkway through jurisdictional wetlands to open waters to provide canoe access to Naples Bay and Dollar Bay. (Stipulation of Respondents; R.O.R., F.O.F. Nos. 1-4; R.O.R. at 15 accepting Applicant's proposed F.O.F. Nos. 10, 12).
The Respondents also stipulated and the Hearing Officer found that the Applicant must:
Limit all construction with the exception of elevated walkways and future marina expansion to upland areas beyond the jurisdiction of the DER.
Preserve all jurisdictional wetlands regulated by the DER and South Florida Water Management District with the exception of those wetlands located within areas designated for elevated walkways and marina expansion.
Execute a conservation easement preserving 2,270 acres of Keewaydin Island and adjoining wetlands south of the proposed development which protects
the north end of Rookery Bay and preserves more than three miles of island beachfront in an undeveloped state.
Eliminate all septic tanks serving the Keewaydin Club complex.
Preserve approximately 17 acres of unique upland scrub oak habitat within the center of the
Keewaydin Club complex.
Perform extensive exotic vegetation removal of Australian pines, melaleuca and Brazilian pepper vegetation throughout a substantial portion of the development site.
(Stipulation of Respondents; R.O.R., F.O.F. Nos. 6-9, 14, 26-27; R.O.R. at 15 accepting Applicant's proposed F.O.F. Nos. 11, 12).
The Applicant also proposed specific measures to minimize the impacts of the development on wildlife, including the preservation of an osprey nest zone and upland gopher tortoise habitat, control of wheeled traffic on the beach, use of indirect lighting to avoid disorientation of baby atlantic loggerhead turtles as they hatch from nests, and trapping programs to control raccoon population to protect the atlantic loggerhead turtle and gopher tortoise populations.
After the hearing, Florida Audubon requested the Hearing Officer to take official recognition of the effects of Hurricane Andrew on coastal barrier islands, and of an amendment to Department of Natural Resources Rule 18-21.003, Fla. Admin. Code, relating to leases or consent to uses of sovereign submerged lands incident to the development of undeveloped, unbridged coastal barrier islands. The Hearing Officer denied these motions.
On November 20, 1992, the Hearing Officer submitted her Recommended Order As To Matters On Remand in which she recommended that the permit be issued subject to the additional specific conditions that the use of the pipeline be limited to 42 single family homes and the currently proposed improvement to the Keewaydin Club. The Hearing Officer also recommended that the permit be conditioned on the proviso that if the City of Naples does not accept tide proposed conservation easement over 2,270 acres, the Department will have the
option to accept the easement prior to any reversion of the easement back to the property owner.
PRELIMINARY MATTERS
Florida Audubon's Request For Oral Argument
Florida Audubon has requested oral argument before the Secretary of the Department. Rule 17-103.200(3), Fla. Admin. Code, provides that the Secretary, in her discretion, may grant oral argument. I decline to do so in this case.
All parties have had an opportunity to file written pleadings in this matter. Florida Audubon has filed over 80 pages of exceptions. I have reviewed these exceptions and the responses to them and it does not appear that oral argument is necessary to clarify the issues in this case. Accordingly, the request for oral argument is denied.
Conservancy's Motion To Proceed As Amicus Curiae.
After the Hearing Officer submitted her Recommended Order As To Matters On Remand, the Conservancy filed a motion with the Department asking to be realigned as an amicus curiae. I decline to grant this motion for the same reasons that the Hearing Officer denied a similar motion before her. First of all, there is no provision under Chapter 120, Florida Statutes, or Department rules that authorize persons to participate as amicus curiae in administrative proceedings. Second, a realignment is not necessary because the Conservancy had the right as a petitioner to submit or not to submit exceptions and responses to exceptions as it wished. The Conservancy did not exercise that right.
Furthermore, since I have denied the motion for oral argument, there would be no benefit to me to allow participation of the Conservancy as amicus curiae.
Accordingly, the motion is denied.
RULINGS ON EXCEPTIONS TO FINDINGS OF FACT
The Hearing Officer's findings of fact in both the First Recommended Order and the Recommended Order As To Matters On Remand are accepted except as otherwise noted in either this Final Order After Remand or the First Final Order. The Florida Audubon has filed 80 pages of exceptions comprising 98 exceptions to findings of fact and 33 exceptions to conclusions of law. I have grouped these exceptions and ruled on them under the categories listed below.
Scope of Remand and Hearing Officer's Preliminary Statement.
Florida Audubon's Exceptions No. 1(A)-1(G), 2(A)-2(M), 3(A)-3(C), 4(A)- 4(B), 5(A)-5(C) and 9(A)(3) in whole or in part take exception to the Hearing Officer's preliminary statement of the background of the case and the scope of the issues on remand. My review of the record in this case leads me to conclude that the Hearing Officer's factual summary and statement of the issues on remand in her preliminary statement is an accurate and concise description of the background of this case and is based on matters of record and competent substantial evidence. Accordingly, I reject these exceptions. Furthermore, the Hearing Officer's preliminary statement comprises neither findings of fact nor conclusions of law. Therefore, a ruling on these exceptions is not actually required. 5/
Nature of the Proposed Development.
Florida Audubon's Exceptions 8(A)-8(I) in whole or part take exception to the Hearing Officer's description in F.O.F. Nos. 1-9 of the nature of the proposed development. These exceptions do not assert that F.O.F. Nos. 1-9 are not supported in the record by competent substantial evidence. Rather, the gist of these exceptions is that the Hearing Officer overlooked or did not give proper weight to evidence that may suggest a contrary finding. It is well settled that where a Hearing Officer's finding of fact is supported in the record by competent, substantial evidence. I am not at liberty to reject or modify it. See e.g., Florida Dept. of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987); Heifetz v. Dept. of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985); Sections 120.57(1)(b)10., and 120.68(10), Florida Statutes. Nor may I reweigh the evidence considered by the Hearing Officer.
Heifetz, supra.
My review of the record shows that the Hearing Officer's F.O.F. Nos. 1-9 are supported in the record by competent, substantial evidence. The following summarizes F.O.F. Nos. 1-9 and the competent substantial evidence in the record which supports them.
The proposed development on the island has been approved by the City of Naples and involves the refurbishment and expansion of existing Keewaydin Club facilities along with the construction of 42 single family homes within the city's jurisdictional boundaries. (F.O.F. No. 1: App. Remand Ex. 2).
The Applicant is limited in its improvement of the Keewaydin Club facilities as follows: Construction must occur within the existing club property boundaries. A maintenance facility, firehouse, helipad and additional tennis courts are to be constructed. In addition, two buildings containing guest units and a building with 21 staff units can be built. Existing buildings can be remodeled to continue in their present functions and the clubhouse can be expanded by an additional 4,400 square feet. (F.O.F. No. 2: Stipulation of Respondents; DER Remand Ex. 2.).
Marina expansion has been proposed by the Applicant, along with elevated walkways through jurisdictional wetlands, but are not essential to the proposed development. For purposes of consideration of secondary impacts the hearing on remand assumed that the marina expansion and walkways would be constructed so that the secondary impacts of the potential development could be considered during the current dredge and fill permit review. (F.O.F. No. 3: DER Remand Ex. 2; DER Remand Ex. A at 18-19).
The 42 single family homes are planned for specific locations south of the club property. These homes will be on 15,000 square foot lots. It is anticipated that they will be landscaped with native vegetation and that residents will move around the island via golf carts on cart paths. (F.O.F. No. 4: App. Remand Ex. 2 at 1-1, 1-5, 1-16, 1-38, 2-7 to 2-9, and 5-2; App. Remand Ex. 11 at 6; Tr. at 413-15).
Because the city has limited the planned development to the 42 residential units and the improvements to the club, both the Department of Natural Resources and South Florida Water Management District have approved permits specifically tailored to this development plan. (F.O.F. No. 5: App. Remand Exh. 2; App. Remand Ex. B at 6-10, App. Remand Ex. 11).
The privately owned portion of the island cannot be developed further because of the city's approval conditions for this project. These two conditions are: (1) City Ordinance 89-5843 mandates all of the property in the land options involved with future development must be annexed into the city; and
Once the property is annexed, the Applicant will give the city a conservation easement over 2,270 acres. This acreage is to be retained in its natural state and is expected to be maintained as suitable habitat for fish, plants and wildlife. (F.O.F. No. 6: App. Remand Ex. 2 at 1-3, 1-30; App. Remand Ex. 6; App. Remand Ex. 11; App. Remand Ex. A at 11-12).
The City of Naples requires the developer to eliminate all septic tanks serving the Keewaydin Club as one if its conditions for approval of the current project. This has the potential to positively impact and improve current water quality on the island. (F.O.F. No. 7: Tr. at 317, 323-24; App. Remand Ex. D at 12; App. Remand Ex. F at 13 and 15; App. Remand Ex. 2).
Specific measures have been proposed to minimize development impacts on the wildlife known to inhabit the island. Preservation of the osprey nest zone, upland gopher tortoise habitat, control of wheeled traffic on the beach, use of indirect lighting to avoid disorientation of baby atlantic loggerhead turtles as they hatch from nests, and trapping programs to control the raccoon population are prepared and ready for implementation. (F.O.F. No. 8: App. Remand Ex. 2; DER Remand Ex. A. at 22; DER Remand Ex. 2).
The vast number of natural plant species on the island will be protected in designated areas. The preservation has been planned so representatives of species of interest will continue to thrive. (F.O.F. No. 9: App. Remand Ex. F at 16; DER Remand Ex. A at 22; DER Remand Ex. 2; App. Remand Ex. 2 at 1-25, 2-7, 2-16, and 2-17).
Since the above findings of fact are supported in the record by competent substantial evidence, I can not disturb these findings of fact. I therefore reject the above noted exceptions.
The MSSW Permit and Reasonable Assurance As To Water Quality.
Florida Audubon's Exceptions No. 1(C)-1(F), 8(G)(3), 9(A), 9(I)(1)-(3) and 30(D) in whole or part take exception to the Hearing Officer's findings of fact and conclusions of law that the applicant has provided reasonable assurance that the project will not cause violations of water quality standards. (F.O.F. Nos. 10-20; Conclusion of Law No. 42). 6/ The gist of these exceptions is that the Department erred in relying on the assumption that in issuing its Management and Storage of Surface Water ("MSSW") permit, the South Florida Water Management District ("SFWMD") properly determined that the surface water management system for the island development provided reasonable assurance that the system would not result in violations of state water quality standards.
There is competent substantial evidence in the record supporting the Hearing Officer's finding that the Department did not independently evaluate whether the development's surface water management system provided reasonable assurance that it would not violate state water quality standards. (F.O.F. No. 10; Dentzau, Tr. at 700-701, 712-13). It is therefore necessary to decide whether the Department properly relied on the MSSW permit for reasonable assurances that the surface water management system would not result in water quality violations, or whether the de novo hearing rendered the reliance moot in any event.
Before the Department may issue a dredge and fill permit, it must determine that the applicant has provided reasonable assurances that the project, when considered with cumulative and secondary impacts, will not cause violations of water quality standards. Section 403.918(1), Florida Statutes. See also Conservancy v. A. Vernon Allen Builder, 580 So.2d 772 (Fla. 1st DCA 1991) and authorities cited therein. 7/
Where development is a secondary impact of a dredge and fill project, and the development will have a related surface water management system, the Department must also determine whether reasonable assurances have been provided that the surface water management system will not cause water quality violations. The first issue presented by this case is whether the Department may properly rely on a water management district's MSSW permit as the needed reasonable assurances, or whether the Department must "look behind" the water management district's MSSW permit and make a separate and independent evaluation of whether the necessary reasonable assurances have been provided.
I note that in 1989 the Legislature enacted Ch. 89-279, Section 15, Laws of Florida, which created Section 373.418, Florida Statutes, providing in part that:
It is the intent of the Legislature that stormwater management systems be regulated under this part [i.e., Part IV of Chapter 373] incorporating all of existing requirements contained in or adopted pursuant to Chapters 373 and 403.
* * *
(3) The department or governing boards may adopt such rules as are necessary to implement the provisions of this part. Such rules shall be consistent with state water policy and shall not allow harm to water resources or be contrary to the policy set forth in s. 373.016.
The rules of SFWMD require that surface water management systems not cause violations of state water quality standards. Rule 40E-4.301(1)(c), Fla. Admin. Code. Also, State water policy requires that MSSW permits not cause violations of state water quality standards. Rule 17-40.420(3)(a), (b)1.a., Fla. Admin.
Code.
Although the Department is authorized to issue MSSW permits under section 373.418, it is the intent of Chapter 373 that Department powers be delegated to the water management districts to the greatest extent practicable. Section 373.016(3), Florida Statutes. The Legislature has ,thus established a scheme where strong preference is given to the regulation of surface water management systems by Water management districts through Chapter 373 MSSW permits. 8/ This scheme includes a mechanism in which the Department, the applicant, or a substantially affected person can petition the Land and Water Adjudicatory Commission for a determination of the validity of the permit. See Section 373.114, Florida Statutes.
If the Department in the context of a Chapter 403 dredge and fill permit evaluation were to second guess and make an independent assessment of whether a surface water management system which had already received a water management district MSSW permit actually provided the necessary reasonable assurances, it
could lead to a collateral attack on the validity of the MSSW permit and defeat the Legislative intent expressed in Sections 373.418 and 373.114, Florida Statutes. I therefore conclude that where an MSSW permit issuance by a water management district has become final, the Department may accept the MSSW permit as reasonable assurance that, as to the operation of the system within the scope of the dredge and fill permit, the surface water management system will not cause violations of state water quality standards. Of course, the Department will continue to make an independent determination of whether the remaining aspects of the project, taking into consideration cumulative and secondary impacts, provide the necessary reasonable assurances. I note that in this case the MSSW permit has not yet become final, as it is pending review before the Land and Water Adjudicatory Commission. 9/
A second issue raised is whether the de novo hearing rendered moot any question as to the propriety of the Department's reliance on the MSSW permit. I note that in the remand hearing in this case expert testimony was introduced to the effect that the development's management and storage of surface water system would not cause violations of state water quality standards. (App. Remand Ex.
B, Prefiled Test. of Means at 6-12, 14-17.). Since this proceeding on remand is a de novo determination of the issues on remand, if there was any error by the Department in relying on the MSSW permit, it is moot because the Hearing Officer found that the necessary reasonable assurances were provided based on competent substantial evidence in the record. Since the Hearing Officer's finding that reasonable assurances have been provided is supported in the record by competent substantial evidence, I may not disturb it. Accordingly, the above noted exceptions are rejected.
Reasonable Assurances As to Water Quality.
Florida Audubon's Exceptions No. 1(C)-(F), 8(D)(2)-8(D)(3) , 8(E)(1), 8(F), 8(G)(1)-8(G)(3), 8(H) and 9(A)-9(K) in whole or in part take exception to the Hearing Officer's finding of fact that the Applicant has provided reasonable assurances that the proposed project, including the secondary impacts of the expected development, will not cause violations of water quality standards. (F.O.F. Nos. 10-20).
Once again, Florida Audubon's exceptions do not assert the Hearing Officer's findings of fact are not supported in the record by competent substantial evidence, but essentially contend that the Hearing Officer did not give proper weight to what Florida Audubon contends is conflicting evidence. As I noted above, the standard which I must apply in ruling on exceptions to findings of fact is whether the Hearing Officer's findings of fact are supported in the record by competent substantial evidence. Florida Dept. of Corrections; Heifetz; supra. If I find any competent substantial evidence in the record to support a finding of fact I must accept the finding of fact even if there are contrary facts in the record and even if I would have weighed the facts differently. Heifetz, supra. 10/
As noted in Part III(3) above, the Department did not independently evaluate whether the design of the project's surface water management system provided reasonable assurance that the system would not violate state water quality standards. Rather, the Department relied on the issuance of the MSSW permit by the South Florida Water Management District. (F.O.F. No. 10; Dentzau, Tr. at 700-701, 712-713).
Florida Audubon suggests that SFWMD did not in fact review the impact of the surface water management system on water quality, and that the Department's
reliance on the MSSW permit precludes a finding that the Applicant has provided reasonable assurances that the project will not violate water quality standards. I disagree for the reasons stated in Part III(3) above.
In particular, I note that the record on remand contains competent substantial evidence that the surface water management system will not result in violations of water quality standards. (App. Remand Ex. B, Prefiled Test. of Means at 6-12, 14-17). This proceeding on remand is a de novo determination of whether reasonable assurances have been provided that the project, taking into consideration the expected development of the island, will not result in violations of water quality standards. Therefore, regardless of whether the Department initially erred in relying on the MSSW permit, any error has been rendered moot by this de novo proceeding on remand in which the Applicant introduced competent substantial evidence that reasonable assurances have been provided that the stormwater management system will not cause violations of water quality standards.
As to F.O.F. Nos. 11-20, the following summarizes the findings of fact and the competent substantial evidence in the record supporting them.
In its review of the proposed development the Department identified several areas of potential adverse water quality impacts. Specifically, the Department investigated impacts from a potential marina expansion; the creation of all planned cart paths, proposed house pad construction, boardwalk and canoe launches, exempt docks, and beach renourishment. (F.O.F. No. 11: DER Remand Ex. 2; DER Remand Ex. A, Prefiled Test. of Dentzau at 7-9, 11-25; DER Remand Ex. B, Prefiled Test. of Llewellyn at 5-13).
The marina expansion, boardwalks, and canoe launches will impact existing jurisdictional mangroves, thereby affecting water quality. If later permitted, however, the Applicant can reasonably minimize such impacts and offset them in a suitable fashion. (F.O.F. No. 12: DER Remand Ex. A, Prefiled Test. of Dentzau at 20-21; DER Remand Ex. 2). 11/
The primary impacts from exempt docks are minimized by the development plan. The secondary potential impacts are negligible. (F.O.F. No. 13: DER Remand Ex. A, Prefiled Test. of Dentzau at 20-21; DER Remand Ex. 2).
The cart paths will not be paved. Urban runoff from these surfaces will have an insignificant quantity of pollutants that are accounted for in the surface water management system design. (F.O.F. No. 14: App. Remand Ex. F, Prefiled Test. of McWilliams at 14; Applicant's Remand Ex. B, Prefiled Test. of Means at 6-12, 16; Applicant's Remand Ex. D, Prefiled Test. of Missimer at 11).
The secondary impacts from the house pad construction and the urban runoff from associated impervious surfaces are minimal. Nevertheless, they are accounted for in the surface water management system design. (F.O.F. No. 15: Applicant's Remand Ex. 2 at 1-16, 5-2; App. Remand Ex. B, Prefiled Test. of Means at 6-10; App. Remand Ex. D, Prefiled Test. of Missimer at 11-12; App. Remand Ex. F, Prefiled Test. of McWilliams at 13-14).
The agreements entered into between the Applicant, the City of Naples, and the Department of Natural Resources prohibit any additional shore hardening. The beach management plan includes periodic beach renourishment. (F.O.F. No. 16: DER Remand Ex. A, Prefiled Test. of Dentzau at 16; App. Remand Ex. 11; App. Remand Ex. E at 10, Prefiled Test. of Stephen at 10; Tr. at 368-369).
A review of the surface water management plan presented at the remand hearing reveals that the potential for adverse secondary impacts is significantly limited due to the low density and minimal infrastructure for the proposed development. The 42 new homes will be spread over 430 acres. A series of swales, collection ponds and surface water treatment areas have been designed to minimize the impacts of development on the surface water. The use of fertilizer or pesticides by residents will be strictly limited. (F.O.F. No. 17: App. Remand Ex. B, Prefiled Test. of Means at 6-10; App. Remand Ex. D, Prefiled Test. of Missimer at 11-12; App. Remand Ex. F, Prefiled Test. of McWilliams at 12-19; App. Remand Ex. 6).
The surface water management system meets the Department's water quality standards. (F.O.F. No. 18: App. Remand Ex. B, Prefiled Test. of Means at 6-14; App. Remand Ex. 6; Tr. at 185-89, 197-215).
Potable water is already conveyed to the island from the city. Once the septic tanks are removed, the overall affect of the planned development on ground water will be negligible. (F.O.F. No. 19: DER Remand Ex. 2; DER Remand Ex. A, Prefiled Test. of Dentzau at 16, 23-24).
I conclude that the Hearing Officer's F.O.F. Nos. 10-20 are supported in the record by competent substantial evidence and therefore I will not disturb them. Accordingly, the above noted exceptions are rejected.
Reasonable Assurances As to Public Interest Test.
Florida Audubon's Exceptions No. 10(A)-10(O)(2) in whole or in part take exception to the Hearing Officer's findings of fact that reasonable assurances have been provided that the proposed project, taking into consideration the cumulative and secondary impacts, is not contrary to the public interest. (F.O.F. Nos. 21-34). As with the previous exceptions, Florida Audubon is essentially arguing that the Hearing Officer improperly weighed the evidence. My task is to determine whether the Hearing Officer's findings of fact are supported in the record by competent substantial evidence. If they are, I may not reject them.
The following summarizes F.O.F. Nos. 22-33 and the competent substantial evidence in the record supporting them.
All new construction is required to meet flood protection standards even though the owners will not be eligible for flood insurance. Home construction standards take into consideration many of the effects of hurricanes. (F.O.F. No. 22: App. Remand Ex. 2: App. Remand Ex. F at 15).
The hurricane evacuation plan has been approved by the city and Collier County emergency management authorities. (F.O.F. No. 23: App. Remand Ex. 2 at Ib, 1-29; App. Remand Ex. A at 17-21).
Public funds are protected as the proposed development is not dependent upon federal, state or local funding or insurance. The city has passed an ordinance that requires property owners to acknowledge that the city has no liability for rebuilding any damaged infrastructure or improvements. The monetary risk associated with the development will be borne by the developer and the residents. (F.O.F. No. 24: App. Remand Ex. 2 at 1-3 to 1-8).
The 42 single family homes will be located within the island's Coastal Barrier Resources Act (CBRA) unit boundaries. The evidence adduced at hearing
indicated that the CBRA designation will not be jeopardized by the proposed development. (F.O.F. No. 25: Tr. at 106-7; App. Remand Ex. A at 21-33; App. Remand Ex. 3; App. Remand Ex. 4; App. Remand Ex. E at 16).
The proposed development will have negligible secondary impacts on fish and wildlife. The project protects or enhances various fish and wildlife habitats. All wetlands will be preserved. The beach dune system will be improved through removal of exotics and dune restoration. As a result, the interdependence of the estuarine area on the coastal barrier resource will not be adversely affected by the project. (F.O.F. No. 26: DER Remand Ex. A at 15- 16; App. Remand Ex. E at 19; App. Remand Ex. F at 10, 13-14, 15-16; Tr. at 414, 825-26, 829-30).
Gopher tortoises will be relocated to an upland preserve on the same island. The removal of exotic plants, the introduction of native herbaceous plants and control of the raccoon population should positively effect the gopher tortoise population. (F.O.F. No. 27: DER Remand Ex. 2; DER Remand Ex. A at 21- 22; App. Remand Ex. F at 15-16; Tr. at 855-60).
Indirect lighting and the reduction of raccoons should benefit the atlantic loggerhead turtle population. (F.O.F. No. 28: DER Remand Ex. 2; DER Remand Ex. A at 22; App. Remand Ex. 2).
Threatened or endangered plant species on the site include golden leather fern, assorted orchids and bromeliads, golden polypody fern, shoestring fern and prickly pear cactus. Representatives of these species will be protected in preserve areas, according to conditions in the development plan approved by the city and conditions established in other permits. (F.O.F. No. 29: DER Remand Ex. 2; DER Remand Ex. A at 22; App. Remand Ex. F at 16).
The proposed project preserves all identified habitats which contribute to marine productivity. Low density development and other limitations already placed on the project were designed to minimize the adverse impacts on fishing and marine productivity. Recreational values will be enhanced by the project because of the proposed canoe launches and habitat restoration. (F.O.F. No. 30: App. Remand Ex. F at 16).
The development is permanent in nature. Design limitations on the project, existing permit conditions and the low density aspect of the development combine to assure that the project has limited adverse impacts. (F.O.F. No. 31: App. Remand Ex. 2; App. Remand Ex. F at 17-18; Tr. at 872-73).
There will be no adverse impacts on historical or archaeological resources. The Caloosa Indian Midden located on the property is to be preserved undisturbed. The Keewaydin Club Lodge is a designated structure on the National Historical Register and will be maintained as a historical building. (F.O.F. No. 32: DER Remand Ex. 2; DER Remand Ex. A at 22; App. Remand Ex. A at 16-17).
Except for the creation of 42 single home residencies for people willing to spend a million dollars for a home on an island with access only by boat or helicopter and all monetary risk for infrastructure and improvements damaged by any cause, the current condition of the island will not be changed significantly. All high quality resources and their functions have been preserved by project design. (F.O.F. No. 33: App. Remand Ex. F at 17-18; Tr. at 872-73).
The above findings of fact which are supported in the record by competent substantial evidence support the Hearing Officer's F.O.F. No. 21 that the project will not adversely affect public health, safety or welfare or the property of others.
Since the above noted findings of fact are supported in the record by competent substantial evidence, I shall not disturb them and the above noted exceptions are therefore rejected. However, as to the Hearing Officer's "finding" that the project is not contrary to the public interest, this is ultimately a conclusion of law for which I have the final authority and responsibility to determine. 1800 Atlantic Developers v. Depart. of Environmental Regulation, 552 So.2d 946 (Fla. 1st DCA 1989), rev. den., 562 So.2d 345 (Fla. 1990); Harloff v. City of Sarasota, 575 So.2d 1324 (Fla. 2d DCA 1991), rev. den. 583 So.2d 1035 (Fla. 1991). Although the factors found in the Hearing Officer's F.O.F. Nos. 26-30 help alleviate the adverse impacts of the project, when I balance the public interest criteria I conclude that the project would be contrary to the public interest without the mitigation offered by the preservation conservation easement to be placed over 2,270 acres. When I take the mitigation into consideration, I conclude that the project, taking into consideration the cumulative and secondary impacts, is not contrary to the public interest.
Barrier Island -- Executive Order 81-105 and Designation Under The Federal Coastal Barrier Island Resources Act (CBRA).
Florida Audubon's Exceptions No. 1(G), 3(A)-3(C), 5(A), 8(D)(1), 8(E)(1),
9(A)(3), 9(B)-9(D), 10(E)(1) (3), 10(J) 10(N)(3), 17 (A)-17(D), 21, 22, 24 and
25 in whole or in part take exception to the Hearing Officer's finding of fact that the federal Coastal Barrier Resources Act (CBRA) designation of Keewaydin Island will not be jeopardized by the proposed development (F.O.F. No. 25) and to the Hearing Officer's conclusion of law that the development is not prevented by Governor Graham's Executive Order No. 81-105. (C.O.L. No. 43).
My review of the record shows that competent substantial evidence was admitted supporting the fact that Keewaydin Island's Coastal Barrier Resource System ("CBRS") unit designation does not prohibit the development of Keewaydin Island. It just precludes federal funds to facilitate such development.
Therefore, that development would not jeopardize the CBRS unit designation. (App. Remand Ex. 3; App. Remand Ex. 4; App. Remand Ex. A at 21-23; App. Remand Ex. E at 16; Tr. at 106-107) Accordingly, I shall not disturb this finding of fact.
Although I note that Executive Order No. 81-105 may have some weight in the balancing of the public interest criteria under Section 403.918(2), Florida Statutes, I concur with the Hearing Officer's conclusion of law that Executive Order No. 81-105 does not per se preclude the development of coastal barrier islands where government funds will not be used to create the infrastructure that promotes development on the barrier island.
In view of the above, the above noted exceptions are rejected.
Exceptions Lacking Particularity.
Florida Audubon Exceptions No. 6 and 7 lack sufficient particularity. Rule 17-103.200(1), Fla. Admin. Code, provides in part:
Exceptions shall state with particularity the basis for asserting that the Hearing Officer erred in making or omitting specific findings of fact, conclusions of law, or a recommendation ...
The reason for the above requirement is clear. It is impossible for the parties to respond, or for me to rule, when the basis for a purported error is not clearly stated. Exceptions No. 6 and 7 fail to state how the Hearing Officer has erred in a finding of fact, conclusion of law, or recommendation. Such exceptions do not comply with Rule 17-103.200(1), Fla. Admin. Code, and therefore must be rejected. For this reason, I reject these exceptions.
RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW
The Hearing Officer's conclusions of law in both the First Recommended Order and the Recommended Order As To Matters On Remand are accepted except as otherwise noted in either this Final Order After Remand or the First Final Order as modified by the court's opinion in Conservancy v. A. Vernon Allen, Builder, supra.
Scope of Remand.
Florida Audubon's Exceptions No. 11-14 in whole or in part take exception to the Hearing Officer's Conclusions of Law No. 36-39. The gist of these exceptions is that the Hearing Officer misconstrued the scope of the remand and consequently lacked jurisdiction. There is no merit in the contention that the Hearing Officer lacked jurisdiction. Jurisdiction was conferred by the court's mandate that the matter be remanded to the Division of Administrative Hearings for further proceedings consistent with the court's opinion. See Conservancy v.
A. Vernon Allen Builder, 580 So.2d 772 (Fla. 1st DCA 1991).
Nor do I agree that the Hearing Officer misconstrued the scope of remand.
The opinion of First District Court of Appeal stated:
In the instant case, we disagree with appellee that the contemplated development of 75 estate homes is speculative and is not closely linked or causally related to the proposed dredging and filling. We perceive there to be little difference between the Department's aforestated need to "consider what will be at the end of the bridge or road," and the necessity here to consider what will be at the end of the pipeline, especially when the evidence, proffered or admitted, suggests that the development enabled by the dredge and fill permit could have devastating environmental impacts. Such evidence would be highly relevant to the Department's consideration of whether the applicant has carried its burden of giving reasonable assurances under section 403.918 that water quality standards will not be violated and the project is not contrary to the public interest. Thus, the
Department's consideration of the proposed development solely in relation to the design of the pipeline system itself neglected the necessity in this case to consider potential secondary impacts.
Consequently, it was error for the Hearing Officer to exclude the evidence proffered by appellants for the reasons set forth in her recommended order.
Accordingly, this cause must be reversed and remanded for further proceedings and re-evaluation of the proffered evidence in a manner consistent with this opinion. 12/
Conservancy v. A. Vernon Allen Builder, 580 So.2d at 779 (quoting McCormick v. City of Jacksonville, (12 FALR 980, 981 (DER Final Order, Jan. 22, 1990); footnote omitted). I conclude that the Hearing Officer properly construed the scope of remand to require the consideration of "the secondary impacts associated with the development of Key Island, which the Court determined were closely linked and causally related to the proposed permit." (R.O.R., C.O.L. No. 37)
I also note that this administrative proceeding on remand is a de novo determination of the issue of the secondary impacts, and that Florida Audubon has fully participated and submitted testimony and evidence on the issue of the secondary impacts. I therefore conclude that the administrative hearing fully complied with the scope of remand, and accordingly reject the above noted exceptions.
Reasonable Assurances As To Water Quality.
Exceptions No. 14, 15(A)-15(C), 16, 18, 24 and 30(D) in whole or part take exception to the Hearing Officer's conclusions of law that reasonable assurances have been provided that the project and its cumulative and secondary impacts will not cause violations of water quality standards. (C.O.L. Nos. 40, 41, 42).
Based on the Hearing Officer's findings of fact which I have accepted, I conclude that the project, taking into consideration cumulative and secondary impacts, provides reasonable assurance that water quality standards will not be violated. I therefore reject the above noted exceptions.
Reasonable Assurances As To The Public Interest Test.
Florida Audubon's Exceptions No. 15(A)-15(C), 16, 17, 18, and 21-24 take exception to the Hearing Officer's conclusions of law that reasonable assurance has been provided that the project together with its cumulative and secondary impacts are not contrary to the public interest. (C.O.L. No. 43)
As I noted above, the determination of whether reasonable assurances have been provided as to the public interest test is ultimately a conclusion of law for which I have the final authority and responsibility to determine. 1800 Atlantic Developers v. Depart. of Environmental Regulation, 552 So.2d 946 (Fla. 1st DCA 1989), rev. den., 562 So.2d 345 (Fla. 1990). Based on the Hearing Officer's findings of fact which I have accepted, I conclude that the project, taking into consideration the cumulative and secondary impacts and the offered mitigation of the preservation conservation easement over 2,270 acres, has
provided reasonable assurance that the project is not contrary to the public interest. Therefore the above noted exceptions are rejected.
Barrier Island -- Executive Order 81-105 and Designation Under The Federal Coastal Barrier Island Resources Act (CBRA).
Florida Audubon's Exceptions No. 17(A)-(D), 21, 22, 24 and 25 in whole or in part take exception to the Hearing Officer's conclusions of law that Executive Order No. 81-105 and the Federal Coastal Barrier Island Resource Act do not preclude the proposed development on Keewaydin Island. Based on the Hearing Officer's findings of fact which I have accepted, and for the reasons stated in Part III(6) above, I concur with the Hearing Officer's conclusions of law and reject the above noted exceptions.
Evidentiary Issues
Official Recognition of Hurricane Andrew and Amendment to Rule 28-21.003
Florida Audubon's Exceptions No. 25, 30(A)-30(C) do not take exception to any specific finding of fact or conclusion of law. Rule 17-103.200(1) requires rulings only to exceptions to findings of fact, conclusions of law or recommendations. Although lacking in specificity, these exceptions apparently assert that the Hearing Officer erred in an implied conclusion of law when she declined to take official recognition of (1) an amendment to Department of Natural Resources Rule 18-21.003 relating to leases or consent to uses of sovereign submerged lands incident to the development of undeveloped coastal barrier islands, and (2) the effects of Hurricane Andrew on Keewaydin Island.
The Hearing Officer, relying on the authority of Collier Medical Center v. Department of Health and Rehabilitative Services, 462 So.2d 83, 86 (Fla. 1st DCA 1985), denied these motions on the ground that the evidentiary hearing had ended.
I note that the decision to give official recognition, like judicial notice, lies in the discretion of the Hearing Officer. See ., Huff v. State,
495 So.2d 145, 151 (Fla. 1986)("It is upon the wisdom and discretion of the judges of our courts that the doctrine of judicial notice must rest."). Even assuming that the Hearing Officer's decision to deny official recognition is an implied conclusion of law to which an exception is appropriately made, I cannot say that I believe the Hearing Officer abused her discretion in declining to take the requested official recognition. Florida Audubon has suggested no competent substantial evidence in the record which would be a basis for determining whether the amended Rule 18-21.003 would be applicable to the proposed development on Keewaydin Island. Furthermore, even if the rule was applicable to Keewaydin Island, the effect of the rule would be relevant to the necessary permit, easement or consent to use from the Board of Trustees of the Internal Improvement Trust Fund. The Department's permit does not remove the applicant's need for a Board of Trustees permit over sovereign submerged lands. 13/
As to the request for official recognition of Hurricane Andrew, it cannot be said that it is generally known and not subject to dispute how Hurricane Andrew would have effected Keewaydin Island if the proposed project has been in place. Therefore official recognition of Hurricane Andrew is neither appropriate nor material for the purposes sought by Florida Audubon.
Accordingly, I conclude that the Hearing Officer did not abuse her discretion in denying official recognition. I therefore reject the above noted exceptions.
Official Recognition of Facts In the MSSW Permit Proceeding Before SFWMD.
Florida Audubon's Exception No. 27, although lacking in specificity, appears to be taking exception to the Hearing Officer's implicit denial of taking official recognition of facts in the administrative proceedings of another case, i.e., the MSSW permit proceedings before the SFWMD. Apparently Florida Audubon is contending that the Hearing Officer erred in not taking official recognition of Florida Audubon's assertion that the SFWMD did not consider impacts on water quality when it issued the MSSW permit. As I noted in my discussion in Parts III(3) and III(4) above, the Department may properly rely on the issuance of an MSSW permit as reasonable assurance that the surface water management system will not cause violations of water quality standards.
Regardless of whether the SFWMD properly considered water quality impacts when it issued the MSSW permit, in this case the issue is moot because a de novo proceeding was held where the record contains competent substantial evidence that the surface water management system provides reasonable assurance that the system will not cause violations of water quality standards. This exception is therefore rejected.
Miscellaneous Exceptions.
Exception 13 takes exception to the Hearing Officer's C.O.L. No. 38 describing the nature of the proffers made in the previous hearing. Since the hearing on remand was a de novo hearing on the issue of secondary impacts of the island development in which Florida Audubon presented all of its evidence related to the issue, I find no error that is relevant or material to this proceeding. Exception 13 is therefore rejected.
Exception 14 takes exception to the Hearing Officer's C.O.L. No. 39 holding that the Department acted in good faith in its pre-hearing review of the information regarding the development. Once again, since the hearing was a de novo proceeding to establish the secondary impacts of the development I find no relevant or material error. Exception 14 is therefore rejected.
Exceptions No. 19(A)-19(C) take exception to the Hearing Officer's
C.O.L. No. 45, which concluded that the Department witnesses who disagreed with the proposed project did not apply the tests set forth in the statutes as did the Department witnesses who actually made the initial determination of whether the permit should issue. This exception also looses sight of the fact that this remand proceeding is a de novo determination of the facts. Florida Audubon presented witnesses who opposed the permit, and the Applicant presented witnesses and evidence in favor of the permit. The Department presented witnesses as to the Department's initial determination of the matter. I find no error and reject the exception.
Exceptions 20(A) to 20(C) taking exception to the Hearing Officer's recommendations. These exceptions essentially are attacks on the Hearing Officer's findings of fact and conclusions of law as to reasonable assurances. The exceptions are denied for the same reasons stated in Parts III(3), (4) and
(5) and IV(2) and (3).
Exceptions 28 and 29 take exception to the Hearing Officer's acceptance of proposed findings of fact in the proposed recommended orders of the Applicant
and the Department. These exceptions are redundant and are rejected for the same reasons stated in Parts III and IV(1)-(5) above.
CONCLUSION
This case was remanded to determine the proposed project's secondary impacts of the development on Keewaydin Island. The Hearing Officer held a hearing and submitted a recommended order concluding that the project, taking into consideration the secondary impacts of the development, provided reasonable assurances that the project would not cause violations of water quality standards and was not contrary to the public interest. The Hearing Officer recommended that the permit should issue with certain additional specific conditions. I accept the Hearing Officer's findings of fact and conclusions of law except that, for the reasons noted above in Part III(5), I conclude that the proposed mitigation of a preservation conservation easement over 2,270 acres is necessary for the project to be not contrary to the public interest.
ACCORDINGLY IT IS ORDERED THAT:
Florida Audubon's motion for oral argument is DENIED.
The Conservancy's motion to be realigned as an amicus curiae is DENIED.
Except as is otherwise stated in this Final Order After Remand, the Hearing Officer's Recommended Order As To Matters On Remand is adopted and incorporated herein by reference.
A. Vernon Allen, Builder, Inc.'s Permit Application No. 111486645 shall be issued forthwith subject to the following additional specific conditions:
Specific Condition No. 6 shall be modified to read as follows:
Dredging shall be done by mechanical means (no hydraulic dredging) as there does not appear to be an appropriate area for discharge retention available. No dredging shall be allowed during the weeks of July 1st through September 30 of any year. If rock is encountered during the dredging activity along the proposed pipeline corridor, the rock is to be punctured by mechanical means.
The use of the pipeline shall be limited to 42 single family homes, the proposed improvements to the Keewaydin Club as stated in the Recommended Order As To Matters On Remand, Supplemental Findings of Fact No. 1-4.
The further development of the island shalt be limited and preservation and wildlife protective measures taken as stated in this Final Order After Remand and the Recommended Order As To Matters On Remand, Supplemental Findings of Fact No. 2, 4, 6-9, 14, 16-17, 19, 22, and 26-29.
The applicant will convey to the City of Naples the proposed conservation easement over 2,270 acres as set forth in the Recommended Order As To Matters On Remand. If the City does not accept the proposed conservation easement, the applicant will give the Department the option to accept the same conservation easement prior to any reversion of the easement to the property owner. The Department shall have 180 days to exercise such option. Notice of the option to the Department shall be given in writing by registered mail,
return receipt requested, to the Director, Division of Water Management, Department of Environmental Regulation, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400.
NOTICE OF RIGHTS
Any party to this Final Order has the right to seek judicial review of this 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 4th day of January, 1993, in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
CAROL M. BROWNER
Secretary
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
FILING AND ACKNOWLEDGMENT
FILED, on this date, pursuant to s. 120.52 Florida Statutes, with the designated Department Clerk, receipt of which is hereby acknowledged.
1/4/93
Clerk
ENDNOTES
1/ Exhibit "III" is a copy of the first final order ("First Final Order" or "F.F.O.") entered in this case published at 12 FALR 2582-99. Exhibit "II" is the Department's Order of Remand.
2/ Additional particulars of the subaqueous sewer pipeline project are set forth in my First Final Order. (See Exhibit "III").
3/ The Hearing Officer appropriately entered an order on March 10, 1992, denying the Conservancy's motion to realign on the ground that it was unnecessary because the Conservancy was free to chose to submit only a recommended order. The Conservancy subsequently joined in Florida Audubon's proposed recommended order.
4/ The 42 single family homes will be constructed on 15,000 sq. ft. lots (0.344 acre) spread over 430 acres. The density of the housing will thus be less than one unit per 10 acres. (R.O.R., F.O.F. Nos. 4, 17).
5/ Rule 17-103.200(1), Fla. Admin. Code, allows exceptions to "findings of fact, conclusions of law, or a recommendation." Since a Hearing Officer's preliminary statement is none of these, exceptions to it need not be ruled on.
6/ See also Part III(4) below for additional exceptions related to reasonable assurances as to water quality.
7/ In addition, of course, the applicant must also satisfy the public interest test under Section 403.918(2), Florida Statutes, as well as satisfy the requirements under the cumulative and secondary impacts doctrines and any mitigation requirements.
8/ The Department has delegated to the SFWMD the Department's authority to regulated stormwater under Rule 17-25, Fla. Admin. Code. See Rule 17- 101.040(12)(a)1., Fla. Admin. Code.
9/ Land and Water Adjudicatory Case No. RFR-92-006, Florida Audubon Society v. South Florida Water Management District, et al. This case is presently set for oral argument before the Commission on March 9, 1993.
10/ I do not imply that I would weigh these facts differently. In fact, I concur with the Hearing Officer's findings.
11/ I note that the Hearing Officer's F.O.F. No. 12 has a typographical error in that it refers to "nonjurisdictional" mangroves. The Hearing Officer's acceptance of DER's proposed F.O.F. Nos. 19 and 20 in DER's proposed recommended order clearly shows that she intended to refer to "jurisdictional" mangoves.
12/ The original proposed development called for 75 estate homes. As noted above, this has been scaled back to 42 estate homes over 430 acres.
13./ I note that this is still the case even after the memorandum of agreement between the Department and the Board of Trustees executed on November 23, 1992. Although not part of the record in this case, that Agreement is not applicable to a project which is "contiguous to an unbridged, undeveloped coastal barrier island as defined in Rule 18-21.003, F.A.C."
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been furnished to the following person on this 4th day of January, 1993:
BY HAND DELIVERY TO:
The Honorable Veronica E. Donnelly Hearing Officer
Division of Administrative Hearings DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
Clerk, Division of Administrative Hearings DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
Francine M. Ffolkes Assistant General Counsel State of Florida Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
AND BY U.S. MAIL TO:
Joseph Z. Flemming, Esquire Terry E. Lewis, Esquire 620 Ingraham Building Kevin S. Hennessy, Esquire
25 Southeast Second Avenue Messer, Vickers
Miami, Florida 33131 2000 Palm Beach Lakes Blvd.
Suite 900
West Palm Beach, Florida
33409
Robert G. Gough
Assistant General Counsel State of Florida, Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 3299-2400 Florida Bar No. 410489 (904)488-9730
| Issue Date | Proceedings |
|---|---|
| Jan. 05, 1993 | Final Order After Remand filed. |
| Dec. 21, 1992 | A. Vernon Allen Builder, Inc.'s Response to Florida Audubon Society'sExceptions to the Recommended Order as to Matters on Remand filed. |
| Dec. 21, 1992 | A. Vernon Allen Builder, Inc.'s Response to the Conservancy, Inc.'s Request to Proceed as Amicus Curiae filed. |
| Dec. 18, 1992 | Response to Florida Audubon Society`s Request for Oral Argument filed. |
| Dec. 07, 1992 | Exceptions of Petitioner Florida Audubon Society to the Recommended Order As to Matters on Remand Dated November 20, 1992 filed. |
| Dec. 07, 1992 | Notice of Petitioner Florida Audubon Society of the Previous Filing of the Record and Exhibits in This Matter With The Department of Environmental Regulation; Request of Petitioner Florida Audubon Society for Oral Argument; Request of the Conservancey, In |
| Nov. 20, 1992 | Recommended Order As To Matters On Remand sent out. CASE CLOSED. Hearing held May 4-7, 1992. |
| Nov. 19, 1992 | Order On all Pending Matters sent out. |
| Nov. 12, 1992 | Notice of Florida Audubon Society of Filing Additional Authority filed. |
| Oct. 21, 1992 | Reply of Florida Audubon Society to the "A. Vernon Allen Builder Inc.`s Response to the Florida Audubon Society`s Request for Judicial or Official Notice of Hurricane Andrew" filed. |
| Oct. 08, 1992 | A Vernon Allen Builder Inc.'s Response to the Florida Audubon Society's Request for Judicial or Official Notice of Hurricane Andrew filed. |
| Oct. 02, 1992 | (Petitioner) Request of Florida Audubon Society for Judicial, Or Official, Notice of Hurricane Andrew filed. |
| Aug. 17, 1992 | Order Denying Request for Judicial Notice by Hearing Officer sent out. |
| Aug. 11, 1992 | A. Vernon Allen Builder, Inc.'s Response to Florida Audubon Sopciety's Request for Judical Notice filed. |
| Aug. 03, 1992 | Respondent Department of Environmental Regulation`s Proposed Recommended Order on Remand filed. |
| Aug. 03, 1992 | Florida Audubon Society`s Request for Judical Notice; Proposed Recommended Order of Petitioner Florida Audubon Society filed. |
| Jul. 31, 1992 | Stipulated Motion of Petitioner Florida Audubon Society Extending The Filing Date Until Monday, August 3, 1992 filed. |
| Jul. 31, 1992 | Respondent, A. Vernon Allen Builder, Inc.`s Proposed Findings of Fact, Conclusions of Law and Recommended Order for Proceedings of Remand filed. |
| Jul. 28, 1992 | Order Allowing the Additional Extension sent out. (until 7/31/92) |
| Jul. 24, 1992 | Motion of Petitioner Florida Audubon Society for an Additional Extension of The Time Within Which to Submit the Proposed Findings of Fact and Conclusions of Law and any Memoranda filed. |
| Jul. 15, 1992 | Stipulated Motion of Petitioner Florida Audubon Society for an Additional Extension of the Time Within Which to Submit the Proposed Findings of fact and Conclusions of Law and Any Memoranda filed. |
| Jul. 02, 1992 | Order Extending Time Limit for Submission of Proposed Recommended Orders sent out. (due 7/17/92) |
| Jun. 25, 1992 | (Petitioner) Stipulated Motion of Petitioner Florida Audubon Society for an Extension of the Time Within Which to Submit the Proposed Findings of Fact and Conclusions of Law and any Memoranda filed. |
| Jun. 17, 1992 | Transcript (Vols 1-7) filed. |
| Jun. 01, 1992 | Order Of Time Extension sent out. (motion granted) |
| May 28, 1992 | Notice of Petitioner Florida Audubon Society Confirming the Filing ofAdditional Materials and Request That Such Additonal Materials Be Admitted Into Evidence w/Exhibits 1-12 filed. |
| May 18, 1992 | Motion of Florida Audubon Society For An Extension of The 10 Day Period Within Which to File The Supplemental Exhibits filed. |
| May 04, 1992 | Notice by Florida Audubon Society of Taking the Deposition of Ross McWilliams filed. |
| May 01, 1992 | (A Vernon Allen Builder) Motion for A View filed. |
| May 01, 1992 | Prefiled Testimony of Michael W. Dentzau; Prefiled Testimony of JanetG. lewellyn; & Cover Letter to VED from F. Ffolkes dated 4/30/92 filed. |
| Apr. 29, 1992 | State of Florida Department of Environmental Regulation's Notice of Filing Prefiled Expert Testimony; Testimony of Michael W. Dentzau; Testimony of Janet G. Llewellyn filed. |
| Apr. 29, 1992 | Respondent A. Vernon Allen Builder, Inc.'s Notice of Exhibits and Expert Direct Testimony w/(TAGGED) Exhibits and Expert Direct Testimony filed. |
| Apr. 29, 1992 | Notice of Filing and Request by Petitioner Florida Audubon Society w/Composite Exhibits 1&2 filed. |
| Apr. 27, 1992 | Order Granting Extension Of Time For Submission of Prehearing Stipulation sent out. (joint stipulations or unilateral stipulations can be served on the new agreed deadline of 4-24-92) |
| Apr. 27, 1992 | Letter to Thomas J. Kress from Kevin S. Hennessy (re: providing courtreporter) filed. |
| Apr. 24, 1992 | (joint) Stipulation of Respondents, A. Vernon Allen Builder, Inc. andDepartment of Environmental Regulation filed. |
| Apr. 24, 1992 | Petitioner's List of Witnesses; Unilateral Prehearing Statement of Petitioner Florida Audubon Society filed. |
| Apr. 22, 1992 | Notice of Appearance of Counsel for Department of Environmental Regulation filed. |
| Apr. 21, 1992 | (Petitioner) Stipulated Motion for An Extension of Time Within Which to Submit the Prehearing Stipulation filed. |
| Apr. 20, 1992 | Order From Prehearing Conference And Third Amended Notice of Final Hearing sent out. (hearing set for May 4-8, 1992; 9:00am; Naples) |
| Apr. 17, 1992 | Order from Prehearing Conference and Third Amended Notice of Final Hearing (for HO signature) filed. |
| Apr. 13, 1992 | (Respondent) Corrected Witness List filed. |
| Apr. 10, 1992 | (Respondent) Witness List filed. |
| Apr. 08, 1992 | Order From Prehearing Conference sent out. (parties will draft the issues to be decided at hearing by 4-10-92 and circulate them between themselves, final hearing dates will no longer include May 19-21, 1992) |
| Apr. 06, 1992 | CASE STATUS: Hearing Held. |
| Apr. 03, 1992 | Renotice by Florida Audubon Society of Taking Deposition of The Department of Environmental Regulation filed. |
| Mar. 19, 1992 | Second Amended Notice of Hearing sent out. (hearing set for May 4-7, May 18-29, 1992, excluding weekends and holidays; Locations after 5-7-92, will be determined after discovery is completed.) |
| Mar. 17, 1992 | Notice by Florida Audubon Society of Taking Depositions of The Department of Environmental Regulation filed. |
| Mar. 10, 1992 | Order Allowing the Censervancy to Participate in Part in the Proceedings; Order Allowing Prefiled Testimony; Order Preserving Petitioner's Opportunity to Possibly Amend or Supplement Issues if Material Disputes not Agreed Upon Via Prehearing Stipulation s |
| Feb. 20, 1992 | (Respondent) Motion to Prefile Direct Testimony; Notice of Case Status Conference filed. |
| Feb. 17, 1992 | (Respondent) Response to Florida Audubon Society's Motion for Leave to Amend or Supplement the Petition filed. |
| Feb. 10, 1992 | Motion of Florida Audubon Society for Leave to Amend or Supplement the Petition filed. |
| Feb. 07, 1992 | (Respondent) Response to Petitioner's Motion for Entry of an Order Allowing It to Realign Itself as an Amicus Curiae filed. |
| Feb. 07, 1992 | Amended Notice of Final Hearing sent out. (hearing set for 5/4-7 & 5/11-29/92) |
| Jan. 31, 1992 | Motion of Petitioner the Conservancy, Inc. For Entry of an Order Allowing It to Relign Itself As an Amicus Curiae w/(unsigned) Order Granting Realignment of Petitioner the Conservancy, Inc. As An Amicus Curiaein Support of the Pet itioner Florida Audubon |
| Jan. 30, 1992 | (DER) Response to Notice of Incomplete Filing that was inadvertently omitted from the "Statement of Position" filed. |
| Jan. 28, 1992 | Order Granting Continuance and Rescheduling Final Hearing and Remand Aspects of the Case sent out. (hearing rescheduled for may 4-7, 1992;Talla). |
| Jan. 28, 1992 | Notice of Incomplete Filing sent out. |
| Jan. 24, 1992 | Statement of Position of the State of Florida Department of Environmental Regulation filed. |
| Jan. 15, 1992 | (original & one) Transcript (2 Vols) w/Notice of Filing filed. (From Joseph Z. Fleming) |
| Jan. 15, 1992 | Motion of Petitioners For Entry of an Order Resetting the Hearing Dates filed. |
| Dec. 18, 1991 | Notice of Hearing sent out. (hearing set for Dec. 27, 1991; 10:00am;via telephone). |
| Dec. 16, 1991 | (Vernon Builders) Preliminary Exhibit List filed. |
| Dec. 16, 1991 | (DER) Witness List filed. |
| Dec. 13, 1991 | (Respondent) Witness List filed. |
| Dec. 13, 1991 | Petitioners Submissions as to the Exhibits List and Witnesses; & Cover Letter from J. Fleming filed. |
| Dec. 09, 1991 | Letter to Parties of Record from BG sent out. (RE: Telephone Conference). |
| Dec. 03, 1991 | Order Scheduling Remand Portion of Final Hearing and Scheduling of Status Conference for Discovery Time Limits sent out. (Final Hearing setfor Feb 18 - Mar 2, 1992). |
| Nov. 18, 1991 | Notice of Hearing filed. (From Kevin S. Hennessy) |
| Nov. 13, 1991 | Response to Respondent A. Vernon Allen Builder, Inc. to the Order Requiring Proposed Hearing Date filed. (From Terry Lewis) |
| Nov. 12, 1991 | (DER) Response to Hearing Officer's Order Requiring Proposed Hearing Dates filed. (From Carol A. Forthman) |
| Nov. 12, 1991 | Response to Petitioners to the Order Requiring Proposed Hearing Datesfiled. (From Joseph Fleming) |
| Oct. 30, 1991 | Case reopened per Remand. |
| Oct. 28, 1991 | Order Requiring Proposed Hearing Dates sent out. |
| Oct. 23, 1991 | Order of Remand filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 22, 1991 | Remanded from the Agency | |
| Jan. 22, 1990 | Agency Final Order | |
| Dec. 07, 1989 | Recommended Order | Potential secondary impacts did not adversely affect water quality and public interest. Subaqueous sewer pipe dredge and fill should be granted. |
OCEAN REEF CLUB, INC. vs. DEPARTMENT OF ENVIRONMENTAL REGULATION, 88-004760 (1988)
DOG ISLAND COMPANY vs. DEPARTMENT OF ENVIRONMENTAL REGULATION, 88-004760 (1988)
FLORIDA WILDLIFE FEDERATION vs. GORDON V. LEGGETT, MOSELEY COLLINS, ET AL., 88-004760 (1988)
DAVID AND VICTORIA PAGE vs DEPARTMENT OF ENVIRONMENTAL REGULATION, 88-004760 (1988)
