STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RALPH JENSEN, )

)

Petitioner, )

)

vs. ) CASE NO. 89-2064

) STATE OF FLORIDA DEPARTMENT ) OF ENVIRONMENTAL REGULATION )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before J. Stephen Menton, a hearing officer with the Division of Administrative Hearings, on Thursday September 14, 1989, in Miami, Florida.

APPEARANCES

For Petitioner: Ralph Jensen, pro se

2575 South Bayshore Drive Apartment 9-A

Miami, Florida 33134

For Respondent: Pamela Presnell Garvin

State of Florida

Department of Environmental Regulation

Assistant General Counsel 2600 Blair Stone Road

Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUES

The issue in this case is whether Petitioner, Ralph Jensen's application for a permit to place fill material and riprap revetment waterward of the mean high water line on property he owns in Monroe County, Florida should be approved.

PRELIMINARY STATEMENT

On March 30, 1989, the Department of Environmental Regulation issued an Intent to Deny a permit to Petitioner for a proposed project located waterward of the mean high water line in Pine Channel in Monroe County, Florida. The proposed project was detailed in an application filed by Petitioner on November 28, 1988 as modified on March 10, 1989. Petitioner timely filed a protest of the Department's Intent to Deny and the matter was referred to the Division of Administrative Hearings to conduct a formal hearing.

At the hearing, the Petitioner testified on his own behalf and offered five exhibits into evidence, all of which were accepted. The Respondent presented the testimony of Lucy Blair, who was accepted as an expert in assessing the environmental and biological impacts of dredge and fill projects. Respondent offered into evidence nine exhibits, all of which were accepted. The hearing was tape-recorded by Respondent but no transcript was prepared. Both of the parties filed proposed recommended orders within twenty days of the completion of the hearing in accordance with the schedule agreed upon at the conclusion of the hearing. A ruling on each of the parties' proposed findings of fact is included in the Appendix attached hereto.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the hearing, my observation of the witnesses and the entire record compiled herein, I make the following findings of fact:

1. On November 17, 1988, Petitioner filed an application with Respondent, Department of Environmental Regulation (DER) for a permit to fill submerged areas waterward of the mean high water line abutting certain property Petitioner owns on Big Pine Key. Petitioner also proposed to place a riprap revetment over seagrass in the submerged area, and pilings for a stilted structure in the submerged areas.

   
   

2. Petitioner purchased the lot in question on September 8, 1988. There is no habitable structure currently on the property and Petitioner wishes to build a cottage on the lot. The intended purpose of the filling is to enlarge the existing lot so that Petitioner will have adequate area to build a cottage upon, and to stop any erosion that might be occurring.

   
   

3. The area to be filled is within the Florida Keys Special Waters, and is classified as Outstanding Florida Water by the Department of Environmental Regulation pursuant to Rule 17.3041(4)(b), Florida Administrative Code. The area is located within the National Key Deer Wildlife Refuge.

   
   

4. The area proposed to be filled is further classified as Class III Waters.

   
   

5. Although Petitioner contends that he is simply trying to reclaim a portion of his lot which has eroded, the evidence of erosion was very slight and only found in a small area where the property adjoins the vertical seawall of the adjacent property. This particular section is very different from the rest of the shoreline. There is not much vegetation in this area. Aerial photography taken of the property in 1959 and 1972 demonstrates that there has been not been a significant change in the size of the lot in the last thirty years. This conclusion is supported by the physical evidence at the property site.

   
   

6. Petitioner has not affirmatively demonstrated that vegetative stabilization would not prevent any erosion that might be occurring.

   
   

7. Along the shoreline of the area to be filled are buttonwoods and sea daisy and mangrove seedlings.

   
   

8. The submerged area proposed to be filled is very diverse and productive. It includes seagrasses, several types of algae, several macroinvertibrates, and forage fish.

9. The area to be filled is currently very healthy and there are no signs of heavy boat usage in the area.

   
   

10. The algae that exists in the area proposed to be filled serves as a food source for fish, and as a helpful filter of floating particles.

    
    

11. The dense, constant growth of seagrass in this area provides food for fish, stabilizes sediments, absorbs pollutants from the water, and provides shelter to fish.

    
    

12. Any filling of this area would result in the direct elimination of dense, healthy seagrass beds.

    
    

13. The proposed filling will result in a drop in the diversity of organisms existing in the filled area. This will cause a violation of the DER's standards for biological integrity.

    
    

14. The proposed construction and filling is expected to violate the DER's Class III standards for turbidity.

    
    

15. By directly eliminating an area of productive habitat, this project would adversely affect fish and other aquatic wildlife.

    
    

16. The loss of the algae and seagrass vegetation will lead to a decrease in fishery production and marine productivity.

    
    

17. The filling proposal does not include any measures designed to mitigate for or offset these expected adverse impacts.

    
    

18. The residential structure proposed to be built over the fill is expected to cause additional adverse environmental impacts due to nutrient input from the residence.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57, Florida Statutes (1987).

    
    

20. The filling of submerged lands proposed by Petitioner requires a dredge and fill permit from the DER. Section 403.913, Florida Statutes (1987).

    
    

21. Because the proposed project calls for placement of fill in Outstanding Florida Waters in Monroe County without any accompanying measures to offset the adverse impacts, the project is prohibited by Rule 17-312.410, Florida Administrative Code.

    
    

22. Because the proposed project calls for riprap revetment to be placed over a seagrass bed, the project is prohibited by Rule 17-312.440, Florida Administrative Code.

    
    

23. Even if the proposed project was not categorically prohibited by the rules cited above, a permit can only be granted if Petitioner provides reasonable assurance both that the project would not violate state water quality standards and that the project will meet the applicable public interest test. Section 403.918, Florida Statutes (1987).

24. Because the project is located within an Outstanding Florida Water (OFW), the project cannot be permitted if it is expected to degrade the ambient water quality of the surrounding waters. Rules 17-4.242(2)(a), 2b, and 17- 3.041(1), Florida Administrative Code.

    
    

25. The evidence established that Petitioner's proposed project is expected to degrade the ambient water quality values for turbidity and biological integrity and thus cannot be permitted. Rule 17-4.242(1)(a)2b.

    
    

26. Because the proposed project is located within an OFW, it cannot be permitted unless Petitioner provides reasonable assurance that the project would be clearly in the public interest. Section 403.918(2), Florida Statutes (1987).

    
    

27. The evidence did not establish that this project is clearly in the public interest. Section 403.918(2), Florida Statutes (1987). In fact, the evidence established that this project is contrary to the public interest. Because of the destruction of a healthy seagrass and algae community and the lack of any measures to offset this damage, the proposed project will adversely affect fish and wildlife, and marine productivity, and will degrade the current condition and relative value of the affected areas.

    
    

28. In considering this project under the applicable criteria, not only its effects, but also the effects of similar projects for which applications reasonably may be expected must be considered. Section 403.919, Florida Statutes (1987).

    
    

29. There are numerous partially submerged lots in the Florida Keys similar to Petitioner's lot. The adverse cumulative impact of permitting this type of filling would be great. Section 403.919, Florida Statutes (1987).

Based on the foregoing findings of fact and conclusions of law, it is therefore,

RECOMMENDED that the Department of Environmental Regulation enter a Final Order denying the requested permit.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 15th day of November, 1989.

J. STEPHEN MENTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 1989.

APPENDIX

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Final Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Petitioner's Proposed Findings of Fact

Petitioner has filed a document entitled "Findings of Fact -- Evidence." The Findings of Fact in that document are set forth in a narrative fashion and not in numbered paragraphs. Therefore, ruling cannot be made with reference to specific paragraph numbers. However, Petitioner's proposals have been reviewed and considered in the preparation of this Recommended Order. Petitioner's contentions regarding the cause and extent of erosion to the property are rejected as unsubstantiated and contrary to the greater weight of the evidence. The current size of the lot is approximately the same as it was when Petitioner purchased it and the evidence did not establish that it had changed significantly during the last three decades.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1. Adopted in substance in Findings of Fact 1.

2. Adopted in substance in Findings of Fact 3.

3. Adopted in substace in Findings of Fact 4.

4. Adopted in substance in Findings of Fact 2.

5. Adopted in substance in Findings of Fact 7.

6. Adopted in substance in Findings of Fact 8.

7. Adopted in substance in Findings of Fact 9.

8. Adopted in substance in Findings of Fact 5.

9. Adopted in substance in Findings of Fact 6.

10. Adopted in substance in Findings of Fact 10.

11. Adopted in substance in Findings of Fact 11.

12. Adopted in substance in Findings of Fact 12.

13. Adopted in substance in Findings of Fact 13.

14. Adopted in substance in Findings of Fact 14.

15. Adopted in substance in Findings of Fact 15.

16. Adopted in substance in Findings of

    Fact 16.

17. Adopted in substance in Findings of Fact 9.

18. Adopted in substance in Findings of Fact 17.

19. Adopted in substance in Findings of Fact 18.

20. Rejected as constituting legal argument and not a finding of fact.

COPIES FURNISHED:

Ralph Jensen

2575 South Bayshore Drive Miami, Florida 33133

Pamela Presnell Garvin, Esquire Department of Environmental Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

Dale H. Twachtmann, Secretary Department of Environmental Regulation

Twin Towers Office Building 2600 Blair Stone

Tallahassee, Florida 32399-0359

Docket for Case No: 89-002064

Orders for Case No: 89-002064