STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DR. PEYTON Z. PEEBLES, JR., )
)
Petitioner, )
)
vs. ) CASE NO. 89-3725
) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENT REGULATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause came on for formal hearing before Stephen F. Dean, the duly-designated Hearing Officer, in Gainesville, Florida, on January 12, 1990. The appearances were as follows:
APPEARANCES
For Petitioner: Dr. Peyton Z. Pebbles, Jr.
6527 Northwest 42nd Place Gainesville, Florida 32666
For Respondent: William H. Congdon, Esquire.
Office of General Counsel
Department of Environmental Regulation Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32399-2400
STATEMENT OF THE ISSUES
The ultimate issue for determination is whether the Petitioner has met the requirements of Sections 403.918 and 403.919, Florida Statutes, for the issuance of a dredge and fill permit within the waters of the State of Florida.
PRELIMINARY STATEMENT
On March 31, 1989, the Petitioner applied to the Respondent for a permit to build a 452-square-foot dock and to place fill within waters of the State of Florida. On June 27, 1989, the Respondent issued its Notice of Permit Denial.
The Petitioner timely petitioned for an administrative hearing based upon the denial of his requested fill permit. At the formal hearing, the Petitioner testified on his own behalf, and the Respondent presented the testimony of Jeremy Tyler. The Petitioner's original application, the Respondent's Notice of Permit Denial, and a subsequent denial of the Petitioner's requested reconsideration were accepted into evidence as Joint Exhibits 1, 2 and 3, respectively. The agency submitted proposed findings of fact which were read
and considered. The applicant submitted a letter setting forth his position which was read and considered. Appendix A sets out the findings which were adopted and which were rejected and why.
FINDINGS OF FACT
On March 31, 1989, the Petitioner applied to the Respondent for a permit to place fill along the shoreline of Little NcNeekin Lake in Putnam County.
Little McMeekin Lake is a Class III water of the State of Florida. It is not an outstanding Florida water.
The Petitioner's lot lies at the western end of Little McMeekin Lake. The shoreline measures approximately 150 feet; the eastern lot line measures approximately 30 feet; the road frontage measures approximately 200 feet; and- the western boundary measures approximately 300 feet. The mean high water line meanders approximately 80 feet landward from the existing shoreline. See the application and diagrams in Joint Exhibit 1.
The Petitioner's proposed project would require filling across the back of the lot, parallel to the shoreline, from the mean high water line to a point approximatey 60 feet from the existing shoreline. In addition, an area of fill would be placed in the center of the lot traversing the 60-foot strip of wetlands between the land and the existing shoreline. A dock would be constructed over this 60-foot strip of fill and extending approximately 13 feet into the waters of the lake where an eight by twenty-four foot pier would be constructed. See diagrams in Joint Exhibit 1. This strip of land is desired by the applicant to make it possible for him to beach or launch a boat.
The quality of the wetlands on the petitioner's property improves as one moves from the mean high water line to the shoreline. This project will destroy a strip of naturally sloping shoreline with saw grasses and similar vegetation 25 feet wide and 60 feet long. The fill will be permanent and over time will become inhabited by the types of life which live at the edge of the water and land.
The Department agreed at hearing that filling of a portion of the transitional wetlands adjacent to the mean high water line was permissible to straighten out the Existing shoreline and make the property more usable. This will have little effect on the wetlands at the elevations being approved for fill because the existing wetlands are properly functioning and the wetlands nearer the water have more value than the transitional wetlands near the ordinary high water line.
Applicable water quality standards will not be violated by the proposed project.
The proposed project will not adversely effect public health, safety, welfare, or the property of others. It will not affect navigation or the flow of water and it will not cause harmful erosion or shoaling.
The proposed project will be permanent in nature.
10.. There are no known historical or archaeological resources at the site of the proposed project.
The proposed project will adversely affect fishing by eliminating an area which is necessary to the life cycle of fish; however, this effect will be minimal and would not itself cause significant damage to fishing or the Lake. The Department's concern is with the cumulative effects of granting similar permits for other landowners.
Mitigation of the impacts to fishing is not practical on the applicant's particular piece of property.
The evidence presented indicated that Lake McMeekin originally had more wetlands skirting the lake shore; however, these wetlands have been filled by the landowners. It is suspected that some of this filling occurred after the regulation of dredging and filling of the waters of the state by the Department.
The amount of fill proposed in this application would not place the waters of the lake at risk or impair fishing; however, if additional such permits are approved, it may at some point impair the waters and fishing.
The Department's principal witness candidly stated that the Department lacked the resources to investigate all pending applications and possible violations simultaneously. Applications are given priority over investigations of illegal filling.
To the extent that landowners have illegally filled the lake's wetlands, they have affected the ability of future applicants to obtain fill permits. The Department's policy penalizes those who make proper application and creates a disincentive to comply with the law.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding pursuant to Chapter 120, Florida Statutes.
The Department of Environmental Regulation has permitting jurisdiction over the proposed project pursuant to Chapter 403, Florida Statutes, and Title 17, Florida Administrative Code
Reasonable assurances have been given that the proposed project will not violate water quality standards or criteria relating to outstanding waters of the state.. The evidence indicates that this proposal involves non- outstanding waters of the state, and Section 403.918(2), Florida Statutes, provides for the examination of seven separate criteria to determine if the proposal is contrary to the public interest.
The evidence indicates that the proposed project will not adversely affect public health, safety, welfare or the property of others. It will not adversely affect navigation, the flow of water, or cause harmful erosion or shoaling. It will not violate applicable water quality standards. The project is permanent in nature, but will not affect any known historical or archaeological resources.
The project will impact fish and aquatic1life by filling a portion of the existing wetlands; however, this will not destroy the fish and other mobile aquatic life which will move away from the area. It will not cause a
significant impact per se on fishing. The agency indicated that its primary concern is with the cumulative effects of similar applications from other landowners.
Other landowners have filled similar wetlands on the lake prior to and after regulation of dredging and filling in the waters of the state. Application of the cumulative effect principle denies the applicant a permit because of the destruction of wetlands by other landowners. The lack of emphasis on enforcement creates a disincentive to comply with the state's regulation of the waters. If those landowners who illegally filled the waters of the state were required to restore the wetlands they destroyed, then new applicants also could fill small portions of wetlands to enhance their use of their property without worrying about cumulative effects.
The applicant has met the standard of Section 403.918(2), supra, by assuring that this project is not contrary to the public interest. New applicants for permits should not have to bear the costs of the state's inability to enforce its laws against those who have violated the law and taken value from their fellow landowners and the citizens of the state. To deny new applicants and not enforce restoration by those who have filled wetlands encourages breaking the law.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,
RECOMMENDED that the application of Petitioner to place fill in the waters of the state be approved in accordance with the drawings submitted with the application.
DONE and ENTERED this 28th day of February, 1990, in Tallahassee, Leon County, Florida.
STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida1 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1990.
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-3725
The Agency filed proposed findings of fact which were read and considered.
The Agency's findings were adopted or rejected for the reasons indicated as follows:
Paragraphs 1-10 Adopted
Paragraph 11 Adopted that it will damage fishing;
however, this damage will be insignificant and will not truly affect tee fishing on the lake.
Paragraph 12 Adopted
The Applicant's letter was read and considered as oral argument on the issues presented at hearings.
COPIES FURNISHED:
Mr. Dale H. Twachtmann Secretary
Department of Environmental Regulation
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
Daniel H. Thompson, Esq. Department of Environmental
Regulation
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
Dr. Peyton Z. Pebbles, Jr. 6527 Northwest 42nd Place Gainesville, FL 32606
William H. Congdon, Esq. Office of General Counsel Department of Environmental
Regulation
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
=================================================================
AGENCY FINAL ORDER
=================================================================
BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
DR. PEYTON Z. PEEBLES, JR.
Petitioner,
DOAH Case File No. 89-3725
vs. OGC File NO. 89-0730
STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION
Respondent.
/
FINAL ORDER
On February 28, 1990, a bearing Officer from the Division of Administrative Hearings submitted to the Department of Environmental Regulation ("Department") and Dr. Peyton Z. Peebles, Jr., ("Dr. Peebles") his Recommended Order, a copy of which is attached as Exhibit "A". The Department filed its exceptions to the Recommended Order on March 15, 1990. On March 28, 1990, Dr. Peebles, who was not represented by counsel at the hearing, filed a document entitled "Petitioner's Exceptions." This document is in essence a response to the Department's exceptions, and will be treated as such.
The Department's exceptions and Dr. Peebles' response to those exceptions were timely filed. To the extent that Dr. Peebles' document entitled "Petitioner's Exceptions" may be construed as exceptions to the Recommended Order, they were filed after the fifteen day deadline provided by Rule 17- 103.200(1), Fla. Admin. Code, and must be rejected. The matter thereupon came before me as Secretary of the Department for final agency action.
BACKGROUND
This proceeding concerns an application for a dredge and fill permit to fill a 7,328 square foot area of wetlands on Dr. Peebles' waterfront lot on Little McMeekin Lake in Putnam County, Florida. Little McMeekin Lake is designated as Class III waters of the state. It is not an outstanding Florida Water. The application also involved the construction of a 452 square foot dock which is exempt from permitting pursuant to Rule 17-312.050(1)(d), Fla. Admin. Code. (Formerly Rule 17-12.050(1)(d)) Part of the filled area would be a strip 25 feet wide extending from the lake's edge landward for 60 feet. The remaining filled area would extend from the approximate high water line across the width of the lot and towards the lake to connect to the most landward extent of the 25 foot by 60 foot strip.
The project will permanently destroy the naturally occurring shoreline and wetlands in the 25 foot by 60 foot strip, as well as the wetlands filled along the approximate high water line. The shoreline of Dr. Peebles' lot is
approximately 150 feet long. (Recommended Order,, FOF No. 3) Therefore, the project would fill 25 feet or 16.7 percent of the shoreline of Dr. Peebles' lot. 1/
The Department issued a notice of intent to deny the permit on June 27, 1989.
On July 25, 1989, the notice of intent to deny was affirmed after a re- examination of the property. Dr. Peebles requested an administrative hearing, which was held before a Hearing Officer of the Division of Administrative Hearings in Gainesville, Florida, on January 12, 1990. The Hearing Officer recommended that the permit be issued.
RULINGS ON EXCEPTIONS TO FINDINGS OF FACT
The Department takes exception to the Hearing Officer's statement in Finding of Fact No. 5 that the fill "over time will become inhabited by the types of life which live at the edge of the water and land." The Department argues that the record contains no competent, substantial evidence to support such a finding of fact. The law prohibits me, as agency head, from rejecting any finding of fact in a recommended order that is supported in the record by competent, substantial evidence, but I can and should reject findings of fact which are not supported in the record by competent, substantial evidence. Section 120.57(1)(b)10., Florida Statutes. In this case I must agree with the exception. A review of the entire record reveals no competent, substantial evidence to support the finding of fact. The only record evidence remotely bearing on the matter is that portion of the testimony of Dr. Peebles where he stated that "there probably are some small animals and little salamanders and whatever that live in that area, but I don't believe that they would all die. I think they migrate out into the other natural area that I'm leaving." (Tr. at
21) 2/ This testimony does not support the finding of fact, and the record contains no other evidence even remotely bearing on the matter. Therefore, I reject this finding of fact and accept the exception of the Department.
The Department next takes exception to Finding of Fact No. 11 in which the Hearing Officer states that "However, this effect [on the life cycle of fish] will be minimal and would not itself cause significant damage to fishing or the lake." Once again, the Department contends that there is no competent, substantial evidence in the record to support the finding.
Dr. Peebles testified:
I can't honestly believe that me filling
14.3 percent, of my frontage is going to effect the health, safety, welfare and property of other people. The same goes for
. . . whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Now, this is a case where to argue that on a factual basis would require expert witnesses that would say yes and others that would say no. I think we would find conflicts on all of these
subjects. (Tr. at 19)
Dr. Peebles also testified that "14.3 percent of the shoreline for the use of the owner is not a serious thing. So I don't think any far reaching serious impacts will occur by granting [the permit]." (Tr. at 75) The only other
statement in the record which arguably supports the finding of fact is a statement made by Dr. Peebles while questioning the Department's witness. There Dr. Peebles stated that "I know for a fact -- I'm a fisherman. I fish in the lake. It's a good fishing lake, and with all the construction that's already taken place you've still got good water quality." (Tr. at 70-71)
Whether the proposed project and the cumulative impact of reasonably expected future similar projects will have a minimal or significant impact on fishing and the lake is an area requiring specialized knowledge, skill, experience or training. Although the lay opinion of Dr. Peebles may be helpful in supporting expert testimony, lay opinion standing alone may not under law establish what the impacts would be. Dr. Peebles acknowledges that he is not an expert in ecology or the environment, and admits that expert testimony is needed to determine whether granting the permit will adversely affect the conservation of fish and wildlife. (Tr. at 19) Therefore, Dr. Peebles' opinion that there will be no adverse effect on conservation of fish and wildlife (Tr. at 19) and that the filling of "14.3 percent" of the shoreline for the use of the owners will not have "any far reaching serious impacts" (Tr. at 75) is not supported by expert testimony and is not sufficient evidence to support the finding of fact. Section 90.701(2), Florida Statutes; Ehrhardt, Florida Evidence 387 (2d ed. 1984); Husky Industries v. Black, 434 So. 2d 988, 992 (Fla. 4th DCA 1983) ("Expert testimony is not admissible at all unless the witness has expertise in the area in which his opinion is sought.") Furthermore, the statement that Dr. Peebles made while questioning the Department's witness is not evidence. To the extent that it might be liberally construed as evidence in view of the fact that he was not represented by counsel, the existing fishing quality of the lake is not relevant to the impact of future filling of wetlands around the lake.
On the other hand, Mr. Jeremy Tyler, accepted as an expert in the areas of the environment and water quality, (Tr. at 52) testified that the cumulative impact of granting Dr. Peebles' permit and similar permits reasonably expected would result in an adverse impact on conservation of fish and wildlife, (Tr.
35-41, 49-51, 54-55) and ultimately would result in a violation of water quality standards. (Tr. at 60, 64 and 69) Therefore, not only is there no competent, substantial evidence in the record to support the finding of fact, but there is uncontroverted expert testimony to the contrary Therefore, I accept this exception.
The Department also takes exception to any implication in Finding of Fact No. 11 that the Department's only concern is with cumulative impacts. I do not read the Recommended Order as making any such implied finding. The record shows that the Department concluded that reasonable assurance had been provided that the instant project, standing alone, would not result in water quality violations, (Tyler, Tr. at 51, 60, 64) but that water quality violations will occur and the project is contrary to the public interest when the cumulative impact of reasonably expected future permit applications are taken into consideration. (Tyler, Tr. at 35-41, 49-51, 54-55, 60, 64 and 69) This does not suggest that the Department's only concern in such permitting decisions is cumulative impacts. It only means that under the facts of this application, the only remaining concern is the cumulative impact of reasonably expected future permit applications. The exception is rejected.
The Department takes exception to Finding of Fact No. 12 to the extent that the statement "Mitigation of the impacts to fishing is not practical" implies that the only negative impact of the proposed project is to fishing. As noted in my discussion of Point 3 above, the record contains competent,
substantial evidence that when the cumulative impacts of reasonably expected future projects are considered, water quality violations will result and the proposed project will be contrary to the public interest. I have reviewed the entire record and find no competent, substantial evidence to support a finding that the impact of the proposed project and cumulative impact of reasonably expected future projects would be limited to fishing quality. To the extent that the Recommended Order implies such a limited impact I reject the implication and accept the exception.
The Department's final exception to findings of fact argues that Finding of Fact No. 14 improperly implies that the proposed project would not impair water quality. Finding of Fact No. 14 states, "The amount of fill proposed in this application would not place the lake at risk or impair fishing; however, if additional such permits are approved it may at some point impair the waters and fishing."
Although some semantic difficulties arise out of the Hearing Officer's use of the terms "place the waters at risk" and "impair the waters," the finding of fact is consistent with - testimony of Mr. Tyler that reasonable assurance had been provided that this proposed project, standing alone, would not violate water quality standards. (Tr. at 51) The finding is also consistent with the testimony that when the cumulative impact of this project and similar reasonably expected projects are considered, reasonable assurance had not been provided that water quality standards will not be violated and that the project is not contrary to the public interest. (Tr. at 60, 64 and 69)
However, the impact of the project on the water quality of the lake is a matter that requires expert testimony. As in the case with the impact on conservation of fish and wildlife discussed above, Dr. Peebles introduced no expert testimony regarding the impact of the project on water quality. On the other hand, the Department's expert witness testified that although reasonable assurance had been provided that the project, standing alone, would not violate water quality standards, (Tyler, Tr. at 51) he also testified that the project by itself would have some adverse impact on water quality. (Tyler, Tr. at 51) Therefore, any implication that the project by itself would not impair the water quality of the lake lacks support in competent, substantial evidence and is contrary to unrebuted expert testimony.
To the extent the Hearing Officer's finding implies that the project will not impair water quality, such a finding can not affect the outcome of this case because impairment of water quality is not a proper legal criterion for deciding whether to grant or deny the permit. The proper criterion is whether reasonable assurance has been provided that the project will not violate water quality standards. Cf. Houle v. Department of Environmental Regulation, 10 FALR 3671 (DER Final Order, June 13, 1988), per curiam aff'd, 538 So.2d 1257 (Fla. 1st DCA 1989); Brown v. Dept. of Environmental Regulation, 9 FALR 1871, 1875 (DER Final
Order, March 27, 1987), per curiam aff'd, 531 So.2d 173 (Fla. 4th DCA 1988). Since the implied statement of the Hearing Officer does not affect the outcome of this case, any error is harmless and I reject the exception.
RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW
Burden of Proof
The Department contends that the Hearing Officer erred in not placing the burden of proof on Mr. Peebles to show that the project is not contrary to the
public interest when the cumulative impact of reasonably expected similar future projects are taken into consideration. An applicant for a permit has the burden of proof or persuasion to show entitlement to the permit. Florida Department of Transportation v. J.W.C. Co., 396 So.2d 778 (Fla. 1st DCA 1981). In order to show entitlement to a dredge and fill permit, an applicant must show that he has provided reasonable assurance that water quality standards will not be violated and that the project is not contrary to the public interest, and both of those tests must take into consideration the cumulative impacts of similar projects which are existing, under construction, or reasonably expected in the future.
Sections 403.918(1), (2) and 403.919, Florida Statutes; Caloosa Property Owners' Ass'n v. Dept. of Environmental Regulation, 462 So.2d 523 - (Fla. 1st DCA 1985). 3/ The applicant's burden of proof includes the burden of giving reasonable assurance that cumulative impacts do not cause a project to be contrary to the public interest or to violate water quality standards. Concerned Citizens League of America, Inc., v. IMC Fertilizer, Inc., et al., 11 FALR 4237, 4244 (DER Final Order, March 29, 1989); Brown v. Dept. of Environmental Regulation, 9 FALR at 1877.
At the hearing, the Department introduced expert testimony that reasonable assurance had not been provided that the project would not cause violations of water quality standards and was not contrary to the public interest when the cumulative impact of reasonably expected future projects were considered. (Tyler, Tr. at 35-41, 49-51, 54-58, 60, 64 and 69) Dr. Peebles, who bore the burden of persuasion, introduced no competent, substantial evidence to show that when cumulative impacts had been considered the necessary reasonable assurances had been provided. 4/
Dr. Peebles argues that his project will only fill in 14.3 percent of his shoreline, and only increase the percentage of the lake's wetlands that have been filled to 31.6 percent from the already existing 30 percent. However, it is not the incremental increase that causes the project to be not permittable, it is the cumulative impact of reasonably expected future projects, and Dr. Peebles failed to carry his burden of persuasion as to the cumulative impacts. Since Dr. Peebles did not carry his burden of persuasion he was not entitled to the permit as a matter of law, and the Hearing Officer erred in concluding that the permit should issue. Therefore, the Department's exception is accepted.
Cumulative Impacts
The Department takes exception to the Hearing Officer's conclusion of law that:
Application of the cumulative effect principle denies the applicant a permit because of the destruction of wetlands by other landowners. The lack of emphasis on enforcement creates a disincentive to comply with the state's regulation of the waters.
If those landowners who illegally filled the waters of the state were required to restore the wetlands they destroyed, then new applicants also could fill small portions of wetlands to enhance their use of their property without worrying about cumulative effects. (Recommended Order at 6)
At this point it may be helpful to explain the role of cumulative impact analysis. The Department is required to take into consideration the cumulative impacts of similar projects which are existing, under construction, or reasonably expected in the future. Section 403.919, Florida Statutes; Brown v. Department of Environmental Regulation, 9 FALR 1871, 1876 (DER Final Order, March 27, 1987) (cumulative impact analysis is mandatory). Cumulative impact is not a third test, but rather a factor to be considered in determining whether reasonable assurance has been provided that the project will not result in violations of water quality standards and will not be contrary to the public interest. Concerned Citizens League of America, Inc. v. IMC Fertilizer Inc., 11 FALR 4237 (DER Final Order, March 29, 1989).
As my predecessor Secretary Tschinkel observed:
Without the ability to consider long-term impacts of a project (in combination with similar projects in the area considered "reasonably likely"), DER would be helpless to prevent gradual worsening of water quality and piece-meal elimination of biological resources inflicted by a proliferation of small projects. Morales v. Department of Environmental Regulation, 7 FALR 4786 (DER Final Order, September 18, 1985).
The cumulative impact doctrine was originally developed as policy by the Department. It was subsequently codified by the Legislature in 1984 as Section 403.919, Florida Statutes. Chipola Basin Protective Group, Inc. v. Dept. of Environmental Regulation, 11 FALR 467, 476 (DER Final Order, December 29, 1988).
- The doctrine was approved by the courts in Caloosa Property Owners Association
v. Department of Environmental Regulation, 462 So.2d 523 (Fla. 1st DCA 1985).
The cumulative impact statute, Section 403.919, is entitled "Equitable distribution." As the title suggests, the purpose of cumulative impact analysis is to distribute equitably that amount of dredging and filling activity which may be done without resulting in violations of water quality standards and without being contrary to the public interest. In order to determine whether the allocation to a particular applicant is equitable, the determination of the cumulative impacts is based in part on the assumption that reasonably expected similar future applications will also be granted.
It does not necessarily follow, however, that all similar future applications must be granted if the current application is granted. Although the Department must be consistent in its permitting decisions to the extent possible and consistent with the public interest, (Rule 17-103.160, Fla. Admin. Code) each future application must stand on its own merit and must provide anew the necessary reasonable assurances subject to cumulative impact analysis. Manasota- 88, Inc, v. Agrico Chemical Co., et al., 90 ER FALR 043 (DER Final Order 1 February 19, 1990).
In this case Dr. Peebles argued and the Hearing Officer concluded that the application of cumulative impact analysis is inequitable because previous unpermitted and allegedly illegal filling of wetlands around the lake now results in permits being denied which would have been granted but for the previous filling. There was testimony that about 30 percent of the original wetlands around the lake had been filled in the past, (Tyler, Tr. at 67) that
all of the past filling was unpermitted, and that some of it may have been illegal. (Tyler, Tr. at 46, 61-62, 66-67, 72) However, the record contains no competent, substantial evidence showing how much, if any, previous filling was illegal. Furthermore, Section 403.919(2) requires the Department to consider the impacts of "projects which are existing", and does not draw a distinction between legal or illegal projects.
As to the Hearing Officer's recommendation that cumulative impacts not be considered in this application, I note that Section 403.919, Florida Statutes mandates that such an analysis be conducted for every dredge and fill permit. Section 403.919 states that "The department in deciding whether to grant or deny a [dredge and fill] permit for an activity which will affect waters, shall consider [cumulative impacts]." See also Brown, supra, 9 FALR at 1876 (cumulative impact analysis is mandatory). Therefore, to the extent that the Hearing Officer is recommending cumulative impact analysis not be applied to Dr. Peebles' application, the recommendation is contrary to the law and must be rejected.
The issue then remains of how past fill, whether legal or illegal, should be considered in the cumulative impact analysis. The Hearing Officer's recommendation in effect would require the Department to conduct a cumulative impact analysis under the assumption that previously filled wetlands should be treated as functioning wetlands. If I were to accept this view it would require the Department to take enforcement action in every case or abandon the protection of water quality of certain waters of the state. Such an interpretation would strip from the Department's hands the ability to exercise its discretion in allocating its limited enforcement resources, and result in the Department's enforcement priorities being set by permit applicants rather than by the Department. I note that the record contains competent, substantial evidence that the Department lacks sufficient resources to enforce every violation, (Tyler, Tr. at 45) although such a fact scarcely needs proof.
Acceptance of the Hearing Qfficer's recommendation would place the Department in the dilemma of having to choose to withdraw enforcement resources from more environmentally significant projects or to abandon altogether the protection of less significant projects.
Acceptance of the Hearing Officer's conclusion of law would also result in requiring the Department in all cases to determine whether violations had occurred and to take enforcement action for prior violations before it could consider cumulative impacts. Aside from the lack of sufficient enforcement resources, such enforcement' proceedings seldom, if ever, could be commenced and completed within the 90 days within which the Department must act on an application. Section 403.0876, Florida Statutes. The result would in effect limit the scope of Section 403.919 to pristine water bodies, and render the statute largely meaningless. I cannot accept that the Legislature intended such interpretations of Section 403.919, Florida Statutes.
Although the result of the application of cumulative impact analysis to the facts of this case may seem harsh, the record indicates that Dr. Peebles may still obtain access the waters of the lake by means of a private dock that would not even require a permit if it had 1000 square feet or less of surface area
and met the other provisions of Rule 17-312.050(1)(d), Fla. Admin. Code. Dr. Peebles' existing planned dock is 452 square feet. Therefore, Dr. Peebles could extend that portion of the dock that bridges the wetlands to the uplands by an additional 548 square feet of surface area. For example, the four foot wide bridge to the dock could be extended an additional 137 feet, which is more than enough to reach the upland portion of the lot. (Joint Exhibit No. 1)
For the reasons state above, I reject the Hearing Officer's conclusion of law and accept the exception.
Public Interest Test
The Department also takes exception to the Hearing Officer's conclusion that the project is not contrary to the public interest. In conducting the public interest test the Department must balance the criteria as specified by the Legislature. Section 403.918(2)(a) states:
In determining whether a project is not contrary to the public interest, or is clearly in the public interest, the department shall consider and balance the following criteria:
Whether the project will adversely affect the public health, safety, or welfare or the property of others;
Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;
Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project;
Whether the project will be of a temporary or permanent nature;
Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of 5.267.061; and
The current condition and relative value of functions being performed by areas affected by the proposed activity.
The Department introduced evidence that criteria 1, 3 and 6 were neutral, (Tyler, Tr. at 54-56) that criteria 2, 4, 5 and 7 were negative, (Tyler, Tr. at 35-36, 54, 56, 57) and that when all the criteria were balanced there was a
negative value to the project. (Tyler, Tr. at 57-58) Dr. Peebles argued at the hearing and in his response to exceptions that the Department's methodology in weighing each criteria in the public interest balancing test is incorrect. I disagree, and note that Dr. Peebles bore the burden of proof on the public interest test, and was free to introduce competent, substantial evidence on each criteria. As discussed in Part II above, Dr. Peebles did not introduce any competent, substantial evidence as to any of the above. The Hearing Officer's conclusion of law lacks competent, substantial evidence to support it, and is contrary to unrebuted competent, substantial evidence. Therefore, I reject this conclusion of law.
CONCLUSION
As a result of my rulings on the above exceptions I conclude that the permit application must be denied because Dr. Peebles has not provided
reasonable assurance that when cumulative impacts are taken into consideration the project is not contrary to the public interest.
Having ruled on all of the exceptions it is ORDERED
Except as otherwise stated herein, the findings of fact and conclusions of law of the Recommended Order are adopted.
The recommendation of the Hearing Officer is rejected.
The permit application of Dr. Peyton Z. Peebles, Jr., DER File No. 541627792, is DENIED.
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 11th day of April, 1990, in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
DALE TWACHTMANN
Secretary
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
ENDNOTE
1/ At the hearing Dr. Peebles' testified that 14.3 percent of his shoreline would be filled. (Tr. at 75) This would be consistent with a shoreline of 175 feet. Dr. Peebles did not take exception to the Hearing Officer's finding of fact that the shoreline is approximately 150 feet, and the finding is supported in the record by competent, substantial evidence. (Peebles, Tr. at 16; Joint Exhibit No. 1) Where a hearing officer's finding of fact is supported in the record by competent, substantial evidence, i am not at liberty to reject it.
Section 120.57(1)(b)10., Florida Statutes. In any event, there is no indication in the record that the discrepancy between 16.7 and 14.3 percent would affect the outcome of this matter.
2/ Dr. Peebles, Ph.D., is a Professor and Associate Chairman of Electrical Engineering, University of Florida. He was neither tendered nor received as an expert in any environmental discipline.
3/ Where the applicant cannot provide reasonable assurance that the project is not contrary to the public interest, the Department must consider mitigation measures proposed by the applicant. Section 403.918(2)(b), Florida Statutes.
In this case, mitigation is not practical. Recommended Order, FOF No. 12.
4/ The issue of cumulative impacts is not addressed in Dr. Peebles' permit application, and even if it had been, "some attempt to relate the contents of the application to the issues in the hearing must be made to establish at least a prima facie showing of entitlement to a permit." Brown v. Department of Environmental Regulation, 9 FALR 1871, 1873 (DER Final Order, March 27, 1987).
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the following persons:
by HAND DELIVERY TO:
Honorable Stephen F. Dean William H. Congdon
Hearing Officer Assistant General Counsel Division of Administrative Hearing Department of Environmental The DeSoto Building Regulation
1230 Apalachee Parkway 2600 Blair Stone Road Tallahassee, FL 32399-1550 Tallahassee, FL 32399-2400
and by UNITED STATES MAIL TO:
Dr. Peyton Z. Peebles, Jr. 6527 N.W. 42nd Place Gainesville, FL 32606
On this 12 day of April, 1990.
ROBERT G. GOUGH
Assistant General Counsel STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
| Issue Date | Proceedings |
|---|---|
| Feb. 27, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 11, 1990 | Agency Final Order | |
| Feb. 27, 1990 | Recommended Order | Waters of the State; dredge and fill; Only impact was on fishing. Cummulative impact as department's reason for denial was rejected. Final Order reject Recommended Order. |
