STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on December 18-20, 1989, in Key Largo, Florida, before Joyous D. Parrish, a designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioners Charles Lee

Florida Audubon Society, Senior Vice President Florida Keys Audubon Society Florida Audubon Society and Upper Keys Citizens 1101 Audubon Way

Association: Maitland, Florida 32751

For Petitioners Doris Jean Self, Linda McMullen

Ralph and Barbara Kruse, Martha McFARLAIN, STERNSTEIN, DeGraaff, Steven and Janice WILEY & CASSEDY, P.A. Lindsay-Hartz, and Owen E. 600 First Florida Bank Gibson: Building

Post Office Box 2174 Tallahassee, Florida 32316

For Respondent/Applicant Robert Routa

William R. Cullen: Post Office Box 6506 Tallahassee, Florida 32314-6506

For Respondent Department: Pamela Presnell Garvin

Asst. General Counsel Florida Department

of Environmental Regulation, Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

STATEMENT OF THE ISSUES

The central issue in this case is whether the Department of Environmental Regulation (Department) should grant a dredge and fill permit which has been requested by the Respondent, William R. Cullen (Applicant).

That proposed permit has been opposed by the Petitioners (who will be referred to collectively as Petitioners for convenience sake).

PRELIMINARY STATEMENT

This case began on June 15, 1989, when the Department released an Intent to Issue which notified the parties that it intended to issue a permit for a proposed project to be located in Key Largo, Monroe County, Florida. The Applicant had requested a permit in order to construct a forty-two slip commercial marina which would require the excavation of uplands and the dredging of an existing basin. The Department preliminarily determined that a wetlands resource regulation permit (dredge and fill permit) was required for the proposed work, that the Applicant had provided reasonable assurances that water quality standards would not be violated by the project, and that the project is not contrary to the public interest. The Petitioners timely filed petitions challenging the issuance of the permit, and the matter was forwarded to the Division of Administrative Hearings for formal proceedings on July 14, 1989. Subsequently, the cases were consolidated and scheduled for hearing.

At the hearing, the Applicant presented the testimony of the following witnesses: William Cullen, representative for the family-owned parcel which is the subject matter of these cases; Kenneth L. Echternacht, a hydrographic engineer and meteorologist; Harry A.V. Parker, III, an engineer and project manager/senior associate for the firm of Post, Buckley, Schuh and Jernigan; and Martin A. Roessler, a marine ecologist (including endangered species in the coastal zone of Florida) and water quality biologist. The Applicant's exhibits numbered 1 through 7, 7A, and 8 through 11 were admitted into evidence.

The Department presented the testimony of the following witnesses: Richard Cantrell, an environmental administrator employed with the Department; Stewart Bradow, currently employed by the South Florida Water Management District within the natural resource management division as a permit reviewer for water quality and environmental concerns, formerly employed by the Department in a similar capacity; Douglas Fry, environmental specialist III, training coordinator for the wetlands resource permitting program throughout the state for the Department; Michael Dentzau, a marine biologist who is supervisor of the dredge and fill permitting section for the Department; and Phillip Edwards, assistant secretary/manager of the district office for the Department's environmental regulatory office. The Department's exhibits numbered 1 through 3, and 5 through 8 were admitted into evidence.

The Petitioners presented the testimony of the following witnesses: Jeannie Self, resident of Key Largo, member of the Upper Keys Citizens Association, and individual Petitioner in this cause; Ed Davidson, a charter boat captain under contract with the National Park Service to operate tour boats in Biscayne National Park; Curtis Kruer, a biologist and research associate with the Cooperative Wildlife Research Lab of Southern Illinois University, also employed as a consultant to the Florida Audubon Society; Bernard Yokel, president of the Florida Audubon Society; Janice Lindsay-Hartz, resident of Key Largo, and individual Petitioner in this cause; Ralph Kruse, an individual Petitioner in this cause and resident of Key Largo; John Stormont, County Commissioner, Monroe County, Florida; Brian Edward Lapoint, a marine biologist employed by the Harbor Branch Oceanographic Institution, and a consultant to the Florida Keys Land and Sea Trust; Barbara Kruse, a resident of Key Largo and individual Petitioner in this cause; and Owen Gibson, resident of Key Largo and individual Petitioner in this cause. Petitioner Audubon's exhibits numbered 1 through 6 were admitted into evidence. The individual Petitioners' exhibits numbered 3a, 3b, 3c, 3e, 3f, 3g, 31, 6, 6a, 6b, 6c, 6d, 6f, 6h, 6k, 61, 6m, 6n, 6o, 6p, 10a, 10c, 10e, 10g, 10i, 10j, 10k, 101, 10m,

10n, 10o, 10g, 12, 23, and an unnumbered multi-colored map of the vicinity of the project were admitted into evidence.

At the conclusion of the hearing the parties waived the requirements of Rule 28-5.402, Florida Administrative Code, and agreed to file their proposed recommended orders within thirty days of the filing of the transcript or the deposition of Jacobus van de Kreeke (whichever occurred later) . Those proposed orders have been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the attached appendix.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received, the following findings of fact are made:

1. The Department is the state agency authorized to issue permits pursuant to Chapter 403, Florida Statutes.

   
   

2. The Respondent, William R. Cullen, filed an application for a dredge and fill permit to construct a slip marina on June 4, 1985. The original request was subsequently amended to seek approval for a forty-two slip commercial marina.

   
   

3. The project site for the Applicant's marina is located at Key Largo, Monroe County, Florida. The site is within Buttonwood Sound, Florida Bay.

   The property is owned by Mr. Cullen and his family.

   
   

4. All of the proposed improvements will be constructed on submerged lands or uplands owned or controlled by the Cullen family.

   
   

5. The project site is located within a commercial area of Key Largo and contains frontage on both the water, Buttonwood Sound, and the highway, U.S. Highway 1.

   
   

6. The project site has a basin which was created by the excavation of materials used for road construction from the shoreline and the installation of an L-shaped rock jetty which runs roughly perpendicular and then parallel to the shoreline. This jetty was installed during the late 1960s.

7. The water depths within the basin range from 3 feet to approximately 14 feet.

   
   

8. The water within the basin is subject to the same tidal considerations as the waters within Buttonwood Sound. There is no interruption of the flow of water in and out of the basin from those waters of the Sound. The water within this basin is within an Outstanding Florida Water as defined in Rule 17-3.041, Florida Administrative Code.

   
   

9. The Applicant's plan calls for the excavation of appproximately 30,170 square feet of upland area and the dredging of the existing basin for approximately 18,460 dredged square feet.

   
   

10. During the construction phases, the Applicant proposes to install turbidity curtains to limit the adverse effects expected during that

    time. The improvements are intended to be a permanent alteration to the basin design and will permanently modify the marine life habitat within that basin.

    
    

11. The Applicant proposes to remove portions of the existing jetty to allow additional water to flow through the basin unimpeded by the jetty walls. The removal of the jetty walls will expedite the dilution and flushing of potential pollutants from the basin on a tidal frequency. That flushing is purported to assure that the water quality within the basin will not be diminished. However, such pollutants will be flushed into Buttonwood Sound.

    
    

12. Stormwater accumulating on the upland project is to flow toward a lower upland area and should not to be dumped into the basin.

    
    

13. The proposed marina is to have fueling facilities and the Applicant has agreed to design that system to limit inadvertent spillage. Further, as a condition of the permit, the Applicant has agreed to abide by the Department of Natural Resources' spill contingency plan requirements.

    
    

14. The proposed marina is designed to provide portable sewage pumpout facilities for each slip. A permanent pumpout facilities will also be available.

    
    

15. The Applicant seeks to attract boats in the range of 30 to 50 feet in length at this facility. While there are a number of other marinas in other areas of Key Largo which might accomodate that size boat, the marinas in the immediate vicinity of this project site are designed for smaller craft.

    
    

16. The area within the basin consists of unvegetated bottom, submerged rip-rap, sea grasses, and hardbottom/algae communities--the predominant classifications being the latter two. The deeper hardbottom areas are to be filled and portions of the sea grasses will be dredged in order to configure the proposed docks. Additionally, other sea grass areas will be shaded, and thereby disturbed, by the construction of the docks.

    
    

17. There are no historical or archaeological features relevant to the proposed site.

    
    

18. The area has not been designated as a critical manatee area, however, manatees do frequent the project vicinity and have been observed feeding immediately adjacent to the basin.

19. The permit proposed for this project requires a water quality monitoring plan. In addition to sampling for coliform, diesel by-products, oils, greases, detergents, oxygen, copper, lead and zinc, the plan requires sampling for aluminum, cadmium, and chromium. The monitoring stations are to be located both within the basin (2 stations) and outside the basin (2 stations).

    
    

20. Liveaboards or others continuously docked at the marina will create additional shading which will disrupt and adversely affect the sea grass system.

    
    

21. In order to provide access to the marina, the Applicant intends to dredge a channel in an area containing sea grass which is undisputedly within the Outstanding Florida Waters.

    
    

22. The Department deemed the subject application was complete on February 23, 1988.

    
    

23. The Department did not apply the Keys Rule found in Rule 17-312.400, Florida Administrative Code, to this project. The Department also did not apply the Mitigation Rule found in Rule 17-312.300, Florida Administrative Code, to this project.

    
    

24. Michael Dentzau has personally reviewed and processed 250-300 dredge and fill permits during his tenure with the Department. Of those projects he has reviewed, he has not recommended that dense sea grass beds of the type located within this project site be dredged in order to construct a commercial marina.

    
    

25. Phillip Edwards was responsible for executing the Intent to Issue in this case. In determining that this project had provided reasonable assurances that water quality standards will not be violated, Mr. Edwards weighed the public interests criteria set forth in Section 403.918, Florida Statutes. Because he received letters purportedly from elected officials, Mr. Edwards presumed that the project was in the public interest. That assumption of fact has not been established by this record.

    
    

26. According to Mr. Edwards, the adverse effects expected by this project could be adequately addressed by the permit conditions when weighed against the public interest in favor of the project. Since Mr. Edwards' assumptions as to the public interest in this project have not been established, his conclusion regarding the weight that interest should receive can be given little consideration.

    
    

27. The project as proposed by the Applicant will not adversely affect navigation or cause harmful erosion or shoaling.

    
    

28. The project as proposed by the Applicant will adversely affect fishing or marine productivity within the basin since it will permanently alter the basin biologically by destroying sea grass. The increased boat traffic within the Sound will also detract from the present recreational uses enjoyed by area residents.

    
    

29. According to Mr. Edwards, it is very unusual for the Department to issue a permit when sea grasses will be adversely affected. In the 17 years in which he has reviewed permits, only two occasions merited approval when the destruction of sea grasses to the extent in this case would result. Neither

    of those cases were factually similar to the case at issue. In those cases, however, elected officials advised Mr. Edwards, as he presumed they had here, that there was a public need for the permit.

    
    

30. Increased boat traffic will result in increased manatee mortality due to collisions.

    
    

31. In order to assure water quality will not be degraded within a marina, the project should have a short flushing time comparable to healthy natural embayments. In this case, the flushing proposed by the Applicant is dependent, in part, on winds which may be inconsistent or relatively minimal during the summer months.

    
    

    CONCLUSIONS OF LAW

    
    

32. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

    
    

33. An applicant for a permit bears the burden of proof to establish by a preponderance of the evidence that the project provides reasonable assurance that the proposed activity will not cause a violation of water quality standards and is not contrary to the public interest. Rule 17-103.130, Florida Administrative Code.

    
    

34. Section 403.913(1), Florida Statutes, provides:

    
    

    No person shall dredge or fill in, on

    or over surface waters without a permit from the department, unless exempted by statute or department rule.

    
    

35. Section 403.918, Florida Statutes, provides, in pertinent part:

    
    

    1. A permit may not be issued under ss. 403.91-403.929 unless the applicant provides the department with reasonable assurance that water quality standards will not be violated. The department, by rule, shall establish water quality criteria for wetlands within its jurisdiction, which criteria give appropriate recognition to the water quality of such wetlands in their natural state.

    2. A permit may not be issued under ss. 403.91-403.929 unless the applicant provides the department with reasonable assurance that the project is not contrary to the public interest. However, for a project which significantly degrades or is within an Outstanding Florida Water, as provided by department rule, the applicant must provide reasonable assurance that the project will be clearly in the public interest.

       1. 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:

          1. Whether the project will adversely affect the public health, safety, or welfare or the property of others;

          2. Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;

          3. Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;

          4. Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project;

          5. Whether the project will be of temporary or permanent nature;

          6. Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and

          7. The current condition and relative value of functions being performed by areas affected by the proposed activity.

       2. If the applicant is unable to otherwise meet the criteria set forth in this subsection, the department, in deciding to grant or deny a permit, shall consider measures proposed by or acceptable to the applicant to mitigate adverse effects which may be caused by the project .

          
          

36. Rule 17-4.070, Florida Administrative Code, provides, in part:

    
    

    (3) The Department may issue any permit with specific conditions necessary to provide reasonable assurance that Department rules can be met.

    
    

37. In this case the conditions set forth in the Intent to Issue are inadequate to offset the adverse affects expected by this project.

    
    

38. In this case, the Applicant has not established that water quality standards will be met and that the waters within the Buttonwood Sound will not be degraded.

    
    

39. Moreover, the Applicant has not shown that the project is clearly in the public interest. Even applying the lesser standard, that the project is not contrary to the public interest, the Applicant has failed to meet the burden. The Department's preliminary decision in this case was based upon an erroneous assumption not supported by the weight of the credible evidence.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Department of Environmental Regulation enter a final order denying the permit requested by the Applicant.

DONE and ENTERED this 22nd day of August, 1990, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings 1230 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this

22nd day of August, 1990.

APPENDIX TO CASE NOS. 89-3779 et seq.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY PETITIONERS:

1. The first three sentences of paragraph 1 are accepted; the remainder is rejected as argument or irrelevant.

2. Paragraph 2 is accepted.

3. Paragraph 3 is accepted.

4. With regard to paragraph 4, it is accepted that the Department deemed the application complete on February 23, 1988; otherwise, the paragraph is rejected as argument.

5. With regard to paragraph 5, it is accepted that the habitat within the basin is the same as the habitat throughout Florida Bay and that the basin is not "enclosed" hydrologically; otherwise, the paragraph is rejected as argument or comment.

6. Paragraphs 6, 7, 8, 9, 10, 11, and 12 are rejected as argument, conclusions of law, or comment. The paragraphs do not recite facts pertinent to this case.

7. Paragraphs 13, 14, and the first two sentences of paragraph 15 are accepted. The remainder of paragraph IS is rejected as argument.

8. The first two sentences of paragraph 16 are accepted. The remainder of the paragraph is rejected as comment or argument.

9. Paragraph 17 is accepted.

10. Paragraph 18 is rejected as argument.

11. To the extent that paragraph 19 accurately describes Van de Kreeke's assessment of the report it is accepted; otherwise rejected as irrelevant, comment, argument, recitation of testimony or unsupported by the record. The report upon which comment is directed was not offered in this cause to prove its truth/accuracy.

12. Paragraphs 20 through 22 are rejected as comment, argument, recitation of testimony or unsupported by the record-- see comment to paragraph 19 above.

13. Paragraphs 23 through 26 are accepted.

14. Paragraphs 27 and 28 are rejected as argument, comment, or contrary to the weight of the evidence.

15. Paragraphs 29 and 30 are accepted.

16. Paragraph 31 is rejected as argument or contrary to the weight of the evidence.

17. Paragraphs 32 and 33 are accepted.

18. Paragraph 34 is rejected as hearsay, irrelevant, or argument.

19. Paragraph 35 is rejected as comment or argument.

20. Paragraph 36 is accepted.

21. Paragraphs 37 through 40 are rejected as argument or contrary to the weight of the evidence.

22. Paragraphs 41 through 43 are accepted.

23. Paragraph 44 is rejected as contrary to the record.

24. Paragraph 45 is rejected as argument.

25. Paragraph 46 is rejected as argument or contrary to the weight of the evidence.

26. Paragraph 47 is accepted but is comment.

27. Paragraphs 48 and 49 are accepted.

28. Paragraph 50 is rejected as repetitive.

29. Paragraph 51 is rejected as argument or conclusions of law.

30. The first three sentences of paragraph 52 are accepted. The remainder of the paragraph is rejected as argument.

31. The first sentence and that portion of the second sentence of paragraph 53 that ends with the word "authenticity" is accepted. The remainder of the paragraph is rejected as argument or conclusions of law.

32. Paragraphs 54 and 55 are accepted.

33. Paragraph 56 is rejected as irrelevant or hearsay.

34. Paragraph 57 is rejected as hearsay.

35. Paragraph 58 is rejected as argument, comment, or irrelevant.

36. Paragraphs 59 through 66 are accepted.

37. Paragraph 67 is rejected as contrary to the weight of the evidence.

38. Paragraph 68 is rejected as contrary to the weight of the evidence.

39. Paragraphs 69 and 70 are accepted.

40. Paragraph 71 is rejected as repetitive.

41. Paragraph 72 is rejected as argument.

42. The first sentence of paragraph 73 is accepted; the remainder is rejected as contrary to the weight of the evidence.

43. Paragraph 74 is accepted.

44. Paragraphs 75 through 77 are rejected as contrary to the weight of the evidence.

45. Paragraphs 78 and 79 are accepted.

46. Paragraph 80 is rejected as repetitive.

47. With the inclusion of the words "and hardbottom and algae" paragraph

    81 is accepted.

48. Paragraph 82 is accepted.

49. Paragraph 83 is accepted.

50. Paragraph 84 is rejected as contrary to the weight of the evidence. 5l. Paragraphs 85 through 89 are accepted.

1. With the substitution of the word "not" for the word "ever" in the last sentence of paragraph 90, it is accepted.

2. Paragraphs 91 through 94 are accepted.

3. Paragraph 95 is rejected as not supported by the record or contrary to the weight of the evidence.

4. Paragraphs 96 through 100 are accepted.

5. Paragraph 101 is rejected as repetitive.

6. Paragraphs 102 through 106 are rejected as argument, comment, or irrelevant.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT:

1. Paragraph 1 is accepted.

2. Paragraph 2 is rejected as contrary to the weight of the credible evidence. The waters within the basin are of the same origin as they were prior to the creation of the jetty; no artificial body of water was created.

3. With regard to paragraph 3 it is accepted that the jetty was constructed in the late 1960s.

4. Paragraph 4 is accepted.

5. With regard to paragraph 5 it is accepted that that is the applicants proposal no conclusion as to the likelihood of that is reached.

6. Paragraph 5 is accepted.

7. Paragraph 6 is accepted. Inevitably, however, spills will occur and must be considered as an adverse affect of the project.

8. Paragraph 7 is accepted.

9. Paragraph 8 is rejected as unsupported by competent evidence or contrary to the weight of the evidence presented.

10. Paragraph 9 is rejected as contrary to the weight of the evidence.

11. Paragraph 10 is accepted.

12. Paragraph 11 is accepted but is inadequate to offset the adverse affects to manatees.

13. Paragraph 12 is accepted but is inadequate to limit the adverse affects to sea grass.

14. Paragraph 13 is rejected as contrary to the weight of the evidence.

15. Paragraph 14 is rejected as contrary to the weight of the evidence.

16. Paragraph 15 is accepted.

17. Paragraph 16 is accepted.

18. Paragraphs 17 and 18 are accepted.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE APPLICANT:

1. Paragraphs 1 through the first sentence of paragraph 6 are accepted. The second sentence of paragraph 6 is rejected as contrary to the weight of the evidence.

2. Paragraphs 7 through Il are accepted.

3. Paragraph 12 is rejected as irrelevant.

4. Paragraphs 13 through the first sentence of paragraph 17 are accepted. The remainder of paragraph 17 is rejected as contrary to the weight of the evidence.

5. Paragraph 18 is accepted.

6. Paragraph 19 is rejected as unsupported by the record or contrary to the weight of the evidence.

7. Paragraph 20 is accepted.

8. Paragraphs 21 through 26 are rejected as contrary to the weight of the evidence.

9. Paragraph 27 is rejected as contrary to the weight of the evidence or unsupported by competent evidence.

10. The first sentence of paragraph 28 is accepted, the remainder rejected as speculative, comment, or unsupported by the record.

11. The first sentence of paragraph 29 is accepted, the remainder rejected as contrary to the weight of the evidence.

12. Paragraph 30 is accepted.

13. Paragraph 31 is rejected as contrary to the weight of the evidence.

14. Paragraph 32 is rejected as contrary to the weight of the evidence.

15. Paragraph 33 is accepted but is irrelevant.

16. Paragraph 34 is rejected as contrary to the weight of the evidence.

17. Paragraph 35 is accepted; however, sea grasses not disturbed by dredging will still suffer adverse affects from shading and silting.

18. Paragraph 36 is accepted but see comment to paragraph 35 above.

19. Paragraph 37 is accepted.

20. Paragraph 38 is accepted.

21. Paragraph 39 is accepted but is irrelevant.

22. Paragraph 40 is accepted.

23. Paragraph 41 is accepted.

24. Paragraph 42 is accepted.

25. Paragraph 43 is rejected as irrelevant.

26. Paragraph 44 is rejected as contrary to the weight of the evidence.

27. Paragraph 45 is accepted but it should be noted that is not the extent of the proposal.

28. Paragraph 46 is rejected as contrary to the weight of the evidence.

29. Paragraph 47 is accepted.

30. Paragraph 48 is rejected as contrary to the weight of the evidence.

31. Paragraph 49 is rejected as contrary to the weight of the evidence.

COPIES FURNISHED:

Pamela Presnell Garvin Assistant General Counsel Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Charles Lee

Florida Audubon Society 1101 Audubon Way

Maitland, Florida 32751

Robert Routa

P.O. Box 6506

Tallahassee, Florida 32314-6506

Linda McMullen

McFARLAIN, STERNSTEIN, WILEY & CASSEDY, P.A.

600 First Florida Bank Building Tallahassee, Florida 32301

Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Daniel H. Thompson General Counsel

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL REGULATION

FLORIDA AUDUBON SOCIETY,

FLORIDA KEYS AUDUBON SOCIETY, AND UPPER KEYS CITIZENS ASSOCIATION,

et al.

Petitioners,

vs. DOAH CASE NO. 89-3779

OGC FILE NO. 89-0708

WILLIAM R. CULLEN and

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,

Respondent.

/

FINAL ORDER

On August 22, 1990, a hearing officer from the Division of Administrative Hearings ("DOAH") submitted to me and all parties her recommended order, a copy of which is attached as Exhibit A. Timely exceptions to the recommended order were filed on August 28 by Respondent Mr. William R. Cullen ("Mr. Cullen") and on September 6 by the Department of Environmental Regulation ("Department").

The Department filed a response to several of Mr. Cullen's exceptions on September 7. The matter thereafter came before me as Secretary of the Department for final agency action.

BACKGROUND

On June 4, 1985, Mr. Cullen applied to the Department for a wetland resource permit to construct a 61 slip marina in Key Largo, Monroe County, in Class III waters in the vicinity of Buttonwood Sound. After originally issuing an intent to deny and then negotiating with Mr. Cullen over modifications to the proposed project, the Department on June 15, 1989, released an intent to issue for a 39-slip marina. Timely petitions challenging the intent were filed by the Florida Audubon Society, the Florida Keys Audubon Society, the Upper Keys Citizens Association, and various individuals ("Petitioners"). A final hearing on the matter was held on December 18-20, 1989, in Key Largo. The hearing officer recommended that the application be denied.

RULING ON EXCEPTIONS

Exceptions of Mr. Cullen to Findings of Fact

1. Mr. Cullen first takes exception to the hearing officer's Finding of Fact No. 2, that the project involves construction of a 42-slip marina. Mr. Cullen correctly notes that the project involves construction of a 37-slip marina. (T.23, Cullen Exhibit 6) The hearing officer herself acknowledges, through her rulings on findings of fact, that the marina would have 37 slips. See, e.g., Ruling No. 1 on Proposed Findings of Fact submitted by the Department, Recommended Order P. 17. There is no competent substantial evidence to support that the marina would have 42 slips. Therefore, Mr. Cullen's exception is accepted, and the recommended order is amended by this Final Order to show the proposed marina as having 37 slips.

   
   

2. Mrs. Cullen next objects to the hearing officer's Binding of Fact No. 8, that the water within the basin where the project is located is an Outstanding Florida Water (OFW)., In Finding of Fact No. 6, which is undisputed, the hearing officer found that the basin was created by the excavation of materials from the shoreline and the installation of an L-shaped rock jetty that runs roughly perpendicular and parallel to the shoreline; and that the jetty was installed during the late 1960s. The hearing officer apparently concludes that the OFW designation applies because "[t]here is no interruption of the flow of water in and out of the basin from those waters of the [Buttonwood] sound." Recommended Order at p.6.

   
   

   Waters in the Florida Keys were designated as an OFW on May 8, 1985, as an amendment to Florida Administrative Code Rule 17-3041. Subparagraph 17- 3.041(9)(i)3. of the rule excludes the following waters in the Keys from the OFW designation:

   
   

   Artificial waterbodies, defined as any waterbody created by dredging, or excavation, or by the filling of the boundaries, including canals ....

   (Emphasis added.)

   
   

   Nowhere in the rule is there a provision, as suggested by the hearing officer, that "no interruption of the flow of water" is a basis for OFW inclusion.

   Instead, there was expert witness testimony from Mr. Richard W. Cantrell, environmental administrator in charge of the Department's Jurisdictional Evaluation Section, that the Department's interpretation of the underscored language has consistently been that waters within basins created prior to the rule, such as the waters at issue here, would be excluded from the OFW designation, within a perpendicular line from the end point of the fill to the shoreline. (T.281-2) There was no evidence presented that rebutted Mr.

   Cantrell's testimony on this point.

   
   

   While denominated a finding of fact, the hearing officer's Finding of Fact No. 8 in reality also contains a conclusion of law, involving how this OFW rule provision should be interpreted. The Department provided unrebutted testimony on the reasons for how it exercises its discretionary authority to interpret its rules. Cf. McDonald v. Department of Banking and Finance, 346 So.2d 569, 584 (Fla. 1st DCA 1977). Such an interpretation should be given great deference.

   Cf. Department of Environmental Regulation v. Goldring, 477 So.2d 532 (Fla. 1985). There is nothing in the record of this proceeding that would warrant that I change the Department's established interpretation of this rule.

   Particularly in light of the record testimony of Mr. Cantrell, which discloses (T.270-276) that this interpretation was given by the Department to the public in six workshops before adoption of the Keys OFW designation, for me to change that interpretation today would be highly inappropriate. The public should have a reasonable expectation of consistency when the Department interprets its rules, absent some compelling reason for change. None was presented here. The exception, therefore, is accepted. I find the waters with the basin to be Class III and not OFW waters.

   
   

3. Mr. Cullen takes exception to Finding of Fact No. 16, which characterizes the bottom areas within the basin. He calls the finding "misleading" because it makes no reference to areas of seagrasses that will be protected or not dredged. As stated ire Section 120.57(1)(b)10., Florida Statutes, I cannot reject or modify a hearing officer's findings of fact unless I can determine from a complete review of the record "that the findings of fact were not based upon competent substantial evidence ..." In interpreting this law, the courts make clear that an agency head cannot substitute his or her interpretation of the facts for that of the hearing officer. See, e.g. Kibler

   v. Department of Professional Regulation, 418 So.2d 1081, 1083 (Fla. 4th DCA 1982). While the hearing officer's finding does not contain a complete account of the basin characteristics, there is competent substantial evidence to support the description presented by her. For reasons that I shall discuss in further detail later, especially in my ruling on Exception No. 8, description cannot be considered misleading. This exception, therefore, is rejected.

   
   

4. Mr. Cullen next asserts that the hearing officer's Finding of Fact No. 18, that manatees frequent the project vicinity, could only be based upon largely uncorroborated hearsay. The hearing officer's finding, however, was also based upon sitings and photographs by persons attending the hearing (Petitioner's Composite Exhibit 6) as well as the expert testimony of Mr. Curtis Kruer (T. 603-604), Dr. Bernard Yokel (T. 649-668), and Dr. Lindsay Hartz (T. 683-704). The exception is therefore rejected.

   
   

5. Mr. Cullen claims that Finding of Fact No. 20 regarding liveaboards is misleading. The hearing officer found that liveaboards or others continuously docked at the marina would create additional shading, adversely affecting the seagrass system. Mr. Cullen states that the only testimony as to liveaboards is as to those existing currently offshore. Mr. Cullen does not object here to the correctness of the underlying finding as to the adverse impacts of liveaboards, only to the finding's implicit assumption that liveaboards would be present at the marina and thereby cause problems. To the extent the finding is based upon that assumption, the environmental concerns associated with the finding could be addressed through the addition of appropriate permit conditions. Since I shall adopt the hearing officer's recommendation of permit denial for reasons beyond those at issue in this exception, I find that it is unnecessary for me to consider whether the project could be made permittable by the addition of such conditions. Therefore, the exception is rejected.

   
   

6. Mr. Cullen criticizes Finding of Fact No. 23 as misleading. That finding states that the Department did not apply to the project either the Keys Rule, Florida Administrative Code Rule 17-312.400; or the Mitigation Rule, Florida Administrative Code Rule 17-312.300. I too found the hearing officer's statement disturbing, because it could be read to suggest that the Department did not require mitigation and did not otherwise apply the appropriate rules In evaluating the project. In reality, this permit application predated both the Keys Rule and the Mitigation Rule, neither of which was therefore applicable to this project. To the extent this finding may be misleading by implying

   otherwise I accept the exception. The Department had specific statutory authority to require mitigation by virtue of the 1984 Henderson Act, at Section 403.918(2)(b), Florida Statutes. Prior to implementation of the Mitigation Rule, the Department applied mitigation by nonrule policy. See, e.g., Port Everglades Authority v. Department of Environmental Regulation et al., 9 FALR 5613 (Final Order October 9, 1987). Mitigation was included in this project, as required by law and Department policy. The Final Order is clarified accordingly.

   
   

7. Mr. Cullen objects to findings in Finding of Fact Nos. 25 and 26 that relate to how Mr. Phil Edwards applied the public interest test. Mr. Edwards is the Department's Deputy Assistant Secretary for the South Florida District, and as such was responsible for making the decision on the intent to issue this permit. The essence of the exception comes from the following statement by the hearing officer:

   
   

   Because he received letters purportedly from elected officials, Mr. Edwards presumed the project was in the public interest. That assumption of fact has not been established by this record.

   
   

   There are several legal requirements that the Department reviews in determining whether to issue a permit to construct projects in wetlands. The requirements are found in Section 403.918, Florida Statutes, which is quoted in substantial part on pages 11 and 12 of the recommended order; and Section 403.919, Florida Statutes. In Section 403.918, the requirements take the form of a threefold test that has been repeatedly noted in Department final orders. See, e.g., Houle v. Department of Environmental Regulation, 10 FALR 3671 (Final Order June 13, 1988); Brown v. Department of Environmental Regulation, 9 FALR 1871 (Final Order March 27, 1987). The first test is a water quality one: The applicant must provide reasonable assurance that the project will not violate water quality standards. If the applicant can provide such assurance, or alternately receive a variance from any unmet water quality requirement, the applicant must next meet the public interest test, by providing reasonable assurances that the project is either not contrary to the public interest; or, in the case of a project in an OFW, that the project is clearly in the public interest. There are seven criteria listed in the statute for determining what makes up the public interest test. Finally, If the applicant is unable after reasonable modifications to the project to meet public interest criteria, the Department is required to consider a mitigation test -- what measures can the applicant undertake to mitigate the project's adverse impacts. In addition to the threefold test under Section 403.918, the Department also must consider the impact of the project under the criteria in Section 403.919.

   
   

   In this case, the hearing officer's above-quoted language indicates that she believed that Mr. Edwards misapplied the public interest test by allowing letters from elected officials' to dictate his decision on all seven criteria. There is no competent substantial evidence to support such a finding. After a careful review of Mr. Edwards' testimony on this matter (T.470-52), I Concur with Mr. Cullen's analysis of the testimony that Mr. Edwards considered the comments of public officials only with respect to the first of the seven criteria that make up the public interest test: "Whether the project will adversely affect the public health, safety or welfare or the property of others " Mr. Edwards testified that he considered letters not only from public officials in support of the project, but also from people who lived in the area and opposed the project. I find consideration of these letters to be completely

   appropriate in helping the Department evaluate whether a project would adversely affect the public health, safety or welfare. To do otherwise could result in a decision being made in an uninformed vacuum. I cannot believe the legislature intended such an interpretation of the Henderson Act. Therefore, I accept the exception. I also reject take hearing officer's recommendation, in Finding of Fact No. 26 that Mr. Edward's conclusion on public interest should be given little consideration. Such a conclusion would be contrary to the judicial deference given to the Department's analysis of the public interest test that was recognized in 1800 Atlantic v. Department of Environmental Regulation, 552 So.2d 946 (Fla. 1st DCA 1989). However, as I shall explain further in my ruling on the first exception to conclusions of law, Mr. Cullen did not meet the first part of the threefold test. Therefore, the acceptance of this exception is not crucial to the outcome of this case.

   
   

8. Mr. Cullen takes exception to the hearing officer's Finding of Fact No.

   28 that the project will "adversely affect fish or marine productivity within the basin since it will permanently alter the basin biologically destroying sea grass." Mr. Cullen argues that "the overwhelming preponderance of the evidence" showed that the area "was devoid of life" or that seagrasses would be protected from dredging or navigation. Dr. Martin Roessler, Mr. Cullen's chief expert witness on this issue, did conclude that there would be no adverse affect, that the project area was not productive, and that the project would In fact Increase productivity. (T.204-205) On cross examination, however', Petitioners sharply questioned the thoroughness of Dr. Roessler's sampling and analysis. In presenting their own case, Petitioners offered, among other things, the expert testimony of Mr. Kruer, who did an extensive, carefully documented underwater photographic survey of the basin and areas to be dredged (Audubon Exhibit No. 5) Mr. Kruer described in detail the richness shown In the 24-photograph exhibit, which appeared to corroborate his conclusions that the area is a very productive community. (E.g., T.578). Petitioners also presented the expert testimony of Dr. Bernard Yokel, who visited the project site and concluded that It was "an extraordinarily useful and heavily vegetated area. (T. 622)

   
   

   The record reveals a battle of expert witnesses over this contested issue.

   My review of the record leaves me to conclude that competent substantial evidence can be found to support either position However, by virtue of Section 120.57(1)(b)10., Florida Statutes, I am precluded from substituting my judgment on a factual matter for that of the hearing officer. That prerogative is left to the hearing officer. Heifetz v. Department of business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985). Therefore I must reject this exception.

   
   

9. This exception reiterates the fourth exception's critique of the hearing officer's findings with regard to the presence of manatees in the area. This exception is rejected for the same reason stated previously.

   
   

10. Mr. Cullen excepts to the hearing officer's Finding of Fact No. 31, relating to flushing times within the basin. This finding is very limited in scope, and simply recognizes what exports such as Dr. Kenneth-Echternacht recognized with regard to maintaining water quality in the basin, that flushing times should be short and are dependent in part on winds. The exception is therefore rejected.

Exceptions of Mr. Cullen to Conclusions of Law

1. Mr. Cullen takes exception to two legal conclusions by the hearing officer: That the proposed permit conditions are inadequate to offset the adverse impacts of the project, and that Mr. Cullen has not established that

   water quality standards will be met or that waters within Buttonwood Sound will not be degraded. These conclusions rely upon a critical finding of fact that the hearing officer has not expressly made, but as woven into this conclusion of law - that Mr. Cullen has failed to provide sufficient proof to meet the reasonable assurances test as to certain water quality parameters.

   
   

   I am concerned with the lack of specific findings of facts in the recommended order with regard to water quality, because such findings are, as noted previously, a critical first step that must be made in evaluating a wetlands resource permit before public interest and mitigation criteria are considered. Given my rejection of the hearing officer's findings on both the boundaries of the OFW and how Mr. Edwards applied the public interest test, I must consider whether a remand is in order so that the bearing officer can make the record clear with regard to what water quality violations may occur and where. The location is particularly critical given that under Florida Administrative Code Rule 17-3.041(1), no degradation is allowed, except under very limited circumstances, in an OFW a more stringent standard than that applicable to waters without this classification.

   
   

   After carefully reviewing the recommended order and the record, I conclude that a remand would only delay, not change, the eventual outcome of this proceeding. While not making express findings on water quality standards, the hearing officer made findings indirectly with regard to several specific parameters. This was accomplished through her adopting in her appendix proposed findings tendered by Petitioners in their Proposed Recommended Order, and in particular paragraphs 32, 36 and 43, that there would be violations of water quality standards for nutrients, heavy metals, biological integrity, turbidity, ambient water quality, and oil. She also rejected in her appendix findings on meeting similar water quality parameters by Mr. Cullen in his Proposed Recommended Order at paragraphs 19 and 21 through 26.

   
   

   When reviewed in light of the competent substantial evidence test, I conclude that the hearing officer's ruling frost be upheld. Petitioners placed into the record such evidence through both direct testimony of their own witnesses and cross examination of the witnesses of Mr. Cullen and the Department. The following witnesses of the Petitioners exemplify the basis for my conclusion: Captain Ed Davidson, a charter boat captain qualified as an expert in navigation, who testified that because of the shallowness of the area, boats would cause prop wash and dredging on sea grasses (T.546-547); Mr. Kruer, whose testimony as to the richness of the area I have already noted, who also testified that dredged areas would not recolonize (T.581); Dr. Yokel, whose testimony regarding marine productivity I have also previously noted, who opined that the project would adversely affect those marine resources on a long term basis (T.627-279) and would cause continuing siltation (T.636); and Dr. Brian Lapoint, a marine biologist, qualified as an expert in water quality impacts, who concluded that there would be water quality violations and measurable contamination of adjacent OFW waters (T.754, 760-762), and that reasonable assurances had not been provided that water quality standards would be met. (T.765) Witnesses of the applicant and the Department indicated similar concerns on cross examination. For example, Dr. Roessler could not conclude whether the Department's standard for biological integrity would be violated (T.238); Mr. Stuart Bradow, a former Department employee who reviewed the permit, was not sure whether the proposed project would adversely affect marine productivity In the area (T.324); Mr. Douglas Fry, a Department employee previously involved inn evaluating the permit, was also uncertain whether the project would meet the biological integrity standard (T.380); nd Mr. Michael

   Dentzau, a Department employee also Involved In the permit review, stated that- he did not feel that reasonable assurances had been provided that Mr. Cullen's project would meet the biological integrity standard. (T.425)

   
   

   It Is well settled that the burden is on a permit applicant to show entitlement to a permit. Florida Department of Transportation v. J.W.C. Company Inc., 396 So.2d 778 (Fla. 1st DCA 1981). J.W.C. also observes that the burden of going forward with the evidence can shift during the course of a hearing.

   Here, the transcript reveals that Mr. Cullen first presented evidence with regard to water quality standards, which include biological integrity, at Florida Administrative Code Rule 17-3.121. Petitioners, then presented, through cross examination and their own expert witnesses, evidence that there would be water quality violations with regard to biological integrity. This was accomplished through testimony both directly addressing that parameter; and, because of the nature of that parameter, indirectly through evidence to show that Dr. Roessler had greatly understated the marine productivity of the project area. Once Petitioners did this, the burden shifted back to Mr. Cullen to show that such evidence should not detract from Dr. Roessler's original opinion as to the reasonable assurance test being met. From my review of the record, and recommended order, it is apparent to me that the hearing officer concluded that Mr. Cullen failed that ultimate burden of persuasion, and that competent substantial evidence supports her conclusion.

   
   

   I do recognize my authority, as stated by the court in 1800 Atlantic, supra, as well as by the legislature at Section 403.92, Florida Statutes, to add conditions to make an application permittable, or at least to explain to applicants that changes are necessary for permit approval. Here certain potential water quality violations can be prevented through appropriate permit conditions for example, those relating to the discharge of oil and greases, the pumping of bilges, and nutrient and shading problems associated with liveaboards. There does not appear to be sufficient record support, however, for me to develop permit conditions that would adequately address the biological integrity problems that almost all of the expert witnesses appear to have recognized would be associated with this project, both in its construction and in its operation. This conclusion, of course, is necessitated by thee findings of fact, both direct and indirect, which the hearing officer has made. I conclude that those findings are binding on me, and concur that reasonable assurances have not been provided that water quality standards will not be violated. This exception, therefore, is rejected.

   
   

2. Mr. Cullen next asserts that the hearing officer misapplied the balancing test set forth in Section 403.918(2)(a), Florida Statutes. To the extent that the hearing officer misinterpreted Mr. Edwards' testimony, as I have stated previously in my ruling on the seventh exception I agree that the hearing Officer is incorrect, and I accept the exception, but only on that ",limited basis. The limitation Is that while 1800 Atlantic indicates that the weighing of the seven public interest criteria is ultimately the responsibility of the Department, not the hearing officer, analysis of those criteria is Imbued with findings of fact. Therefore, if the Department's weighing is based upon factual assumptions that are rejected by the hearing officer, this affects the validity of the Department's analysis. Here, based upon evidence presented to the hearing officer that was not provided to Mr. Edwards when he originally evaluated the project, the hearing officer concluded that the project would adversely affect fish or marine productivity, would cause permanent damage, and would cause increased manatee mortality. Since Mr. Edwards did not have the benefit of these findings when he originally weighed the public interest considerations, it would be necessary for me to" reweigh these factors in light

   of the hearing officer's findings, were I to apply the public interest test in this case. Since the hearing officer also found, however, that the applicant failed to provide reasonable assurances that water quality standards would be met, It is not necessary for me to reweigh the criteria. The water quality findings render such an exercise unnecessary, since the project Is unpermittable because of those water quality considerations.

   
   

3. Mr. Cullen's last exception is to the hearing officer's failure to consider the fact that the Department considered mitigative measures. This exception is rejected as irrelevant to this proceeding. As I have already noted, since thee project has been found not to meet the water quality standard requirements, there is no need to address this issue.

Department's Exceptions

The Department takes exception to findings by hearing officer with regard to the size of the project, whether it is located in an OFW, and whether Mr.

Edwards misapplied the public interest test. These exceptions reiterate issues raised in-the Exceptions to Finding of Fact of Mr. Cullen Numbers 1, 2 and 7, and are accepted or the same reasons and to the same extent that I accepted Mr. Cullen's exceptions on these items.

CONCLUSION

A permit denial in this case is dictated by the hearing officer's findings that Mr. Cullen failed to provide reasonable assurance that water quality standards would not be violated by the project. While I have rejected the hearing officers findings with regard to application of the public interest test and the location of this project within an OFW, such rejections cannot supersede the effect of the water quality findings, since such findings are a prerequisite to issuance of a wetlands-resource permit. There is competent substantial evidence to support these findings, and so I am not at liberty to overturn them. While some of the water quality problems found by the hearing officer might be

:solved by additional permit conditions, I cannot find any basis in the record for proposing additional conditions that would resolve all problems with the project, particularly the difficult problems with biological integrity. I can only conclude, therefore, chat if a marina is at all permutable at this location, a significant reconsideration of the project design in. A new permit application would be necessary to overcome these problems.

Therefore, it is ORDERED:

1. The findings of fact and conclusions of law of the hearing officer are accepted except as modified or rejected in this Final Order.

   
   

2. Permit application No. 44-105052-5 of Mr. Cullen is hereby denied.

Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department In the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by filing a copy of the Notice Of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the clerk of the Department.

DONE AND ORDERED in Tallahassee this 27th day of September 1990.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

DALE TWACHTMANN

Secretary

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

Telephone: (904)488-4805

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by hand-delivery to Joyous Parish, of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, FL 32399-1550, and to Cecile Ross, Assistant General Counsel, 2600 Blair Stone Road, Tallahassee, FL 32399-2400; and by U.S. Mail to Robert A. Routa, P. O. Drawer 6506, Tallahassee, FL 32314, Charles Lee, Audubon Society, 1101 Audubon Way, Maitland, Florida 32751, Linda McMullen, McFarlain, Sternstein, Wiley and Cassedy, P.A., Post Office Box 2174, Tallahassee, FL., 32316 on this 28th day of September, 1990.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

DANIEL H. THOMPSON

General Counsel

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

Telephone: (904)488-9730

Docket for Case No: 89-003779

Orders for Case No: 89-003779