STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SARASOTA COUNTY, )
)
Petitioner, )
)
and )
) MIDNIGHT PASS SOCIETY, INC., )
)
Intervenor, )
)
vs. ) Case NO. 90-3533
) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )
)
Respondent, )
)
and )
) MANASOTA-88, INC., SIERRA CLUB, ) INC., NORTH CASEY KEY ASSOCIATION,) and JEFFREY JONES, )
)
Intervenors. )
)
RECOMMENDED ORDER
Pursuant to notice, a final hearing in the above-styled matter was held on October 15-18, 1990, in Sarasota, 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 Petitioner: Joseph W. Landers, Jr.
Richard A. Lotspeich LANDERS & PARSONS, P.A.
Post Office Box 271 Tallahassee, Florida 32302
Richard E. Nelson and Richard L. Smith
Nelson, Hesse, Cyril, Smith Widman, Herb, Causey & Dooley Post Office Box 2524 Sarasota, Florida 34237
For Midnight Pass
Society, Inc.: David M. Levin
Icard, Merrill, Cullis, Timm, Furen and Ginsburg
P.O. Drawer 4195 Sarasota, Florida 34237
For Department: Richard T. Donelan, Jr.
Assistant General Counsel Department of Environmental Regulation
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
For Manasota-88, Inc. Sierra Club, Inc., North Casey Key Association, and
Jeffrey Jones : Thomas W. Reese
2951 61st Avenue South
St. Petersburg, Florida 33712 STATEMENT OF THE ISSUE
The central issue in this case is whether the Department of Environmental Regulation (Department) should grant a permit requested by Sarasota County (County). The purpose of the permit is to allow the dredging of an inlet which would connect the waters of Little Sarasota Bay to the Gulf of Mexico at a location commonly known as Midnight Pass. This permit request is supported by the Intervenor, Midnight Pass Society, Inc. (Society) and is opposed by the Intervenors, Manasota-88, Inc., North Casey Key Association, Sierra Club, Inc., and Jeffrey Jones (collectively referred to as Intervenors). The Department's preliminary decision, issued on May 9, 1990, was to deny the permit requested.
PRELIMINARY STATEMENT
On May 9, 1990, the Department issued a Notice of Permit Denial which notified the County that its request for a permit to reopen Midnight Pass by dredging/filling an inlet, two access channels, a deposition basin, and spoil areas was being denied. The County timely filed a challenge to that denial and the matter was forwarded to the Division of Administrative Hearings for formal proceedings on June 6, 1990. On June 25, 1990, the Society was granted permission to intervene on behalf of the County. On July 9, 1990, an order was entered granting Manasota-88, Inc. `s request to intervene in support of the Department's position. Subsequently, the other Intervenors were granted leave to participate in the proceedings.
The County and the Department prefiled direct expert testimony in accordance with an order dated July 24, 1990. At the hearing, the County presented the testimony of the following witnesses: Clifford L. Truitt, Thomas
Fraser, James K. Cutler, Roy R. Lewis, III, G. Jeffrey Churchill, Mark M. Leiby, Belinda S. Perry, Charles Richards, Steven Sauers, Peter Greenan, Vernon Frost, Cee Wolheim, and J.P. Marchand. The County's exhibits numbered 1 through 27, 29, 31 through 33, 36, 38, and 39 have been admitted into evidence.
The Society presented the testimony of Brian Martel, Charles Crawford, Janet Petrecca, Alita Tush, Paul Meares, Jim Herbert, John Azar, and Bob Pelham. The Society's exhibits numbered 3, 5, and 6 were admitted into evidence.
The Department's witnesses were: Kenneth Echternacht, Frank Nearhoof, T. Payson Wilber, Robert L. Stetler, Kimberly A. Dryden, and Randall A. Armstrong. The Department's exhibits numbered 1 through 8, and 10 through 13 were admitted into evidence. The Intervenors presented the testimony of Mary Sheppard, John MacFarlane, and Jeffrey Jones.
In accordance with Rule 22I-6.031, Florida Administrative Code, the parties waived the provisions of Rule 28-5.402, Florida Administrative Code, and requested fifteen days from the filing of the transcript within which to file their proposed recommended orders. The transcript was filed on November 5, 1990. Specific rulings on the proposed findings of fact submitted by the parties are included in the attached appendix.
FINDINGS OF FACT
Based upon the testimony of the witnesses, the documentary evidence received at the hearing, the admissions of the parties, and the stipulation entered into by the parties, the following findings of fact are made:
Pursuant to Chapter 403, Florida Statutes, the Department has permitting authority over the dredge and fill activities proposed by the permit application which is the subject matter of this case.
Application NO. 581473069 which is the subject of this proceeding was filed by the County and received by the Department on March 28, 1988. Following the submission of additional materials by the applicant, the Department deemed the file was complete on February 3, 1989. The application by Sarasota County is to excavate Midnight Pass, an inlet to the Gulf of Mexico which closed in 1983. The County seeks to dredge an inlet, two access channels and a deposition basin. Some of the dredged materials are to be deposited along the nearby beaches of Siesta Key and Casey Key. The County owns a stretch of beach and uplands along the areas to be dredged to form the new inlet.
The project site is located at the juncture of Siesta Key and Casey Key. These Keys form a barrier along the western boundary of Little Sarasota Bay. The purpose of the excavation is to reconnect Little Sarasota Bay to the adjacent waters of the Gulf of Mexico. Prior to 1983, an inlet had been located at the approximate location of the proposed dredging.
Little Sarasota Bay (LSB) and the Gulf of Mexico (Gulf) are Class III Waters. LSB was designated an Outstanding Florida Water (OFW) on April 29, 1986. The Gulf of Mexico at the project location is not an OFW.
LSB parallels the Gulf of Mexico; its boundaries are defined by Stickney Point to the north and Blackburn Point to the south. Currently, access to the Gulf from within LSB is obtained by routing either north through Big Sarasota Pass, nine miles, or south through Venice Inlet a distance of eight miles.
From as early as 1883, an inlet connecting the LSB to the Gulf existed near the proposed inlet. Navigation charts from that time establish the location of the inlet near Bird Island which is directly east of the point
between where Siesta Key and Casey Key now connect. Storms over the years changed the exact location of the pass but the general location remained near Bird Island.
The inlet shifted periodically through the decades and during the 1970s the pass acquired a northwest-southeast axis. In fact, the axis continued to shift so dramatically that the foundations of two homes on the southern tip of Siesta Key were threatened. Simultaneously, the coastal beach along the northern stretch of Casey Key eroded badly.
Ultimately, the two property owners of the homes threatened on Siesta Key filed an application with the Department for a permit to close the pass at its shifted location. They also proposed to reopen the inlet at a point approximately 1250 feet to the south of the meandering pass. A permit to close the pass was never issued by the Department.
On October 5, 1983, the County adopted a resolution to allow the property owners to relocate the inlet, by then commonly known as Midnight Pass, with the condition that should the pass close to normal tidal flow within two years, that the owners would, at their expense, reopen the inlet in the same general location.
On November 23, 1983, the Department notified the owners that an evaluation of the requested permit could not be completed in time to prevent damage to their properties. Consequently, the property owners elected to proceed under provisions governing a class A emergency which was then described by Rule 17-4.28(5)(a), Florida Administrative Code. Under that rule, the property owners were required to seek an after-the-fact permit in order to authorize the work performed.
During December, 1983, Midnight Pass was closed by a sediment plug being bulldozed into its opening. This work was accomplished at the direction of the property owners whose homes were then threatened. The owners attempted to relocate the pass to the south but that dredged cut closed naturally. Several additional attempts to reopen Midnight Pass from December, 1983 through March, 1984, also proved unsuccessful. Each dredged opening closed within a short amount of time. Eventually, the costs associated with the project exceeded the owners' resources. The owners abandoned their effects to obtain an after-the-fact permit for the work they had performed.
Following the closure of Midnight Pass, the erosion along the beach of Casey Key stopped. In fact, an accretion of beach has occurred along that Key since 1984.
In November, 1983, the County created a panel to study the options regarding Midnight Pass. That panel was to review the environmental aspects of all options and to make technical recommendations to the County as to the long- range environmental benefits for the area.
Finally, in September, 1986, the County adopted a resolution which determined that the reopening of Midnight Pass was consistent with the Revised and Updated Sarasota County Comprehensive Plan.
In the application which is the subject of this case, the County proposes to dredge an inlet channel to a depth of twelve feet NGVD with side slopes of a ratio 1:10 (vertical:horizontal). By design, the inlet channel
would be 160 feet at the bottom and 400 feet at its top. The cross-sectional area of the proposed channel is 3,000 square feet. Approximately 45,000 cubic yards of material will be dredged to construct the inlet channel.
Additionally, the County proposes to dredge two access channels (north and south) along Bird Island to connect the inlet through LSB to the Intracoastal Waterway (ICW) which is located to the east of the project site. The design criteria for the south channel require a 200 foot bottom width and a
252 foot top width with a depth of nine feet NGVD. The design criteria for the north channel specify a bottom width of 140 feet, a top width of 182 feet, and a depth of seven feet NGVD. The side slopes of both channels are to be 1:3. In order to complete these channels, it is expected that approximately 283,000 cubic yards of material will be dredged from the channel sites.
In order to complete both access channels it is expected that 43.8 acres of wetlands will be affected by the dredging.
The proposed project also has a deposition basin which will be dredged in a triangular shape east of the new inlet and west of Bird Island at the point where the north and south channels previously described are to intersect. The dredging of the deposition basin will affect approximately 3.6 jurisdictional acres including a sandflat and mangroves.
By design the deposition basin would be dredged to a depth of approximately 7.5 feet. The basin is to serve as a sump area into which sediments may accumulate. The accumulated silt/sands would then be dredged for placement on the nearby beaches.
The County proposes to deposit portions of the dredged materials from the initial construction along the shorelines of Siesta Key and Casey Key. By design, this placement is intended to enhance the coastal beaches a distance of 5,000 feet along Siesta Key and a distance of 3,000 feet along Casey Key. The beach additions are to deter further erosion such as occurred prior to the closing of the pass in 1983.
If approved, this project will require an inlet and beach maintenance program so that sand obtained from the deposition basin and the inlet can be periodically removed and redeposited on the beaches. The maintenance dredging may extend as long as the inlet exists.
The project site is located in an area designated as a critical habitat for the West Indian manatee.
In connection with the permit request, the County has proposed a manatee protection program regarding that endangered species. During construction of the project, the County's program requires: instruction to all construction personnel regarding the need to avoid collisions with manatee; operation of all project vessels at "no wake" speeds at all times while in shallow waters or channels where the draft of the boat provides less than 3 feet clearance to the bottom; advising the contractor and all construction personnel of the liability and penalties for harming, harassing or killing manatees; having the contractor keep a log detailing all sightings, collisions, damage, or deaths of manatees during the contract period.
Following the construction period, it is anticipated that increased motorboat traffic in the pass vicinity would be an increased potential danger to manatees.
The beach in the project area is nesting habitat for the loggerhead sea turtle, an endangered species. The nesting season for turtles runs from May
1 through August 31 of each year. Turtle hatchlings emerge from the nests through October.
Once dredged, the beach area in the pass vicinity would be permanently lost for the purpose of turtle nesting.
The County has proposed a turtle protection program. This program requires that the contractor conduct daily dawn patrols of the beach areas so that nests may be located and protected in order to assure the survival of turtle hatchlings. Additionally, the County would limit construction activities to those periods when turtle nesting would not be likely.
The proposed project will not adversely impact historical or archaeological resources.
The proposed project is permanent rather than temporary in nature. It is anticipated that in order to retain design specifications, project areas will have to undergo periodic maintenance dredging. During those periods, dangers similar to those recognized for the initial construction period would exist for manatees utilizing their habitat.
During the time the inlet location meandered prior to 1983, the dissolved oxygen and salinity levels in LSB decreased. Since the closure of Midnight Pass, the LSB has evolved from a marine to an estuarine environment. As a result, the LSB has a longer freshwater residence time. Since closure there has not been a statistically significant decline in the dissolved oxygen and salinity levels. The levels now established within LSB are fairly typical for a healthy estuarine system.
The tidal exchange for the LSB currently depends on Gulf waters shifting through the Venice Inlet and Big Sarasota Pass. If Midnight Pass were to be reopened, it is expected that the dissolved oxygen and salinity levels will increase. In short, the County proposes to recreate a marine environment.
As such, it is expected that an increased number of fishes and shrimp from the Gulf will be carried through the inlet into the LSB. While the influx of these fishes and shrimp may benefit commercial or recreational fishermen, the flushing and arrival of predator fishes will adversely affect the nursery habitat now enjoyed by the fish community currently within the LSB.
Prior to and following the closure of Midnight Pass, the submerged areas of LSB in the vicinity of the inlet were vegetated with seagrasses. A significant portion of these grasses (shoalgrass, turtle grass, manatee grass, and halophila) will be dredged if the proposed project is implemented. If dredged, these areas will no longer serve as a nursery to young fishes. Additionally, the grassy flats will no longer be available to the numerous species of wading birds which frequent the areas since the closure of the pass.
The dredging proposed by the County would eliminate at least 50 acres of wetlands. At least ten acres of seagrasses to be dredged would not be expected to reseed or colonize in the deep channel cuts. Increased motorboat traffic, which is an expected result of the pass reopening, would also limit grasses from reestabishing in shallower areas due to damage caused by propellers.
Additionally, it is expected that the increased tidal action through the reopened pass would result in scouring of the surviving seagrass beds.
The proposed project will not adversely affect navigation. It is expected that travel times for boaters desiring to route from within LSB to the Gulf would decrease.
The proposed project will require beach renourishment to continue for an indefinite period of time. Otherwise, it is expected that harmful erosion will reoccur along the Casey Key beach area.
Based upon the record in this case, it is impossible to conclude that, as a matter of fact, marine environments serve a more useful environmental purpose than estuarine systems. Additionally, the water quality within LSB will not be significantly improved as a result of the reopening of the inlet.
The beneficial changes expected to result from the reopening of the pass do not offset the adverse affects reasonably expected to be caused by the dredging.
The Department has not permitted the destruction of a habitat of this size without requiring the applicant to provide extensive mitigation.
The County has proposed to plant an area along Casey Key in order to compensate for the loss of 1.3 acres of mangroves. The planting is intended to reestablish mangroves, cordgrass and buttonwoods. The invader, less desirable, species would be removed from the area. Further, the County intends to provide a 75 percent survival rate for the newly planted vegetation.
Mitigation for the loss of the dredged seagrasses has not been proposed by the County.
The County has not established that the project to reopen Midnight Pass is clearly in the public interest.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding.
In this case, the County bears the burden of establishing its entitlement to the permit requested.
Section 403.918, Florida Statutes, provides, in part: A permit may not be issued under ss. 403.91-
403.929 unless the applicant provides the
department with reasonable assurances 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.
In this case, the Department does not dispute that the reopening of the pass will not violate water quality standards. The County has not established, however, that the reopening of the inlet will somehow improve water quality and justify the proposed dredging. The current water quality within LSB is acceptable for an estuarine system. The present water quality of the Gulf has not been established. The return to a marine environment will not improve the system but simply change its characteristics. Had the County desired to preserve the marine environment, action should have been taken in 1983 to stabilize the inlet. This error cannot be reversed unless the current project is shown to be clearly in the public interest.
An applicant must establish that a project to be located within an OFW is clearly in the public interest. Section 403.918(2), Florida Statutes, sets forth the criteria which must be balanced to determine if a project is clearly in the public interest. Those criteria are as follows:
Whether the project will adversely affect the public health, safety, or welfare or the property of others;
Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;
Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project;
Whether the project will be of a temporary or permanent nature;
Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of S. 267.061; and
The current condition and relative value of functions being performed by areas affected by the proposed activity.
In the case at issue, the County has failed to establish that the proposed project is clearly in the public interest. Based upon the criteria cited above, the County has not demonstrated that any of the positive consequences expected to flow from this project would balance or outweigh the negative impacts which are reasonably expected. Advantages to boaters or recreational users of the pass do not adequately offset the impacts to the manatee, the estuarine fisheries, the seagrasses, the mangroves, the turtles, and the birds which are currently utilizing this estuarine environment. Committing a second environmental wrong, the extensive dredging required by this project, will not restore the area to the glory it enjoyed in the 1960s and 1970s. Regrettably, those days are past. The gradual, natural closing of Midnight Pass which occurred prior to 1983 signalled that this marine environment was short-lived. Self-interested property owners completed the demise of the marine environment. That LSB has emerged a productive estuarine system despite storm water runoffs and man-injected pollutants is a credit to
nature. At this point, the County's efforts to stabilize an inlet are not timely. There is no inlet to repair. The County has not established that this project is permittable under the guidelines that now govern this activity.
Based upon the foregoing, it is
RECOMMENDED that the Department of Environmental Regulation enter a final order denying the permit requested by Sarasota County.
DONE and ENTERED this 19 day of February, 1991, in Tallahassee, Leon County, Florida.
Joyous D. Parrish Hearing Officer
Division of Administrative Hearings
The DeSoto Building 1230 Apalachee Parkway
Tallahassee, Florida 32301
(904)488-9675
Filed with the Clerk of the Division of Administrative Hearings this 19 day of February, 1991.
APPENDIX TO CASE NO. 90-3533
RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT:
Paragraphs 1 through 19 are accepted.
Paragraphs 20 through 24 are rejected as irrelevant, speculative or immaterial to the issues of this case.
Paragraphs 25 and 26 are accepted.
Paragraphs 27 through 29 are rejected as irrelevant.
Paragraph 30 is accepted.
Paragraph 31 is accepted with the deletion of the quotation marks around the word monitor and with the deletion of the last phrase following the words "survival rate" which is rejected as argumentative or irrelevant or not supported by the record.
Paragraphs 32 through 36 are accepted.
Paragraph 37 is rejected as repetitive.
Paragraphs 38 through 40 are accepted.
Paragraph 41 is rejected as contrary to the weight of the evidence.
Paragraphs 42 through 44 are accepted.
Paragraph 45 is rejected as irrelevant or unnecessary to the resolution of the issues of this case.
Paragraphs 46 through 48 are accepted.
Paragraphs 49 through 53 are rejected as irrelevant, unnecessary to the resolution of the issues, comment, repetitive, or argumentative.
Paragraphs 54 through 62 are accepted.
Paragraph 63 is rejected as repetitive.
Paragraph 64 is rejected as irrelevant.
Paragraphs 65 and 66 are accepted.
Paragraph 67 is rejected as irrelevant or contrary to the weight of the evidence.
Paragraphs 68 through 73 are accepted.
RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE INTERVENORS
The Intervenors submitted proposed findings of fact and conclusions of law which were not designated by category. To rule on the proposal each paragraph was reviewed as numbered and submitted--because many paragraphs contained both fact and argument, those paragraphs have been rejected as indicated. Only those paragraphs containing only representation of facts have been treated as proposed fact.
In the future, it is recommended that Rule 221-6.031(3), Florida Administrative Code, be met.
The first two sentences of paragraph 1 are accepted; otherwise rejected as contrary to the weight of the evidence.
Paragraph 2 is rejected as irrelevant.
The first two sentences of paragraph 3 are accepted; otherwise rejected as contrary to the weight of the evidence or unsupported by the record.
Paragraphs 4 through 6 are accepted.
With regard to the paragraph 7, with the deletion to the reference to the approximate dimension of the dune which is not supported by the weight of the evidence, it is accepted.
Paragraphs 9 and 10 are accepted.
Paragraphs 11 and 12 are rejected as argument.
Paragraphs 13 through IS are rejected as conclusions of law.
Paragraphs 16 through 18 are rejected as argument, comment, or contrary to the weight of the evidence.
Paragraph 19 is accepted.
Paragraphs 20 through 30 are rejected as argument, conclusions of law, or contrary to the weight of the evidence.
Paragraphs 31 and 32 are accepted.
To the extent that it refers to loggerhead sea turtle, paragraph 33 is accepted.
Paragraphs 34 through 37 are rejected as argument.
Paragraphs 38 and 39 are accepted.
With the deletion of the last sentence (which is argument), paragraph 40 is accepted.
Paragraphs 41 and 42 are rejected as argument.
Paragraphs 43, 44, 46, and 51 are accepted.
Paragraphs 45, 47, 48, 49, and 50 are rejected as argument, repetitive, irrelevant, or contrary to the weight of the evidence.
RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE COUNTY:
In the future, it is recommended that Rule 221-6.031(3), Florida Administrative Code, be met.
Paragraph 1 is accepted.
With regard to paragraph 2, it is accepted that the paragraph accurately outlines the County's intentions; however, such paragraph as to fact is not supported by the weight of the evidence.
Paragraphs 3 through 6 are accepted.
With the clarification that the pass has not existed since 1983, paragraph 7 is accepted.
Paragraphs 8 through 11 are accepted.
Paragraph 12 is rejected as irrelevant.
Paragraphs 13 through 20 are accepted.
Paragraph 21 is accepted with addition of the phrase "Most, if not all1V instead of ?~all.~~ Presumably, unsuitable materials, if any, would not be utilized.
Paragraphs 22 through 24 are accepted.
Paragraph 25 is rejected as repetitive or contrary to the weight of the evidence.
Paragraphs 26 through 28 are accepted.
Paragraph 29 is rejected as contrary to the weight of the evidence.
Paragraphs 30 and 31 are accepted.
With the deletion of the word ?~minimal~~ paragraph 32 is accepted; otherwise rejected as contrary to the weight of the evidence.
Paragraph 33 is rejected as contrary to the weight of the evidence.
Paragraph 34 is accepted to the extent that it accurately states tidal flushing will dramatically increase if the pass is reopened. The flushing currently extends throughout LSB but at a reduced volume. Otherwise rejected as irrelevant.
The first sentence of paragraph 35 is accepted; the balance is rejected as contrary to the weight of the evidence.
Paragraph 36 is accepted.
The first sentence of paragraph 37 is accepted; otherwise rejected as contrary to the weight of the evidence.
With regard to paragraph 38, it is accepted that the rainfall amounts can affect salinity levels; otherwise rejected as speculation.
Paragraph 39 is accepted.
Paragraphs 40 through 44 are rejected as contrary to the weight of the evidence.
Paragraph 45 is accepted.
Paragraph 46 is rejected as unsupported by the weight of the evidence unless limited to the criteria listed in paragraph 45.
Paragraph 47 is rejected as irrelevant or contrary to the weight of the evidence presented.
Paragraph 48 is accepted.
Paragraph 49 is rejected as contrary to the weight of the evidence.
Paragraphs 50 through 51 are accepted.
With regard to paragraph 52, it is accepted only as to property owners north of the project. It is rejected as contrary to the weight of the evidence as to property owners along Casey Key.
Paragraphs 53 through 56 are accepted.
Paragraph 57 is rejected as contrary to the weight of the evidence.
Paragraph 58 is accepted.
Paragraphs 59 through 63 are rejected as contrary to the weight of the evidence.
With the substitution of the word "would" for "will" paragraph 64 is accepted. The County has not established that seagrasses will increase within the project area.
Paragraphs 65 and 66 are rejected as contrary to the weight of the evidence.
Paragraphs 67 through 69 are accepted.
Paragraphs 70 and 71 are rejected as contrary to the weight of the evidence.
Paragraph 72 is rejected as irrelevant.
Paragraphs 73 and 74 are rejected as irrelevant, contrary to the weight of the evidence, or speculation.
Paragraph 75 is accepted but is irrelevant. Opening of the pass will not assure that edible shellfish will reenter and inhabit the area. The most state- of-the art inlet does not, through its design, restore an area to the environmental splendor it once enjoyed.
Paragraphs 76 and 77 are rejected as contrary to the weight of the evidence.
Paragraph 78 is accepted.
Paragraphs 79 through 81 are rejected as contrary to the weight of the evidence.
Paragraph 82 is rejected as vague.
Paragraphs 83 through 86 are rejected as contrary to the weight of the evidence.
Paragraphs 87 through 90 are accepted.
Paragraph 91 is rejected as repetitive and contrary to the weight of the evidence.
Paragraph 92 is rejected as contrary to the weight of the evidence.
Paragraphs 93 through 96 are accepted.
Paragraph 97 is rejected as contrary to the weight of the evidence.
Adverse results from the loss of the beaches where the inlet would be cut together with increased human contact in the area establish an adverse impact on turtles.
Paragraphs 98 and 99 are accepted.
Paragraph 100 is rejected as contrary to the weight of the evidence.
Paragraphs 101 and 102 are accepted.
Paragraph 103 is rejected as comment or argument.
Paragraph 104 is rejected as contrary to the weight of the evidence.
Paragraphs 105 through 107 are accepted.
Paragraph 108 is accepted to the extent that those fish are readily available within the Gulf.
The first two sentences of paragraph 109 are accepted. The remainder of the paragraph is rejected as contrary to the weight of the evidence.
To the extent the paragraph refers to marine (and not estuarine productivity), paragraph 110 is accepted.
Paragraph 111 is rejected as vague.
Paragraph 112 is rejected as contrary to the weight of the evidence.
Paragraph 113 is accepted.
Paragraphs 114 through 117 are rejected as contrary to the weight of the evidence.
Paragraphs 118 and 119 are accepted.
Paragraph 121 is rejected as contrary to the weight of the evidence.
Paragraphs 122 through 124 are accepted.
Paragraphs 125 and 126 are rejected as contrary to the weight of the evidence.
RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE SOCIETY:
In the future it is recommended that Rule 221-6.031(3), Florida Administrative Code, be met.
1. Paragraphs 1, 3, 4, 5, 6, 10, 11, 12, 13, 15, 16, 17, 20, 21, 24, 26, 27,
28, 30, 31, 32, 34, 35, 38, 56, 57, 58, 59, 69, 74, 80, 81, 82, 83, 85, 95, 96,
108 ,117, 118, 120, 122, 124, 125, 126,127, 129, 130, 134, 135, 138, 139, 140,
149, 155, 156, 159, 160,161, 164, and 168 are accepted.
Except as to (3), paragraph 2 is rejected as contrary to the weight of the evidence.
Paragraph 7 is accepted but is irrelevant. The parties have not disputed that the pass has generally remained in the vicinity of Bird Island (which hasn't moved). Consequently, access to the pass has been either to the north or south of the island, hence two routes established.
Paragraphs 8 and 9 are rejected as irrelevant and speculative.
Paragraph 14 is rejected as irrelevant or unsupported by the weight of the evidence.
The first two sentences of paragraph 18 are accepted; the remainder is rejected as contrary to the weight of the evidence.
Paragraph 19 is rejected as irrelevant.
Paragraphs 22 and 23 are rejected as irrelevant or argument.
With the substitution of the phrase "Most, if not all" for the word "all", paragraph 25 is accepted.
Paragraph 29 is rejected as contrary to the weight of the evidence.
Paragraph 33 is rejected as contrary to the weight of the evidence.
With the deletion of the word "minimal" paragraph 36 is accepted.
Paragraph 37 is rejected as contrary to the weight of the evidence.
Paragraph 38 is accepted to the extent that flushing would be greatly increased were the pass reestablished.
Paragraphs 39 through 54 are rejected as argument, irrelevant, or unsupported by the weight of the evidence.
The first sentence of paragraph 55 is accepted; the remainder rejected as unsupported by the weight of the evidence.
Paragraphs 60 through 68 are rejected as contrary to the weight of the evidence.
Paragraph 72 is accepted but is irrelevant.
Paragraph 73 is rejected as contrary to the weight of the evidence.
With the clarification that paragraph 76 is limited to property owners to the north of the project, it is accepted; otherwise rejected as contrary to the weight of the evidence.
Paragraphs 77 through 79 are rejected as irrelevant or contrary to the weight of the evidence.
Paragraph 84 is rejected as contrary to the weight of the evidence.
Paragraphs 86 through 90 are rejected as contrary to the weight of the evidence.
Paragraph 91 is accepted but is not established in this case.
Paragraphs 92 and 93 are rejected as contrary to the weight of the evidence.
Paragraph 94 is accepted but is irrelevant.
Paragraphs 97 through 101 are rejected as contrary to the weight of the evidence, irrelevant, or incorrect.
Paragraph 102 is accepted but is irrelevant. The reopening of the pass will not assure that edible shellfish will return to the LSB. Respondents have repeatedly tried to inject facts about what the area once was as the basis for justifying the proposed project. In this case, the current status of the project area is a healthy estuarine system. It may not be as esthetically beautiful as the area was in the 1960s or 1970s but it is, nevertheless, a functioning, useful system.
Paragraphs 103 through 107 are rejected as irrelevant or contrary to the weight of the evidence.
Paragraphs 109 through 116 are rejected as contrary to the weight of the evidence, irrelevant, or vague.
31. Paragraphs 119, 121, 123, 128, 131, 132, 137, 148, 150, 151, 152, 153, 154,
157, 158,162, 163, and 167 are rejected as contrary to the weight of the evidence.
The first two sentences and the last sentence of paragraph 133 are accepted. The remainder is rejected as contrary to the weight of the evidence.
Paragraph 136 is rejected as comment or argument.
The first two sentences of paragraph 142 are accepted. The remainder of the paragraph is rejected as contrary to the weight of the evidence.
Paragraph 143 is rejected as irrelevant, speculative (presuming facts not in evidence), and contrary to weight of the record.
Paragraph 144 is accepted but is irrelevant.
Paragraph 145 is rejected as vague.
Only to the extent that those fish may be in the adjacent Gulf waters (an assumption) is paragraph 146 accepted--the inlet would provide access for all aquatic species to enter the LSB.
Paragraph 147 is rejected as speculation--presumes facts not in evidence.
Paragraph 169 is rejected as irrelevant or argument.
COPIES FURNISHED:
Joseph W. Landers, Jr. Richard A. Lotspeich LANDERS & PARSONS, P.A.
Post Office Box 271 Tallahassee, Florida 32302
Richard E. Nelson and Richard L. Smith
Nelson, Hesse, Cyril, Smith Widman, Herb, Causey & Dooley Post Office Box 2524 Sarasota, Florida 34237
David M. Levin
Icard, Merrill, Cullis, Timm, Furen and Ginsburg
P.O. Drawer 4195 Sarasota, Florida 34237
Richard T. Donelan, Jr. Assistant General Counsel Department of Environmental Regulation
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Thomas W. Reese
2951 61st Avenue South
St. Petersburg, Florida 33712
Carol Browner, 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
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
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AGENCY FINAL ORDER
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STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION
SARASOTA COUNTY,
Petitioner,
and
MIDNIGHT PASS SOCIETY, INC.,
Intervenor,
vs DOAH Case No. 90-3533
OGC File No. 90-0857
DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondent,
and
MANASOTA-88, INC.; SIERRA CLUB, INC.; NORTH CASEY KEY ASSOCIATION, AND JEFFREY JONES,
Intervenors.
/
FINAL ORDER
On February 19, 1991, a Hearing Officer from the Division of Administrative Hearings submitted her Recommended Order to the Department of Environmental Regulation ("Department") and all other parties to this action. A copy of the Recommended Order is attached as Exhibit "A". She recommended that the Department deny Sarasota County's application for a permit to dredge an inlet from the Gulf of Mexico to Little Sarasota Bay ("LSB") at a location commonly known as Midnight Pass. Sarasota County and Midnight Pass Society, Inc., ("MPS") timely filed exceptions to the Recommended Order 1/ Intervenors Manasota-88, Inc., Sierra Club, Inc., North Casey Key Association, and Jeffrey Jones (hereinafter referred to collectively as "Respondent Intervenors") and counsel for the Department timely filed responses to each of the exceptions of Sarasota County and MPS. MPS filed a request for oral argument. The matter thereupon came before me as Secretary of the Department for final agency action.
BACKGROUND
This case concerns an application by Sarasota County for a dredge and fill permit to dredge an inlet which would establish a connection between the waters of LSB to the Gulf of Mexico at a location commonly known as Midnight Pass. On May 9, 1990, the Department issued a notice of intent to deny the permit, and
Sarasota County initiated this administrative proceeding. MPS intervened on behalf of reopening the pass, and the Respondent Intervenors intervened in opposition to the proposed project.
Midnight Pass is located at the juncture of Siesta Key to the north, and Casey Key to the south, in Sarasota County, about halfway between the cities of Sarasota and Venice. These keys form a barrier along the western boundary of LSB, which is designated as Class III Waters and as an Outstanding Florida Water. in order to obtain a permit to dredge and fill in an Outstanding Florida Water, the applicant must show, among other things, that the project is clearly in the public interest. Section 403.918(2), Florida Statutes. The Hearing Officer concluded that the applicant failed to make that showing.
LSB parallels the Gulf of Mexico, and its boundaries are defined by Stikney Point to the north and Blackburn Point to the South. Currently, access to the Gulf of Mexico from within LSB is either through Big Sarasota Pass, nine miles to the north, or Venice inlet, eight miles to the south. At the site of Midnight Pass, the Gulf of Mexico is designated as Class III Waters, but is not designated as an Outstanding Florida Water.
Navigation charts show that as early as 1883 an inlet in the vicinity of Midnight Pass connected LSB to the Gulf. Over the years, storms periodically shifted the location of the Midnight -Pass inlet. in the 1970's, the inlet had a northwest-southeast axis which continued to shift at a rate that dramatically threatened erosion of the foundations of two homes on the southern tip of Siesta Key. At the same time, the coastal beach along the northern stretch of Casey Key also suffered serious erosion.
On September 12, 1983, the two property owners of the homes threatened by erosion on Siesta Key applied for a permit from the Department to close Midnight Pass at its existing location, and to relocate the inlet approximately 1250 feet to the south. On November 23, 1983, the Department notified the property owners that an evaluation of their permit application could not be completed in time to prevent erosion damage to their properties. The Department informed the property owners that they could proceed with their project in reliance on Department Rule 17-4.28(5)(a), F.A.C. 2/ That rule allows temporary measures to be taken without permit to correct or give relief to emergencies which involve the loss of human life, limb, or property due to calamitous occurrences. Sometime during December of 1983, the property owners closed the pass.
Several times during the period from December of 1983 to March of 1984 the property owners attempted to relocate the Midnight Pass inlet approximately 1250 feet to the south, but each attempt to reopen an inlet failed when each dredged opening naturally closed within short periods of time. The property owners abandoned their efforts in March of 1984 and Midnight Pass has since remained closed.
Following the closure of Midnight Pass, the erosion along the beach of Casey Key ceased. In fact, an accretion of beach has occurred along Casey Key since 1984.
Almost since the closing of Midnight Pass in December of 1983, Sarasota County has considered and conducted studies on whether the pass should be reopened. in September of 1986, Sarasota County adopted a resolution which determined that the reopening of Midnight Pass was consistent with Sarasota County's Comprehensive Plan, and on March 28, 1988, Sarasota County applied for the permit which is the subject of this proceeding. 3/
Sarasota County proposed to reopen Midnight Pass by dredging an inlet channel to a depth of twelve feet NGVD and a width of 400 feet at the top. The cross-sectional area of the proposed inlet channel is 3,000 square feet, and approximately 45,000 cubic yards of material will be removed. Sarasota County also proposes to dredge two access channels to connect LSB to the IntraCoastal Waterway east of the inlet site. In order to construct these access channels, an additional 283,000 cubic yards of material will have to be dredged. The dredging of the two access channels is expected to affect 43.8 acres of jurisdictional wetlands and will destroy about 10 acres of seagrass. No mitigation is proposed for this aspect of the project.
The proposed project also calls for the dredging of a deposition basin for the purpose of providing a sump area into which sediments may accumulate and later be removed as part of maintenance dredging. The deposition basin will affect approximately 3.6 acres of jurisdictional wetlands,including a sandflat and 1.3 acres of mangroves. The project proposes the planting of mangroves at a location on Casey Key to mitigate the loss of 1.3 acres of mangroves at the deposition basin site.
Periodic maintenance dredging is expected to be required for as long as the proposed inlet at Midnight Pass remains open. Sarasota County proposes to deposit portions of the dredged materials, from both the initial construction and from later maintenance dredging, along the shorelines of Siesta Key and Casey Key to enhance or renourish those beaches for a distance of 5,000 feet along Siesta Key and 3,000 feet along Casey Key.
The project site is located in an area designated as a critical habitat area for the endangered West Indian Manatee. The beach in the area of the proposed inlet at Midnight Pass is a nesting habitat for threatened loggerhead sea turtles, and numerous species of wading birds frequent the grassy flats in the project area. The project proposes special efforts and procedures for the protection of manatees and turtle nests during the construction phase.
After the pass was closed in December of 1983, the freshwater residence time in LSB increased, resulting in LSB evolving from a marine to an estuarine environment. The dissolved oxygen and salinity levels now established within LSB are fairly typical of a health estuarine system.
A formal hearing on this matter was held before a Hearing Officer of the Division of Administrative Hearings in Sarasota, Florida, on October 15 through 18, 1990. On February 19, 1991, the Hearing Officer issued a Recommended Order that the Department deny the permit. The Hearing Officer concluded that although reasonable assurance had been provided that the project would not violate water quality standards, the applicant failed to show that the project was clearly in the public interest, and therefore the project which involved dredging in an Outstanding Florida Water was not permittable under Section 403.918(2), Florida Statutes.
RULING ON REOUEST FOR ORAL ARGUMENT
MPS has requested oral argument before the Secretary of the Department.
Rule 17-103.200(3), F.A.C., provides that the Secretary, in her discretion, may grant oral argument. I decline to do so in this case. All parties have had an opportunity to file written pleadings in this matter, including the filing of
exceptions to the recommended order, and responses thereto. It does not appear that oral argument is necessary to clarify any issue in this case. Accordingly, the request for oral argument is denied.
RULINGS ON EXCEPTIONS TO FINDINGS OF FACT
Sarasota County and MPS both filed extensive exceptions to the Recommended Order. I have grouped these exceptions according to the following issues: Manatee Protection, Turtle Nesting impacts, Fisheries impacts, Seagrass impacts, Wetlands Impacted, Water Quality Improvement, Public interest Balancing Test, Miscellaneous Exceptions, Requests For Additional Findings of Fact, and Conclusions of Law. I shall discuss and rule on each exception by the above groupings.
1. Manatee Protection
Sarasota County Exception Number 1 and MPS Exception Numbers 6 and 8 are directed to the issue of adverse affects on the West Indian Manatee.
Sarasota County and MPS take exception to Finding of Fact ("FOF") No. 24, claiming that there is no competent substantial evidence in the record to support the finding that it is anticipated that increased motorboat traffic in the pass vicinity would be an increased potential danger to manatees. MPS additionally takes exception to the finding in FOF No. 29 that maintenance dredging will entail a danger to manatees similar to that during the construction phase.
At the outset, I note that where a Hearing Officer's finding of fact is supported in the record by any competent, substantial evidence I am not permitted to reweigh the evidence and reject the finding of fact. See, e.g., Florida Debt. of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987); Section 120.57(1)(b)1O., Florida Statutes. In this case the record does contain competent substantial evidence supporting FOF Nos. 24 and 29. The Hearing Officer's finding that increased motorboat traffic is an expected result of opening of the pass is not disputed. FOF No. 34. The area is designated as a critical habitat for the West Indian Manatee. FOF No. 22. The prefiled testimony of Ms. Kimberly A. Dryden states that "[a]n increase in boat/manate collisions associated with increased boat presence in the pass may occur." Dryden, PF-11.
Ms. Dryden was admitted as an expert in wildlife biology including expertise in manatees, and her prefiled testimony was accepted into evidence. TR-756-760.
Finally, the fact that Sarasota County itself proposed a manatee protection plan involving, among other things, that all project vessels operate at "no wake" speeds, supports the finding that increased motorboat traffic in the pass vicinity would be an increased potential danger to manatees.
Sarasota County and MPS point to the public notice of the U.S Army Corps of Engineers (Hearing Exhibit 26) and a U.S. Fish and Wildlife Service letter (Hearing Exhibit 27) as overwhelming evidence that no adverse effect on the manatee is expected. In essence, Sarasota County and MPS are asking me to reweigh the competent, substantial evidence. As noted above, I may not lawfully do that.
The parties do not dispute the Hearing Officer's finding that maintenance dredging is expected to be needed as long as the inlet remains open. FOF No.
21. For the reasons set forth above, the Hearing Officer's finding that maintenance dredging will present a danger to manatees similar to the construction is supported in the record by competent substantial evidence.
Sarasota County and MPS also assert that FOF No. 24 must be rejected because it is contrary to a stipulation of fact by the parties. Indeed, the record shows that a prehearing stipulation was filed and accepted into the record without objection at the hearing. TR-8. Stipulation of Fact No. 24 states:
With the implementation of recommendations of the U.S. Fish and Wildlife Service, it is not expected that the project will have a significant adverse impact on the manatee or its habitat.
Steven Sauers, Director of the Coastal Zone Division for Sarasota County, testified that he believed the County "could adhere to these [U.S. Fish & Wildlife Service] recommendations under a condition of authorization." TR-94-98.
I note that when the prefiled testimony of Ms. Dryden was accepted into evidence at the hearing, neither Sarasota County nor MPS objected to those portions dealing with manatee impacts as being contrary to Stipulation of Fact No. 24. I must therefore consider whether the failure to object constitutes a waiver of the stipulation, and whether the Hearing Officer, as the ultimate finder of the facts, is bound by a stipulation of fact when the record contains competent, substantial evidence which conflicts with the stipulation.
It has long been the eablished rule of law that stipulations of fact properly entered into are binding on both the parties and the court. See, e.g., Troup v. Bird, 53 So.2d 717, 721 (Fla. 1951) (where case is tried on stipulation, no further or different facts will be presumed to exist). Where a party seeks to be relieved from a stipulation, he or she generally must file a timely motion, with notice to opposing parties, showing good cause and no prejudice to opposing parties. U.S. Fire insurance Co. v. Roberts, 541 So.2d 1297 (Fla. 1st DCA 1989); Lopez v. Dublin Co., 489 So.2d 805, 807 n.3 (Fla. 3d DCA 1986); Munilla v. Perez-Cobo, 335 So.2d 584 (Fla. 3d DCA 1976), cert. den.,
344 So.2d 325 (Fla. 1977); Villa v. Mumac Construction Corp., 334 So.2d 274 (Fla. 3d DCA 1976); Curr v. Helene TransportatIon, 287 So.2d 695 (Fla. 3d DCA 1974).
Good cause requires showing of fraud, overreaching, misrepresentation, withholding of facts by the adversary party, or such other element as would render the agreement void. Spitzer v. Bartlett Brothers Roof in, 437 So.2d 758 (Fla. 1st DCA 1983); Citv of Vero Beach v. Thomas, 388 So.2d 1374 (Fla. 1st DCA 1980). In this case, neither the Department nor the Respondent Intervenors sought to be relieved from the stipulation, and there is no contention that any basis for good cause exits to be relieved from the stipulation.
However, it is also a long established rule of law that failure to contemporaneously object to the admission of contested evidence is a waiver of the right to object. See, e.g., Swan v. Florida Farm Bureau Ins. Co., 404 So.2d 802 (Fla. 5th DCA 1981); DeLuca v. State, 384 So.2d 212 (Fla. 4th DCA 1980),
rev. den., 389 So.2d 1108 (Fla. 1980); Ehrhardt, Florida Evidence, Section 104.1 (2d Ed 1984); Section 90.104, Florida Statutes. in this case the testimony which conflicts with the stipulation was pre-filed before the hearing and the opposing parties had ample opportunity to review it before the hearing. Yet, although
Sarasota County did raise objections to certain portions of Ms. Dryden's pre- filed testimony, no objection was raised to the portion relevant to impacts on manatees. TR-754-760.
There is also authority for the proposition that when evidence contrary to a stipulation is introduced at trial without objection, the finder of fact is not bound by the stipulation. Special Disability Trust Fund v. Myers, 492 So.2d 788 (Fla. 1st DCA 1986), cause dism'd, 491 So.2d 280 (Fla. 1986); Espada Enterprises Inc. v. Spiro, 481 So.2d 1265 (Fla. 1st DCA 1986); Woods v. Greater Naples Care Center, 406 So.2d 1172, 1173 (Fla. 1st DCA 1981), rev. den., 413
So.2d 876 (Fla. 1982).
In consideration of the above authorities and circumstances, I conclude that the Hearing Officer was not bound by the stipulation and could properly consider the relevant portion of Ms. Dryden's pre-filed testimony. Therefore the record contains competent, substantial evidence in support of the above findings of fact. Accordingly, the above noted exceptions of Sarasota County and MPS are denied.
Turtle Nesting Impacts
Sarasota County Exception No. 2 and MPS Exception No. 7 dispute FOF No. 26, which states that: "Once dredged, the beach area in the pass vicinity would be permanently lost for the purpose of turtle nesting." Sarasota County and MPS argue that although a portion of the beach will be removed to create the inlet, the loss of beach will not significantly impact on turtle nesting. Sarasota County and MPS contend that the "overwhelming weight" of the evidence is contrary to FOF No. 26. They are in essence asking me to reweigh the evidence.
For the reasons stated above, I cannot do so. If the finding of fact is supported in the record by any competent, substantial evidence, then I am not at liberty to reject it. Florida Department of Corrections, supra; Section 120.57(1) (b)10., Florida Statutes.
Ms. Belinda Perry, Projects Coordinator in the Coastal Zone Division of Natural Resources of the Sarasota County Natural Resources Department, testified that she had maintained records of sea turtle nests in the vicinity of Midnight Pass. She testified that on the average over the last eight years there have been four nests per year in the area that the new inlet at Midnight Pass will be located. Perry, TR-537-538; Perry PF-2, 5, 8. This is competent, substantial evidence of an adverse impact on the nesting habitat of sea turtles. Sarasota County and MPS argue that this impact is not "Significant." If I were to consider the "significance" of the loss of 4 nests per year for the purpose of accepting or rejecting FOF No. - 26, I would in effect be weighing that evidence. This I may not do. If the finding of fact is supported in the record by any competent, substantial evidence I may not reject it.
Although not articulated, Sarasota County and MPS may be arguing that when evidence which supports a finding of an adverse impact on an endangered or threatened species is "not
significant," then such evidence or finding of fact cannot be considered when weighing the seven factors set forth in the public interest balancing test of Section 403.918(2) (a), Florida Statutes. I reject any such argument as contrary to the law. Neither the statute nor any authority requires a minimum threshold weight for any of the factors. The statute merely requires the Department to "consider and balance" the seven criteria. For the foregoing reasons, Sarasota County's Exception No. 2 and MPS's Exception No. 7 are rejected.
Fisheries Impacts
Sarasota County Exception No. 4 and MPS Exception No. 10 challenge that part of FOF No.-3- that states "the flushing and arrival of predator fishes will adversely affect the nursery habitat now enjoyed by the fish community currently within the LSB." (emphasis added) Sarasota County and MPS contend that this finding is unsupported by any competent substantial evidence in the record.
I disagree. Robert L. Stetler, Environmental Administrator, Wetlands Resource Management for the Department's Southwest District testified as follows:
Q. What impact on fisheries does the present, i.e., closed condition of the Midnight Pass area have?
A. Current conditions in the backwater area of Midnicht Pass as mentioned Before, as quiescent in nature. This influences the fisheries utilization to the competitive advantage of the smaller species and of the early life stages of many of the larger pelagic fish species. The additional cover afforded by seagrass communities and the very shallow water nature of large portions of the site tend to limit successful predation on the smaller specimens. The periphyton communities associated with shallow water areas and seagrass beds also provide large quantities of food to the smaller or younger fish. The conditions now found at Midnight Pass enable it to be classified as a nursery area because they perform the functions of feeding and protecting the early life stages of numerous fish species. Nursery areas like the pass region have been identified as essential to the maintenance of healthy, well balanced fish populations.
Q. Does a quiescent estuarine zone provide any particilar benefit to commercially important fish species?
A. Under the estuarine conditions, water quality also contributes to the success and/or failure of certain fish species. Many of the estuarine dependent fish species have life histories that include spawning in or near the marine environment and the mitigation [sic] of the larval forms into areas of lower salinity, sometimes lower dissolved oxygen and, in the summer months, often very high water temperatures. These harsh conditions are tolerable to a early life stages of several commercially
important fish species and further protects them from predation by adult piscivorous (fish eating) fish that cannot tolerate these conditions. Some of the important commercial species exhibiting this life cycle are the Tarpon, Spotted Seatrout, Redfish, Mangrove snapper, Sheepshead and Mullet.
Q. What, in your opinion, would be the overall impact to fisheries resources from the opening of Midnight Pass?
A. The overall impact of the project to fisheries would be significant. Reactivating an inlet would produce conditions conducive and reintroducing larger, motile, pelagic fishes into the area. increased flushing would likely occur resulting in increased salinities, higher energy conditions from waye and tidal action. The recreational fishery would probably produce more larger fish utilizing the pass as a migratory, spawning and feeding site. However, the direct impact of the project would also result in the loss of significant portions of the nursery habitat previously described.
Q. in your opinion, would opening Midnight Pass be in the public interest from a fisheries standpoint?
A. No.
Q. Why not?
A. The expected physical damages associated with reopening the pass -- increased water depths, destabilization of the substrate by tide and wave energy and destruction of existing shallow water habitat will eliminate or significantly change the habitat characteristics and water guality conditions essential to the early life stages of many fish species. Loss of nursery habitat has been a long-term trend to Tampa and Sarasota Bay due to past dredge and fill activities and increased development. This long-term loss results in a need to classify remaining nursery areas, like Midnight Pass, as critical habitat warranting special protection. (emphasis added)
Stetler PF-11-13. This prefiled testimony was accepted into evidence. TR-836, 839. When read in its entirely it clearly provides competent, substantial evidence to support the above finding of fact. Mr.
Stetler testified that the existing nature of LSB provides a nursery for certain fishes that in the early stages of their life take advantage of areas of lower salinity, sometimes lower dissolved oxygen and, in the
summer months, often very high water temperatures. Such harsh conditions protect them from predation by adult fish that cannot tolerate such conditions. He further testified that reopening Midnight Pass would result in increased flushing, increased salinity, and the loss of significant portions of the above characteristics with a consequent loss of significant portions of the nursery habitat. This testimony is competent, substantial evidence supporting FOF No. 32. Therefore, i may not disturb
this finding of fact. Accordingly, the above noted exceptions are rejected.
Seagrass Impacts
Loss of Seagrass
Sarasota County Exception No. 5 and MPS Exceptions Nos. 10 and 11 take exception to the Hearing Officer's finding that the submerged areas of LSB in the vicinity of the inlet are vegetated with seagrasses (including shoalgrass, turtle grass, manatee grass, and halophila), and that a significant portion of these grasses will be dredged if the proposed project is implemented. FOF No.
33. The Hearing Officer also found that the dredged seagrass areas will no longer serve as a nursery to young fishes. FOF No. 34.
Sarasota County and MPS contend that only 10 acres of seagrasses will be dredged, and that the evidence shows that reopening Midnight Pass will cause more dense growth of seagrasses in those areas not dredged. Sarasota County and MPS also contend that the Hearing Officer erred in concluding that all four of the above noted types of seagrasses would be lost.
The gist of Sarasota County's and MPS's argument is that the loss of ten acres of seagrss is less than 10% of the total seagrass acreage in the project area, and therefore is not significant. Sarasota County and MPS further argue that even if the loss of 10 acres of seagrass was significant, it would only be a temporary loss because the opening of Midnight Pass would result in greater seagrass growth, density, and diversity in those areas not dredged.
Neither Sarasota County nor MPS take exception to the finding that l0 acres of seagrasses will be dredged, and that, due to the depth of the channel to be dredged, seagrasses would not be expected to reseed or colonize in the deep channel cuts. FOF No. 34; Prehearing Stipulation of Fact No. 22.
The record contains competent, substantial evidence that in the vicinity of the project there are 108 acres of seagrasses. Lewis, PF-6 (accepted into evidence TR-425-436). A loss of ten acres of seagrasses would be a loss of more than 9% of the total acreage in the vicinity of the project. A loss of seagrass can have an adverse impact on a fish nursery. Leiby TR-507, 509-510. I reject any suggestion that such a loss is not significant.
MPS and Sarasota County contend that there will be no net loss of seagrass because the loss of the ten acres will be offset by increased growth, density, and diversity of seagrasses in the areas not dredged. in asking me to reject the above noted findings, Sarata County and MPS are in effect asking me to weigh the evidence of the impact of the loss of ten acres against the evidence that increased growth, density, and diversity of the seagrasses elsewhere will soon offset any reduction in nursery value to young fishes. When I rule on exceptions to findings of fact I cannot reweigh the evidence. If the record contains any competent, substantial evidence to support the finding, I must accept it.
Finally, as to issue of the types of seagrasses present, the record contains competent, substantial evidence that all four of the species mentioned in the finding of fact are found in the project area to be dredged. Stetler PF- 6, TR-843-845; Wilber PF-33, TR-908-915; Dryden PF-5-7; Prehearing Stipulation of Fact No. 21. For all of the reasons set forth above, i reject the exceptions of Sarasota County and MPS.
Propeller Dredging of Seagrass
Sarasota County Exception No. 6 and MPS Exception No. 12 take exception to the Hearing Officer's finding that "increase motorboat traffic which is an expected result of the pass reopening, would also limit grasses from re- establishing in shallower areas due to damage caused by propellers." FOF No. 34.
Sarasota County and MPS do not dispute that opening - Midnight Pass will increase motoboat traffic in LSB. Dr. Wilber testified that the "foreseeable increased boat utilization, especially by large boats will increase seagrass bed damage through prop dredging . . . ." Wilber PF-31. There being competent, substantial evidence in the record supporting the above finding, the exceptions of Sarasota County and MPS are denied.
Wading Bird Habitat Impacts
Sarasota County Exception No. 5 takes exception to the Hearing Officer's finding that "the grassy flats will no longer be available to the numerous species of wading birds which frequent the areas since the closure of the pass." FOF No. 33. Ms. Dryden testified that wading birds now use the shallow tidal flats and mud flats which are proposed to be removed. Dryden PF-4-8, 10-11. Mr.
G. Jeffery Churchill testified that, as a result of the project, approximately 9 acres of wading bird feeding habitat would be lost. Churchill PF-16-17, TR- 485-487. The record contains competent, substantial evidence supporting the above finding. Therefore, Sarasota County's exception is denied.
Wetlands Impacted
Sarasota County Exception No. 6 and MPS Exceptions Nos. 5 and 12 take exception to the finding that the dredging proposed by the County would eliminate at least 50 acres of wetlands. FOF Nos. 17 and 34. Sarasota County and MPS contend that only 1.1 - 1.3 acres of vegetated wetlands will be lost. This contention appears to be based on the assertion that submerged lands are not "wetlands" within the meaning of Sections 403.91 - .929, Florida Statutes.
I reject Sarasota County's and MPS's narrow construction of the meaning of jurisdictional wetlands. Section 403.912(1) sets forth the powers and duties of the Department in permitting activities in wetlands, including activities "in waters to their landward extent . . ." (emphasis added). The term "waters" includes "rivers, lakes, streams, springs, impoundments and all other waters or bodies of water, including fresh, brackish, saline, tidal, surface, or underground waters." Section 403.031(12), Florida Statutes. the term "wetlands" therefore is inclusive of surface bodies of waters up to and including the limit of the Department's jurisdiction as established by Section 403.817, Florida Statutes and Rule 17-301, F.A.C.
Dr. Wilber testified that the project would dredge 43.8 acres for the two access channels, 3.6 acres for the sediment basin, and 7.5 acres of jurisdictional wetlands for the inlet channel. Wilber PF-5-6. Dr. Wilber further testified that habitat within the proposed channels consisted of
valuable biological communities of a natural character that would be severely disrupted or eliminated if the project were permitted. Wilber PF-9. The record contains competent, substantial evidence to support the above finding. The exceptions of Sarasota County and MPS are rejected.
Water Quality Improvement
Sarasota County Exception No. 7 and MPS Exception No. 14 take exception to the Hearing Officer's finding that "the water quality within LSB will not be significantly improved as a result of the reopening of the inlet. "FOF No. 38. it is contended that this finding is immaterial and irrelevant. These exceptions also challenge as irrelevant the Hearing Officer's finding that "it is impossible to conclude that marine environments serve a more useful purpose than estuarine systems." FOF No. 38.
I agree that it is not required that the proposed project improve the water quality in LSB in order to be permittable. Permitting of a dredge and fill project in an Outstanding Florida Water requires that the applicant show that the project is clearly in the public interest, and that reasonable assurance has been provided that the project will not cause or contribute to violations of water quality standards, including a showing that the existing ambient water quality within the OFW will not be lowered as a result of the proposed activity. Section 403.918(1),(2), Florida Statutes; Rules 17-4.242(2) (a), 17-302.300,
F.A.C. The applicant must also show that secondary impacts of the project, and cumulative impacts of reasonably foreseeable similar projects in the same geographical location will not result in violations of water quality standards, and will not result in the project being not clearly in the public interest. Conservancy, Inc. v. A. Vernon Allen Builder, Inc., No. 90-520 (Fla. 1st DCA, March 29, 1991); Caloosa Property Owners' Ass'n v. Department of Environmental Regulation, 462 So.2d 523 (Fla. 1st DCA 1985); Section 403.919, Florida Statutes. The analysis of secondary and cumulative impacts is not a third test; rather, it is 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 that the project meets the applicable public interest test. Conservancy, Inc., supra; Peebles v. Department of Environmental Regulation, 12 FALR 1961 (DER, April 11, 1990); Concerned Citizens League of America v. Department of Environmental Regulation, 11 FALR 4237, 4246 (DER, March 29, 1989). if the applicant is unable to satisfy the applicable public interest test, the applicant may propose or accept measures to mitigate the adverse effects caused by the project. Section 403.918(2)(b), Florida Statutes. 4/
On the other hand, throughout these proceedings Sarasota County has attemptd to justify the project and show that it is clearly in the public interest by asserting the project will improve water quality in LSB. For example, at page 7 of Sarasota County's Proposed Recommended Order it states:
Sarasota County has convincingly demonstrated that it meets the statutory criteria for approval of this project in this Outstanding Florida Water. The project will not degrade ambient water quality, and it will cause an improvement in water guality, not only in the immediate vicinity of the Pass but throughout Little Sarasota Bay. This
improved water guality will in turn reap substantial benefits to the degraded marine habitat, the flora and fauna, commercial and recreational fishing and the public's general enjoyment and ability to use Little Sarasota Bay. (emphasis added)
Similarly, Sarasota County stated in its opening argument at the hearing that:
TR-14.
We think that there has been a decline in water quality and it will continue to decline and it will continue to get worse. By reopening the pass, we think we can stop that decline. We think that there will be such considerable improvements to the bay to be clearly in the public interest.
The Hearing Officer's finding is clearly relevant to Sarasota County's assertion that the claimed improvement in water quality will make or help make the project to be clearly in the public interest. Similarly, since the reopening of the pass will cause the reversion of LSB from an estuarine to a marine ecosystem, the Hearing Officer's finding on the failure to show that a marine ecosystem has a more useful environmental purpose is also, at least arguably, relevant to the public interest test. 5/
The record contains competent, substantial evidence which supports this finding. Nearhoof PF-8-12, TR-891-895; Wilber PF-17-18, TR-920-921. There being competent, substantial evidence to support the finding, I shall not reject it. The exceptions are there denied.
Public Interest Balancing Test
Sarasota County Exceptions Nos. 8 and 12, and MPS Exceptions Nos. 15 and 17, take exception to the Hearing Officer's finding that "the beneficial changes expected to result from the reopening of the pass do not offset the adverse affects reasonably expected to be caused by the dredging."
FOF No. 39. Exception is also taken to FOF No. 43, which states that it was not established that the project is clearly in the public interest. The gist of these exceptions is that the balancing test is a conclusion of law rather than a finding of fact. Even if that were so, the error in mislabeling would be harmless. Even though I agree that the ultimate determination of the public interest balancing test is a conclusion of law, I do not agree that predicate findings of ultimate facts are not appropriate. Florida Audubon Society v. Cullen, ER FALR 91:018 (DER, Sept. 27, 1990).
The Hearing Officer's FOF Nos. 34 and 43 are predicate findings of ultimate facts sufficiently supported in other findings of fact for each of the seven criteria in the public interest balancing test of Section 403.918(2)(a), Florida Statutes. See for example:
Department's Response To Request For Admission No. 17, and R.O. at 21 and 23, accepting MPS's proposed finding of fact- No. 74, and Sarasota County's proposed finding of fact No. 50 (project will not adversely affect public health, safety or welfare);
(b) FOF Nos. 17, 22, 24-26, 29, and 32-35 (regarding conservation of fish and wildlife, etc.);
FOF No. 36 and R.O. at 23, accepting MPS's proposed finding of fact Nos. 134 and 135 (regarding navigation, flow of water, erosion or shoaling);
FOF Nos. 32 and 33 (regarding fishing recreational values or marine productivity);
FOF No. 21, 29 and 37 (regarding temporary or permanent nature of project);
FOF No. 28 (regarding historical and archaeological rsources); and
FOF Nos. 30 and 38 (regarding current condition and relative value of functions being performed by areas affected by project).
The exceptions are therefore rejected.
Miscellaneous Exceptions
Sarasota County Exception No. 9
Sarasota County Exception No. 9 contends that there is
no competent, substantial evidence for the finding that the Department has not permitted the destruction of a habitat of this size without requiring extensive mitigation. FOF No. 40. Mr. Randall L. Armstrong, then Director of the Division of Water Management of the Florida Department of Environmental Regulation, testified that he had worked at the Department since 1972, and that "[i]n my experience with the Department in issuing permits under those statutes (Sections 403.918-.919] the Department has never
permitted the destruction of such a large area of viable habitat without requiring extensive mitigation." Armstrong PF-9, TR-1017. Sarasota County's reliance on the testimony of Mr. Lewis about lack of mitigation in a Key Biscayne project is misplaced since that project occurred before the enactment of the Henderson Wetlands Act in 1984. Lewis TR at 482. in any event, FOF No.
40 is supported in the record by competent, substantial evidence. The exception is denied.
Sarasota County Exception No. 11 and MPS Exception No. 16
Sarasota County Exception No. 11 and MPS Exception No. 16 complain
about FOF No. 42, yet do not dispute its correctness. The finding is a irrefutable finding that no mitigation is proposed for 10 acres of seagrasses which will be dredged. The exceptions are merely an assertion that mitigation is not necessary for the loss of seagrasses because additional seagrass will grow elsewhere. This contention was addressed above under the heading of Seagrass impacts. Furthermore, the Department has the ultimate authority to determine whether mitigation is required and, if so, whether the proposed mitigation is adequate. 1800 Atlantic Developers
v. Department of Environmental Regulation, 522 So.2d. 946 (Fla. 1st DCA 1989). The exceptions are rejected.
Sarasota County Exception No. 3
Sarasota County's Exception No. 3 claims to take exception to FOF No. 29 but does not dispute any of the facts stated therein. The exception is rejected.
MPS Exception No. 1
This exception quibbles over an immaterial issue of semantics in FOF No. 2, i.e., whether the project is to "dredge an inlet" or to "restore" the past inlet. The exception is rejected.
MPS Exception No.2
MPS takes exception to FOF No. 4 which states that LSB was designated an Outstanding Florida Water. The gist of MPS's exception is that the Environmental Regulation Commission excluded Midnight Pass when LSB was designated as an OFW. Since "Midnight Pass" no longer existed as a body of water when LSB was designated an OFW on April 29, 1986, the exception is rejected as immaterial and irrelevant.
MPS Exceptions No. 3 and 13
MPS takes exception to the Hearing Officer's finding in FOF No. 7 that prior to the closing of Midnight Pass the "beach along the northern stretch of Casey Key eroded badly." MPS also excepts to the finding that without beach renourishment the restoration will cause "harmful erosion" along Casey Key. FOF No. 37. MPS does not dispute the erosion; rather, MPS
complains about the choice of words describing the degree of erosion. The choice of words is not material to the underlying validity of the finding. The exceptions are without merit and are rejected as immaterial.
MPS Exception No. 9
MPS takes exception to FOF No. 30, contending that there is no support in the record for a finding that, as a result of the evolution of LSB from a marine to an estuarine system, LSB has a longer freshwater residence time. MPS is misreading FOF No. 30. It is clear that FOF No. 30, when properly read, states that as a result of the closure of the pass LSB has evolved from a marine to an estuarine system, and that this evolution is
a consequence of the longer freshwater residence time which was caused by the closing of the inlet. This is supported in the record by competent, substantial evidence. Echernacht TR-707.
MPS also takes exception to the finding that levels of dissolved oxygen and salinity within LSB are fairly typical for a healthy estuarine system.
FOF No. 30. The record contains competent, substantial evidence to support this finding. Wilber PF-32. The exceptions are rejected.
Requests For Additional Findings of Fact
Sarasota -County Exceptions Nos. 3, 10, and 13 through 16, and MPS Exceptions Nos. 4 and 18 are in essence asking me to make additional findings of fact, or to accept proposed findings of fact which were rejected by the Hearing Officer. I may not lawfully make an independent determination of a disputed fact. Cohn v. Department of Professional Regulation, 477 So.2d 1039, 1047 (Fla. 3rd DCA 1985). Accord, Miller v. State,
Department of Environmental Regulation, 504 So.2d 1325, 1327 (Fla. 1st DCA 1987). See also Manasota 88, Inc. v. Tremor, 545 So.2d 439 (Fla. 2d DCA 1989); Inverness Convalescent Center v. Department of Health and Rehabilitative Services, 512 So.2d 1011 (Fla. 1st DCA 1987); Friends of Children v. Department of Health and Rehabilitative Services, 504 So.2d 1345 (Fla. 1st DCA 1987).
As to Sarasota County Exception No. 14, which requests a finding of fact that the project will not adversely affect the pubic health, safety and welfare, I note that the Hearing Officer accepted this finding of fact which was proposed in both paragraph 74 of MPS's proposed recommended order and in paragraph 50 of Sarasota .County's proposed recommended order. See R.O. at 21 and 23. Therefore, I consider the requested finding of fact to have already been made by the Hearing Officer. No additional finding is required of me.
Sarasota County Exception No. 15 asks me to make specific additional findings of fact in relation to effects of the project on marine productivity. Sarasota County orrectly points out that a finding regarding whether the project will adversely affect marine productivity is needed to conduct the public interest balancing test of Section 403.918(2), Florida Statutes. However, I note that the Hearing Officer's FOF Nos. 32 and 33 are sufficient predicate findings for her to consider and weigh this criteria in the balancing test.
Furthermore, the Hearing Officer has considered and ruled on Sarasota County's proposed findings related to marine productivity as set forth in Sarasota County's proposed recommended order paras. 105-108
and 110 (accepted) and para. 111 (rejected as vague). See R.O. at 22. Sarasota County Exception No. 15 is essentially a reiteration of proposed findings of fact which had been asserted before the Hearing Officer. Where the Hearing Officer clearly and specifically addressed and ruled on the proposed finding in the recommended order, I am not required to provide further reasons for my ruling. Britt v. Dept. of Professional Regulation, 492 So.2d 697 (Fla. 1st DCA 1986), overruled on other grounds sub nom., Dept. of
Professional Regulation v. Bernal, 531 So.2d 967 (Fla. 1988). I concur with and adopt the Hearing Officer's rulings as being based on competent, substantial evidence, and therefore reject the exception.
Sarasota County Exception No. 16 asks me to make specific findings with regard to cumulative impacts. The matter ofwhether the proposed project will have any significant adverse secondary or cumulative impacts was a disputed issue at the hearing. See Prehearing Stipulation at 24, Stipulated Disputed issue VI(A)9.
Section 403. 919, Florida Statutes, requires consideration of the cumulative impacts of the project in conjunction with other existing or future projects where there is a "reasonable likelihood" of similar project applications in the same geographic location in the future. Caloosa Property Owners Ass'n v. Department of Environmental Regulation, 462 So.2d 523 (Fla. 1st DCA 1985). Reasonable expectation of future projects is the polestar of cumulative impact analysis. Chipola Basin Protective Group v.
Department of Environmental Regulation, 11 F.A.L.R. 467, 477 (D.E.R. December 29, 1988).
Testimony at the hearing showed that the Department conducted an evaluation of the project for cumulative impacts and was unable to identify any such impacts. Wilber PF-30, TR-949-950; Armstrong TR-1021-1022. A finding
that the Department conducted a cumulative impact analysis and concluded that it was unable to identify any cumulative impact was proposed by Sarasota County in its Proposed Recommended Order, paras. 118 and 119. - These findings were accepted by the Hearing Officer (R.O. at 22). Therefore, the requested findings of fact have already been made by the Hearing Officer, and no additional finding is required of me. The exception is therefore rejected.
MPS Exception No. 18 asks me to adopt numerous proposed findings of fact which the Hearing Officer expressly rejected. The Hearing Officer expressly ruled on each of these proposed findings of fact. (Recommended
Order at 23-24) Where exceptions merely reiterate proposed findings of fact which had been asserted before the Hearing Officer, and where the Hearing Officer clearly and specifically addressed each in the recommended order, I am not required to provide any further explicit reasons for my ruling. Britt v. Dept. of Professional Regulation, supra. I concur with and adopt the Hearing Officer's rulings on these proposed findings of fact. I therefore reject the above exceptions.
RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW
Public Interest Test
Sarasota County's Exception To Conclusion of Law No. 2, and MPS Exception No. 20 take exception to the Hearing
Officer's conclusion of law that "the County has failed to establish that the proposed project is clearly in the public interest." Conclusion of Law No. 6, R.O. at 15-16.
As I noted in my earlier discussion on findings of fact, in order to obtain a permit to dredge and fill in an Outstanding Florida Water, the applicant must show, among other things, that the project is clearly in the public interest. Section 403.918(2), Florida Statutes. Failure of the applicant to make that showing makes the project not permittable.
In order to determine whether the project is clearly in the public interest, the Department must consider and balance the following seven factors set forth in Section 403.918(2)(a):
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.
In order to consider and balance these factors it is necessary, of course, to make sufficient findings of fact as to each factor. As I discussed above, the Hearing Officer had accepted or expressly made findings of fact relevant to each of the above factors. in Conclusion of Law No. 6, she considered and balanced those factors in reaching her determination that it was not shown that the project is clearly in the public interest.
I am, of course, not bound by the Hearing Officer's conclusions of law. I am free to substitute my own legal conclusions for those of the Hearing Officer, so long as competent, substantial evidence supports my legal conclusions. Harloff v. City of Sarasota, 16 FLW D458 (Fla. 2d
DCA, Feb. 20, 1991); Hunter v. Dept. of Professional Regulation, 458 So.2d 842 (Fla. 2d DCA 1984); MacPherson v. School Board of Monroe County, 505 So.2d 682 (Fla. 3d DCA 1987); Section 120.57(1) (b)lO., Florida Statutes.
I have considered and balanced each of the seven criteria set forth in Section 403.918(2) (a) in the light of the findings of fact discussed above. I concur in the Hearing Officer's conclusion that it has not been demonstrated that the project is clearly in the public interest.
In reaching my conclusion I am aware of the holding in 1800 Atlantic Developers v. Department of Environmental Regulation, 552 So.2d 946 (Fla. 1st DCA 1989) that no net public benefit need be shown. I conclude that Findings of Fact Nos. 17, 22, 24-26, 29 and 32-35 on balance establish that the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Findings of Fact 32 and 33 on balance show that the project will adversely affect the fishing or recreational values or marine productivity in LSB. Findings 30 and 38 on balance sfrthat the current conditiofr of LSB makes it a valuable estuarine ecosystem which will be lost if the project is permitted. Finding of Fact 36 and MPS proposed findings of fact Nos. 134 and 135, which were accepted by the Hearing Officer, on balance show a net benefit to navigation. And, the Hearing Officer's acceptance of Sarasota County's proposed finding of fact No. 50, and MPS's proposed finding of fact No. 74, allow me to conclude that the project will not adversely affect the public health, welfare or safety. I note that there is abundant proof that the project is permanent in nature and that there will be no adverse affect on historical or archaeological resources.
When I consider and balance all of these factors and their relevant facts,
I conclude that the adverse impacts
outweigh any benefits, and therefore donclude that there has been no showing that the project is clearly in the public interest.
Since I have determined that it has not been shown that the project is clearly in the public interest, I must also consider any mitigation which Sarasota County has proposed. Sarasota County and MPS contend that no mitigation is needed for the loss of ten acres of seagrasses because reopening the pass will result in recolonization of new areas of seagrass, greater density of growth in existing areas, and greater diversity of seagrass
species. Even when I assume that Sarasota County's and MPS cotentions are true, I still conclude that the adverse effects of the loss of ten acres of seagrass will not be mitigated by the proposed project. 6/ Accordingly, I reject the exceptions.
Water Quality Improvement
Sarasota County Exception To Conclusion of Law No. 1, and MPS Exception No. 19, challenge the Hearing Officer's Conclusion of Law No. 4.
Specifically, the exceptions challenge the statement that "[t]he County has not established, however, that the reopening of the inlet will somehow improve water quality and justify the proposed dredging." Conclusion of Law No. 1, R.O. at 14. To the extent that the Hearing Officer may have thought that a showing of improvement in water quality was a requirement for obtaining a permit, she erred. However, for the reasons set forth in my previous discussion of water quality in relation to findings of fact, Sarasota County and MPS had made improvement in water quality an issue in determining whether the project was clearly in the public interest. Rather than erroneously imposing a requirement of improvement of water quality, it appears that the Hearing Officer was merely making a predicite observation prior to conducting the public interest balancing test. Regardless of how one interprets the above matter, it is clear that the issue does not affect the outcome of this case because both the Hearing Officer and I have concluded
that there has been no showing that the project is clearly in the public interest. I therefore reject the exception on the basis that the conclusion of law is not erroneous, or if error, then it is harmless error.
Having ruled on all of the exceptions it is ORDERED:
Except as is otherwise stated in this Final Order, the Hearing Officer's Recommended Order is adopted and incorporated herein by reference.
Sarasota County's Permit Application No. 581473069 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 4 day of April, 1991, in Tallahassee, Florida.
State of Florida Department of Environmental Regulation
CAROL BROWNER
Secretary
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL. 32399-2400
ENDNOTES
1/ Pursuant to Rule 103.200(1), F.A.C., the deadline for filing exceptions with the Department's Office of General Counsel was March 6, 1991. MPS mailed a copy of its exceptions which was received and filed on March 7, 1991. However, a copy transmitted electronically by facsimile was filed in a timely manner.
2/ This rule is now found at Section 17-312.O9O(1)(a), F.A.C. 3/ The application was not completed until February 3, 1989.
4/ An improvement in water quality is relevant if the applicant is unable to meet water quality standards because existing ambient water quality does not meet standards. in such cases, the Department shall consider mitigation measures proposed by or acceptable to the applicant that cause a net improvement of the water quality in the receiving body of water for those parameters which do not meet standards. Section 403.918(2)(b), Florida Statutes; Sheridan v. Deep Lagoon Marina, 11 FALR 4710 (DER, Aug. 24, 1989).
5/ I categorically reject MPS's contention that "provided that marine environments are as useful as "estuarine systems," the public interest test will be satisfied if the project creates a marine system." (emphasis in original). The public interest test is much broader than a mere consideration of utility. Marine and estuarine ecosystems have their own unique environmental functions which are not interchangeable in the market place of utility.
6. I have also considered Sarasota County's proposed mitigation for the loss of the 1.3 acres of mangroves. In view of my above determination, the adequacy of that mitigation is not dispositive of the outcome of this proceeding.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the following persons by United States Mail, on this 5 day of April, 1991.
The Honorable Joyous D. Parrish Richard T. Donelan, Jr. Hearing Officer Assistant General Counsel Division of Administrative Dept. of Environmental
Hearings Regulation
The Desoto Building Twin Towers Office Bldg.
1230 Apalachee Parkway 2600 Blair Stone Road Tallahassee, FL 32399-1550 Tallahassee, FL 32399-2400
Clerk David M. Levin
Division of Administrative Icard, Merrill, Cullis, Hearings Timm, Furen and Ginsburg
The Desoto Building Post Office Drawer 4195
1230 Apalachee Parkway Sarasota, FL 34237
Tallahassee- FL 32399-1550
Joseph W. Landers, Jr. Thomas W. Reese
Richard A. Lotspeich 2951 61st Avenue South
Landers & Parsons, P.A. St. Petersburg, FL 33712 Post Office Box 271
Tallahassee, FL 32302
Richard E. Nelson and Richard L. Smith
Nelson, Hesse, Cyril, Smith Widman, Herb, Causey & Dooley Post Office Box 2524 Sarasota, FL 34237
STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION
ROBERT G. GOUGH
Assistant General Counsel
| Issue Date | Proceedings |
|---|---|
| Feb. 19, 1991 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 04, 1991 | Agency Final Order | |
| Feb. 19, 1991 | Recommended Order | County's proposed dredging of pass not clearly in public interest request to dredge inlet opening not permittable. |
