STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FRANK HULSE, IV, )
)
Petitioner, )
)
vs. ) CASE NO. 92-0525
)
DEPARTMENT OF ENVIRONMENTAL )
PROTECTION, )
)
Respondent. )
) JAMES PAUL, )
)
Petitioner, )
)
vs. ) CASE NO. 92-0526
)
DEPARTMENT OF ENVIRONMENTAL )
PROTECTION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled cases on September 14, 1994, in Melbourne, Florida.
APPEARANCES
For Petitioners: Richard A. Lotspeich, Esquire
Landers & Parsons
310 West College Avenue Post Office Box 271 Tallahassee, Florida 32302
For Respondent: John L. Chaves, Esquire
Donna LaPlante, Esquire
Department of Environmental Protection Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32399-2400
STATEMENT OF THE ISSUES
As stipulated by the parties (prehearing stipulation filed 9/8/93), this proceeding involves a challenge by Petitioners, James Paul and Frank Hulse, IV, to the Respondent agency's proposed denial of applications to dredge and fill jurisdictional wetlands adjacent to the Banana River in Brevard County in order
to construct two house pads with driveways. The issues are whether the applications should be granted and if so, under what conditions.
PRELIMINARY STATEMENT
After the agency issued its notices of permit denial on November 14, 1991, Petitioners filed timely requests for an administrative hearing. The cases were forwarded to the Division of Administrative Hearings and were consolidated for consideration in a single proceeding.
The cases were set for hearing, but were later abated at the request of the parties. When Petitioners requested the hearing be rescheduled, the cases were taken out of abeyance and proceeded as described above.
At the final hearing, Petitioners introduced Exhibits #1-37, which, except for Exhibits #27, 29, and 31, were admitted into evidence. Petitioners offered the testimony of Gary Exner, who was accepted as an expert in wetlands biology, wetlands jurisdiction as applied to the jurisdiction of the Department of Environmental Protection, and threatened and endangered species; Jeffrey B. Davis, an employee of the St. Johns River Water Management District; Scott Taylor, an employee of the Brevard Mosquito Control District (BMCD); and Barbara Bess, an employee of the department's Central District office in Orlando.
Respondent, department, introduced Exhibits #2, 3 and 8, which were admitted into evidence; and offered the testimony of Scott Taylor, who was accepted as an expert in mosquito control, mosquito control impoundments and biology; Barbara Bess, who was accepted as an expert in biological and environmental impacts, dredge and fill projects and jurisdictional determinations; Tamy Weingarden, who was accepted as an expert in biology, the impacts of dredging and filling projects on wetlands, and determinations of jurisdictional boundaries; and Robert Day, who was accepted as an expert in biology and the flora and fauna of the Indian River Lagoon system, specifically the wetlands adjacent to the Banana River.
The transcript was filed on October 12, 1993, and after a brief extension the parties filed proposed recommended orders on October 29, 1993.
The findings of fact proposed by each party are addressed in the attached Appendix.
FINDINGS OF FACT
The agency affected by this cause is the State of Florida Department of Environmental Protection, (DEP, or department) 2600 Blair Stone Road, Tallahassee, Florida 32399-2400. The department's file numbers for this matter are 05-187334-4 and 05-187329-4. (Stipulation)
Petitioners are James Paul and Frank Hulse, IV. Their addresses are
139 Clearlake Road, Cocoa, Florida 32922 and River Capital, Two Midtown Plaza, 1360 Peachtree Street, Suite 1430, Atlanta, Georgia 30309, respectively. Petitioners own adjoining five acre parcels on Merritt Island, between State Road 3 (Courtenay Parkway) and the Banana River in Brevard County. (Stipulation)
Description of Project Site
The project site is located at the south end of the southern cell of Mosquito Control Impoundment No. 5 that was constructed in 1958 by the Brevard County Mosquito Control District (BMCD). This cell consists of approximately 60 acres. The impoundment is surrounded by a berm.
A ditch (ditch #1) runs in a north-south direction along the west boundary of the impoundment and drains into a canal which runs in an east-west direction along the south boundary of the impoundment. This ditch was excavated to obtain fill to build the berm which is the western dike of the impoundment. The ditch serves as a drainage conveyance for water draining off of the State Road 3. This ditch does not connect into the impoundment. A second ditch runs in a north-south direction inside the impoundment (ditch #2). This ditch dead- ends at the berm that forms the southern boundary of the impoundment and does not flow from the impoundment. Spoil piles line the sides of both of these ditches. A twenty-five-to thirty-foot-wide berm forms the eastern, southern, and northern boundaries of the impoundment and a rim ditch lies inside the impoundment just to the west of the eastern berm.
The project site has been severely impacted by the encroachment of upland, exotic and nuisance vegetation. The area between State Road 3 and ditch #1 is vegetated with slash pines, cabbage palms and wax myrtles. The area between ditch #1 and ditch #2, as well as the area immediately east of ditch #2, is dominated by a canopy of wax myrtle and Brazilian pepper. Between the wax myrtle/Brazilian pepper canopy and the rim ditch is an area vegetated by herbaceous wetland vegetation. The berm along the Banana River is heavily vegetated with noxious Brazilian pepper trees. The project site has also been invaded by cattails, primrose willow and Australian pines - all of which are nuisance species.
Over the western portion of the project site, the top stratum of vegetation is a canopy of wax myrtle trees and Brazilian peppers. Brazilian peppers also line the spoil piles along the sides of ditch #1 and ditch #2.
The Project
On October 3, 1990, Petitioners submitted their applications for wetland resource permits to excavate and fill certain areas on their properties for the purpose of constructing a residence on each parcel.
The original applications, both under the name of Jimmy Paul, proposed similar activities on Tract 1, which is the Hulse property, and Tract 2, which is the Paul property.
After initial preapplication consultation with Don Medellin of the department, Petitioners' agent prepared the first of several permit application proposals. The initial proposed project was to excavate an access channel approximately 1200 feet long by 50 feet wide by 3 feet deep to connect the two properties to the Banana River and to an existing canal. The project included the excavation of a "mitigation" pond overlapping the two properties. The proposed access channel and pond would have involved the excavation of 3.88 acres of wetlands. In addition, it was proposed that 2.23 acres of wetlands would be filled for two house pads and two driveways. Additional proposed mitigation included the removal of the berm which separated the properties from the Banana River.
In response to comments from department staff that this original proposal would likely be denied, a revised project proposal was submitted by Petitioners' agent on December 14, 1990. The revised project eliminated the access channel and the pond but retained the two house pads and driveways. The revised project also eliminated the removal of the berm but provided for the planting of 0.12 acres of mangrove trees along the waterward edge of the berm. The revised project reduced the direct wetland impacts to 1.16 acres of filling.
After further review and comment by department staff suggesting that the house pads be moved further to the west to be located along the eastern side of ditch #2, Petitioners again revised the project on May 17, 1991 to relocate the two house pads. The more westerly location allowed for a shorter driveway. However, the two house pads were slightly enlarged so that the total area of filling remained at 1.16 acres. At this time Application No. 05-187329-4 was transferred to Frank Hulse as the owner of Tract 1.
Upon submittal of this revision, Petitioners' agent was advised by department staff that further reduction and minimization of impacts would be required. Staff suggested that the house pads be relocated between the first and second ditches near State Road 3. This suggestion was unacceptable to Petitioners due to the increased distance from the water and the proximity to State Road 3, with the higher noise levels at that location.
On October 22, 1991 another revision to the applications was made to construct the houses on pilings and with filling only for the two driveways and parking areas. The total area of fill for both properties was thereby reduced to only two 500 ft. long by 20 ft. wide driveways and two parking fill pads 75 ft. long by 20 ft. wide. The total area of wetlands to be filled was therefore reduced to only approximately 0.28 acres.
On November 16, 1991, Petitioners received the department's Notices of Permit Denial, advising them that the applications would be denied.
In a further effort to design a project that would be acceptable, on June 26, 1992, Petitioners proposed a final revision. This proposal eliminates one of the driveways by utilizing the existing berm along the south side of Tract 2 and relocates the two house pads so that they would overlap the existing ditch and berm, thereby minimizing the area of wetlands fill. The total area of wetlands to be filled is 0.57 acres. The mitigation proposed for these impacts is to remove the remaining berm, back-fill the easternmost ditch, and then plant this area of 0.8 acres with appropriate herbaceous wetland vegetation. Petitioners also propose to remove all nuisance and exotic vegetation from the project site. This proposal was modeled after projects recently permitted by the department in an area immediately to the south of the project site. It is this version of the project that is the subject of this proceeding. (Stipulation)
Jurisdiction
Under department policy, the department has wetlands jurisdiction within an isolated mosquito impoundment if the wetlands within the impoundment were jurisdictional prior to the construction of the berm. There is competent substantial evidence that the area within the impoundment was, in fact, a jurisdictional wetland prior to the construction of the berm.
The project site was enclosed within BMCD's impoundment in 1958. Based on the character of the site and historic aerial photographs and records
of the BMCD, credible competent witnesses, Barbara Bess and Scott Taylor, opined that the pre-1958 area was a viable grassy saltmarsh wetland. Although the ten acre combined parcels include substantial upland, transitional and nuisance species, the site, particularly the easterly portion, still functions as a wetland.
Water Quality
The waters in the project vicinity are Class III waters. While the waters of the Banana River at the project area are part of the Banana River Aquatic Preserve and, therefore, an Outstanding Florida Water, no work is proposed in the Banana River. (Stipulation)
The project will not cause any violations of state water quality standards. (Stipulation)
Public Interest
Public Health, Safety, and Welfare and Property of Others
There is no issue or contention that the project will adversely affect the property of others.
Mosquitos, particularly fresh water species of mosquitos, are a threat to human health. The mosquito impoundments were created in the 1950's and 1960's to aid in control of mosquito populations. The berms were built, and free-flowing wells were dug to insure that standing water would flood the eggs and create a habitat for mosquito larvae-eating fishes.
Although no witness actually found a well on the Petitioners' parcel, historic records indicate the presence of at least one free flowing well at the northern end, and an odor associated with such artesian wells has been detected in the area.
The St. Johns River Water Management District has a goal of plugging the wells to protect against loss of the ground water resource and to prevent saltwater intrusion and interaquifer contamination.
If the well on this parcel is found and plugged, it could contribute to the destruction of the marsh that now exists, as that source of inundation would be eliminated and the impoundment would have only rainfall to rely upon. However, although the impoundment is not actively managed now by the BMCD, it plans to restore the area to a salt marsh through a system of pumps and culverts connecting to the Banana River, a source of salt water. At least one property owner to the north of Petitioners' property has entered into an agreement to retain the impounded state and to allow seasonal flooding for mosquito control purposes in return for a preferential tax assessment.
Another mosquito control technique is aerial spraying to kill the larva and the adult flying mosquitos. Effective larvicidal spraying is frustrated by the existence of residences as the low-flying planes present a hazard and irritating noise levels.
The Petitioners had proposed the scraping of a portion of the berm and establishing marsh grass to provide a nursery habitat in mitigation for the impact of filling the easternmost ditch. The BMCD objects to any removal of the berm, as it would threaten the integrity of the entire impoundment and destroy
its function. Petitioners are willing to leave the berm intact, and their consultant has suggested the alternative of providing a system of culverting and pumping that would enable the impoundment to receive more salt water, thereby enhancing the establishment of a salt marsh and improving fish and wildlife functioning for the natural control of mosquitos. (transcript, p. 70)
With the proposed modification to the mitigation plan, the project will not adversely affect public health, safety or welfare with regard to the ability of the BMCD to control mosquito populations in the area. No other public health, safety or welfare issues have been raised.
Conservation of Fish and Wildlife
The project site provides limited habitat for small minnow-like fish and serves as a foraging area for a variety of wading birds. Although only .57 out of 10 acres will be filled, the activity associated with the proposed use of the property will affect more than the limited footprint of the house pads and driveways. However, the surrounding area will still be used for foraging for the bird species, the small mammals, reptiles, fish and invertebrates; and the mitigation discussed below will offset the anticipated negative impacts.
Brazilian pepper pervades the site now and will continue to destroy other vegetation if allowed to remain. Brazilian pepper trees are allotrophic, meaning that they release toxins that prevent the growth of other vegetation beneath their canopy. The increasing proliferation of wax myrtles and Australian pines, if not arrested, will reduce or eliminate the wildlife functions currently being performed in the wetlands.
Navigation, Flow, Erosion and Shoaling
As stipulated, the project will not adversely affect navigation or cause harmful erosions or shoaling. The flow of water will not be adversely affected, but rather will be enhanced by the proposed mitigation, as modified here.
Fishing, Recreation and Marine Productivity
Marine productivity will likewise be enhanced by the introduction of water from the Banana River, as proposed. The project is not now being used for fishing or recreational purposes.
The nature of the project and its effect on Historical and Archeological Resources
The parties have stipulated that the project is of a permanent nature and will not affect any significant historical or archeological resources.
Condition and Value of Functions of the Wetlands
Wetlands in general perform a series of functions, including groundwater discharge, groundwater recharge, flood storage, sediment stabilization, toxicant retention, nutrient assimilation, export of organic matter, and providing wildlife habitat and recreation.
The wetlands at the project site in their current impounded state perform very little of these functions. They provide no function as to groundwater discharge or recharge. Because of their isolated nature, they
provide no function for flood control, sediment stabilization, toxicant retention, nutrient assimilation or organic export. As noted above, the area does provide limited function as wildlife habitat and it serves as a mosquito impoundment.
Besides rainwater falling directly on the impoundment, the only source of water to the wetlands within the impoundment is the free-flowing artesian well. If this well is located and plugged, the wetlands will likely dry out and the wetland vegetation will be replaced with upland species resulting in the further loss of the limited habitat provided by this area.
The mitigation proposed and as modified here will aid flushing, and will restore some functions performed prior to impoundment without threatening the mosquito control function of the impoundment.
Cumulative Impacts
There are no projects existing or for which department permits or jurisdictional determinations are presently being sought within the impoundment, and there are no projects which are under review, approved, or vested pursuant to section 380.06, F.S. which are within the impoundment. (Stipulation)
There are five other property owners who own property within the impoundment. Of those five, one has entered into an agreement with the Brevard County Board of County Commissioners to not build on or alter his property for a period of ten years. If each of the other four owners were to be allowed to construct a project similar to those being proposed by Petitioners, there would be only 1.71 acres of filling (0.285 acres per parcel x 4 parcels + 0.57 acres at the project site) in the entire 60 acre impoundment. This would have an insignificant impact on the fish and wildlife habitat value of the wetlands in the impoundment, and that impact would, by necessity, be mitigated or the project would not be approved.
The wetlands in the rest of the impoundment are of a higher quality than those at the project site, just as, according to department staff, the Petitioners' wetlands are a higher quality than those to the south on the parcel where permits were issued to Messrs. Savell, Burgunder, Skowron, Anderson, and Stewart for projects similar to that proposed here.
There is only conjecture that the issuance of the subject permits to Petitioners will result in the likelihood of the issuance of future permits to the other property owners in the impoundment, or to property owners in other impoundments. Petitioners' project, when considered with other projects which may be reasonably expected to be located within this impoundment or other impoundments, will not result in adverse cumulative impacts to the wetlands.
Mitigation
As stipulated by the parties, Petitioners proposed, as mitigation for filling .57 acres, to remove a portion of the berm that is not being used by the driveway and house pads, to backfill the easternmost ditch and plant .8 acres with appropriate herbaceous wetland vegetation, and to remove all nuisance and exotic vegetation from the project site.
At hearing, Petitioners' consultant agreed to modify the mitigation plan to address the concerns of the BMCD as to the project's negative impact on mosquito control techniques. Those modifications include leaving the berm
intact. The consultant also suggested that culverting and pumping over the berm would introduce salt water into the impoundment and would improve the functioning of the wetlands. This suggestion is an appropriate substitute for removal of the berm and would appropriately mitigate negative impacts to the public health, safety and welfare by providing a means to control mosquito breeding in lieu of the larvacidal aerial sprays. The salt water inundation would reduce fresh water mosquito larvae and would provide a habitat for small larvae-eating fish.
The department has suggested that Petitioners should move the houses to the uplands on the western portion of the property or construct the houses between the two ditches to the west (ditch #1 and ditch #2). These suggestions are neither practical nor necessary. Noise from State Road 3 and the desirability of waterfront living motivated Petitioners to plan the houses closer to the Banana River. The wetland enhancement described above amply mitigates the impacts of the filling Petitioners now propose.
Past Agency Practice
From 1987 to 1991, the department issued five permits for the construction of seven house pads and driveways within a mosquito impoundment immediately south of the project area. After a period of negotiations and several permit denials, the department eventually permitted the placement of house pads along the Banana River in projects similar to that proposed by Petitioners. The project to the immediate south of Petitioners' site was permitted to include excavation and filling of the owner's entire 4.5 acres. This was in 1987. Later permits for the parcels further south required more extensive mitigation.
The wetlands south of Petitioners' property were much more stressed than those on Petitioners' property. The area was heavily vegetated with cattails, wax myrtle, Australian pines and other like species. There were breaches already in the mosquito impoundment berm, so that impoundment's integrity had already been compromised. Piles of spoil material placed on the sites in some unknown past had contributed to the general trashy appearance of these parcels.
In summary, the department adequately distinguished the permits granted in those five cases from the permits sought here, just as the department will be able to distinguish these permits from the conjectured future applications from property owners in the more valuable (function-wise) wetlands to the north of Petitioners' property.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to section 120.57(1), F.S.
Permit Jurisdiction
The Department has permitting authority over certain dredging and filling activities under Part IV of Chapter 373, F.S. The application was initially filed under the provisions of sections 403.91 et seq., F.S., the Warren S. Henderson Wetlands Protection Act of 1984, which was recently transferred in large part to Part IV of Chapter 373 by Chapter 93-213, Laws of Florida. However, applications which were complete prior to the adoption of new
rules implementing the new sections of Chapter 373 are to be processed under the rules that existed prior to the effective date of these new rules. See section 373.414(14) F.S. (1993). The new rules were not adopted; therefore, the subject applications were processed under the Department's current rules.
The greater weight of evidence established that the area of the project site is within a mosquito control impoundment separated from the nearby waters of the Banana River by a berm. The berm is heavily vegetated with Brazilian pepper, a noxious species, and the berm completely encloses the area of the project site.
Under section 403.817(2), the department's jurisdiction cannot be altered by the activities of a governmental mosquito control program. Gregory
v. Indian River County, 610 So2d 547 (Fla. 1st DCA 1992). Therefore, if the areas within the impoundment were within the "landward extent" of the Banana River prior to the construction of the berm, then the presence of the berm would not alter the department's jurisdiction.
The department proved by the preponderance of evidence that jurisdictional wetlands existed prior to construction of the berm in the 1950's, and thus it retains jurisdiction over these now-isolated wetlands.
The Petitioners have the burden of providing reasonable assurance that the proposed project will not violate department standards and that they are entitled to the permits they seek. Rules 17-4.070(1) and 17-103.130(1)(a), F.A.C.; J.W.C. v. Dept. of Transportation and Dept. of Environmental Regulation, 396 So2d 778 (Fla. 1st DCA 1981).
Water Quality
Pursuant to section 373.414(1), F.S., (formerly section 403.918(1)), a permit cannot be issued unless the applicant provides reasonable assurance that the department's water quality standards will not be violated. The parties have stipulated that the project will not cause any violations of state water quality standards.
Public Interest Test
Section 373.414(1), provides in pertinent part:
As part of an applicant's demonstration that an activity regulated under this part will not be harmful to the water resources or will not be inconsistent with the overall objectives of the district, . . . the department shall require the applicant to provide reasonable assurance . . . that such activity in, on or over surface waters or wetlands . . . is not contrary to the public interest. However, if such an activity significantly degrades or is within an Outstanding Florida Water, as provided by department rule, the applicant must provide reasonable assurance that the project will be clearly in the public interest.
In determining whether an activity . . . is not contrary to the public interest, or is clearly in the public interest, . . . the department shall consider and balance the following criteria:
Whether the activity will adversely affect the
public health, safety, or welfare or the property of others;
Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;
Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project;
Whether the activity will be of a temporary or permanent nature;
Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provision of s. 267.061; and
The current condition and relative value of functions being performed by areas affected by the proposed activity.
Where a project is not to be conducted in an OFW, the applicant must provide reasonable assurance that the project is not contrary to the public interest, balancing the seven criteria in section 373.414(1), F.S. The parties have stipulated that the proposed project is not to be conducted in an Outstanding Florida Water. If the proposed modification to include a culvert and pump system is deemed to alter that stipulation, the project as modified would nonetheless still meet the stricter "in the public interest" test due to the restoration of the salt marsh sought by the BMCD.
Mitigation
Section 373.414(1)(b), F.S., in pertinent part provides:
If the applicant is unable to otherwise meet the criteria set forth in this subsection, . . . the department, in deciding to grant or deny a permit, shall consider measures proposed by or acceptable to the applicant to mitigate adverse effects which may be caused by the regulated activity.
Cumulative Impacts
Section 373.414(8), F.S., requires the department to consider the cumulative impacts of the project in conjunction with other similar projects which may be constructed in wetlands within the same drainage basin. Specifically, section 373.414(8) requires the consideration of:
The activity for which the permit is sought.
Projects which are existing or activities regulated under this part which are under construction or projects for which permits or [jurisdictional] determinations have been sought.
Activities which are under review, approved, or vested pursuant to s. 380.06, or other activities regulated under this part which may reasonably be expected to be located within the surface waters or
wetlands, . . . based upon the comprehensive plans . .
. or applicable land use restrictions and regulations.
The parties stipulated that there are no projects existing or for which department permits or jurisdictional determinations are presently being sought which are located in the impoundment, and that there are no such projects which are under review, approved or vested pursuant to section 380.06, F.S.
There remain two issues with regard to cumulative impacts: (1) whether there are other projects which may reasonably be expected to be located within the impoundment, and if so, (2) whether the impacts of these projects, when considered with the impacts of the proposed project, will be contrary to the public interest. With regard to the first issue, the unrebutted testimony was that the remaining wetlands within the impoundment outside of the project site are of a higher quality than those at the project site. The department's argument that if the proposed projects are permitted, it will be bound to issue permits for other projects in this impoundment and in other impoundments is inconsistent with its grant of permits for the parcels south of Petitioners' property. If a project is proposed in a high quality wetland, the previous issuance of a permit to construct a similar project in a low quality wetland has not been considered as setting a precedent binding the department to issue the permit for the project in the higher quality wetland. Even though there are others who own property in the impoundment, it would be highly speculative to conclude that there would be "other projects which may reasonably be expected to be located within" this impoundment or any other impoundment containing high quality wetlands. To the contrary, it may be unreasonable to expect that the department would grant permits to others to construct projects in higher quality wetlands.
With regard to the second remaining issue on cumulative impacts, even if it is reasonable to expect other similar projects will be constructed in the impoundment, the impacts of such projects together with the impacts of the proposed project could likely be mitigated. One of the other owners has already agreed with Brevard County to forego any construction on his property for a period of ten years. If each of the other four owners in the impoundment is allowed to construct a project similar to that proposed by Petitioners, there would be only 1.71 acres of filling in the entire 60 acre impoundment.
As provided in the findings of fact, above, Petitioners have met their burden of proving entitlement to their permits for the project described in paragraph 6, page 6 of the prehearing stipulation, with this modification: that the remaining berm be left intact, but that a culvert with pump system be installed to enable the impoundment to receive salt water for the establishment of a salt marsh habitat and effective mosquito control. This condition, with the proposed planting of .8 acres and removal of all nuisance and exotic vegetation, will more than adequately mitigate the project's impact to the existing wetlands and to the mosquito control function performed in those wetlands. Specifically, the project, as modified, effectively achieves both the Petitioners' desired use of their property and the felicitous enhancement of the property's valuable environmental functions.
Based on the foregoing, it is, hereby,
RECOMMENDED:
That a final order be entered approving Petitioners' applications as modified above.
DONE AND RECOMMENDED this 18th day of March, 1994, in Tallahassee, Leon County, Florida.
MARY CLARK
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904)488-9675
Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 1994.
APPENDIX TO RECOMMENDED ORDER, CASE NOS. 92-0525 & 92-0526
The following constitute specific rulings on the findings of fact proposed by the parties:
Petitioners' Proposed Findings
1.-10. Adopted in substance in paragraphs 1-10, respectively; however the verbiage in paragraphs 9 & 10 regarding the impacts being limited to the actual acreage being excavated or filled is deleted as misleading.
11.-15. Adopted in substance in paragraphs 11-15, respectively.
Rejected as contrary to the greater weight of evidence.
Rejected as immaterial and unnecessary.
18.-20. Adopted in paragraphs 18-20, respectively.
Adopted in part in paragraphs 24 and 16; otherwise rejected as contrary to the weight of evidence.
Adopted in part in paragraph 26, otherwise rejected as contrary to the weight of evidence, which evidence suggests that leaving the berm will not, alone, resolve the BMCD concerns related to proper mosquito control.
23.-24. Rejected as contrary to the weight of evidence; although the conclusory facts proposed are true, with the modifications suggested for Petitioners' mitigation plan. (See paragraph 27)
25.-28. Adopted in part in paragraphs 28 & 29; otherwise rejected as misleading or contrary to the weight of evidence.
29. Rejected as unnecessary.
30.-31. Adopted in paragraph 30.
32.-33. Adopted in substance in paragraph 31. 34.-35. Adopted in substance in paragraph 32.
36.-37. Adopted in substance in paragraphs 33-34, respectively.
38. Adopted in substance in paragraphs 23 and 24. 39.-40. Adopted in paragraph 37.
41.-44. Adopted in substance in paragraphs 37-40, respectively.
Rejected as contrary to the weight of evidence and the law (as to the requirement for mitigation).
Rejected as unnecessary.
Adopted in part in paragraph 44; otherwise rejected as unsupported by the weight of evidence.
48.-59. Rejected as unnecessary.
Respondent's Proposed Findings
Adopted in expanded form in paragraphs 7-15.
Rejected as unnecessary.
Adopted in substance in paragraphs 17 and 24.
Adopted in substance in paragraphs 25 and 26.
Rejected as unnecessary.
Adopted in paragraph 2.
Adopted in paragraph 1.
Adopted in paragraph 14.
9.-10. Rejected as unnecessary as stated, but addressed in paragraphs 41-
43.
Rejected as contrary to the weight of evidence which suggests,
instead, that the wetlands in issue are not currently connected to the Banana River. This does not, however, defeat the department's jurisdictional claim.
Rejected as unnecessary.
Adopted in paragraph 17.
Adopted in substance in paragraph 22.
Adopted in substance in paragraph 25.
Adopted in substance in paragraph 21.
17.-18. Adopted in substance in paragraphs 25 & 26.
19. Rejected as immaterial, in view of the modification to the mitigation plan.
20.-21. Rejected as cumulative and unnecessary. 22.-23. Adopted in summary in paragraph 28.
Rejected as generally contrary to the weight of evidence. The wetlands are stressed. Whether they will improve or degrade if left in their present state is a matter of conjecture; but the trend is for the exotics to take over.
Adopted in paragraph 28, in summary; but the project, as mitigated, should improve the habitat.
26.-27. Rejected as cumulative.
Rejected as an incomplete statement. As mitigated, the project will improve marine productivity.
Adopted in paragraph 44.
Rejected as contrary to the weight of evidence.
Adopted in paragraph 41.
Rejected as unnecessary.
Rejected as cumulative.
Adopted in paragraph 46.
Adopted in summary in paragraph 45.
COPIES FURNISHED:
Richard A. Lotspeich, Esquire
L. Bartin, Esquire Post Office Box 271
Tallahassee, Florida 32302
John L. Chaves, Esquire Donna LaPlante, Esquire
Department of Environmental Protection Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Kenneth Plante, General Counsel Department of Environmental Protection 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.
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
FRANK HULSE, IV,
Petitioner,
vs. OGC CASE NO. 91-2285
DOAH CASE NO. 92-0525
DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Respondent.
/ JAMES PAUL,
Petitioner,
vs. OGC CASE NO. 91-2286
DOAH CASE NO. 92-0526
DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Respondent.
/
.
FINAL ORDER
On March 18, 1994, the assigned Hearing Officer of the Division of Administrative Hearings (DOAH) submitted a Recommended Order to the Department of Environmental Protection (Department) and the parties in the above-captioned consolidated cases. A copy of the Recommended Order is attached as Exhibit A. On April 4, 1994, the Department filed exceptions to the Recommended Order. On April 14, 1994, Petitioners filed a response to the Department's exceptions.
The matter thereafter came before the Secretary of the Department for final agency action.
BACKGROUND
The site which is the subject of this proceeding consists of two adjacent five-acre tracts located in Brevard County, Florida. The property lies at the south end of the southern cell of the sixty-acre Mosquito Control Impoundment No. 5, constructed in 1958 by the Brevard County Mosquito Control District (BCMD). The impoundment is surrounded by a berm thirty feet wide which separates it from the Banana River.
Tract 1 is owned by Petitioner Frank Hulse and Tract 2 is owned by Petitioner James Paul. The Banana River is situated to the east of the site with State Road 3 directly to the west. Waters found on the site are Class III waters. While waters of the Banana River adjacent to the project site are part of the Banana River Aquatic Preserve and, therefore, an Outstanding Florida Water, no alterations are proposed as part of the Petitioners' application which would be directly within Class I waters of the Banana River.
On October 3, 1990, Petitioner James Paul submitted permit application Nos. 05-187334-4 and 05-187329-4 seeking wetland resource permits authorizing him to excavate and fill areas on both tracts 1 and 2 for the purpose of constructing a residence on each parcel. The initially-proposed project was to excavate an access channel approximately 1200 feet long by 50 feet wide by 3 feet deep to connect the two properties to the Banana River and to an existing canal; the project also was to include the excavation of a pond overlapping the boundary between the two tracts. The proposed access channel and pond would have involved the excavation of 3.88 acres of wetlands. In addition, it was proposed that 2.23 acres of wetlands would be filled for two house pads and two driveways. Offered as mitigation for the impacts of the project was the removal of the berm which separated the properties from the Banana River; and the pond to be created as part of the project.
In response to comments from Department staff that this original proposal would likely be denied, a revised project proposal was submitted by Paul's agent on December 14, 1990. The revised project eliminated the access channel and the pond but retained the two house pads and driveways. The revised project also eliminated the removal of the berm but provided for the planting of 0.12 acres
of mangrove trees along the waterward edge of the berm. The revised project reduced the direct wetland impacts to 1.16 acres of filling.
After further review and comment by Department staff suggesting that the house pads be moved farther to the west, Petitioner Paul again revised the project on May 17, 1991, to relocate the two house pads. While a more westerly location allowed a shorter driveway, the two house pads were slightly enlarged and the total area of fill proposed remained at 1.16 acres. At this time, application No. 05-187329-4 was formally transferred to Frank Hulse, who held an ownership interest in Tract 1.
Upon submittal of this revision, Petitioners' agent was advised by Department staff that further reduction and minimization of impacts would be required. Staff suggested that the house pads be relocated between two ditches which run along the western boundary of the properties within the impoundment near State Road 3. On October 22, 1991, another revision to the applications was made. The applicants now proposed to construct the houses on pilings and with filling only for two driveways and parking areas. The total area of fill for both properties was thereby reduced to two 500 foot long by 20 foot wide driveways and two parking fill pads 75 feet long by 20 feet wide. Under this proposal, the total area of wetlands to be filled was therefore reduced to approximately 0.28 acres.
On November 14, 1991, the Department issued a Notice of Permit Denial advising Petitioners that the permits would be denied because the applicant failed to provide the Department with reasonable assurance as required by Section 403.918(2)(a), Florida Statutes, that the project is not contrary to the public interest. Petitioners requested a hearing to challenge the denials, and the matters were referred to DOAH, where they were docketed as DOAH Case Nos.
92-0525 and 92-0526. The cases were placed in abeyance at DOAH at the request of the Petitioners.
On June 26, 1992, while the cases were pending before DOAH, Petitioners proposed a final version of their project. This proposal eliminated one of the driveways, suggesting the utilization of the existing berm along the south side of Tract 2 as a driveway. The two house pads were to be relocated so that they would be situated on the existing ditch and berm on the easternmost edge of the property immediately adjacent to the Banana River. The houses would be built on stilts with a shared driveway traversing the entire 500 foot width of the property with access to the second house via the berm. The total area of wetlands to be filled was 0.57 acres.
The mitigation proposed for these impacts was the removal of the remaining berm, the backfilling of the easternmost ditch, and the planting of 0.8 acres of herbaceous wetland vegetation. Petitioners also proposed to remove all nuisance and exotic vegetation from the project site. This version of the project was the subject of the formal hearing before DOAH, which was held in Melbourne, Florida on September 14, 1993, before DOAH Hearing Officer Mary Clark.
RULING ON EXCEPTIONS
Before proceeding further in the adjudication of this matter, it is essential to note the standard of review imposed by law on an agency in reviewing recommended orders submitted by a DOAH hearing officer. Under Section 120.57(1)(b)10., Florida Statutes, an agency may reject or modify the conclusions of law and interpretations of administrative rules contained in the recommended order. However, the agency may not reject or modify findings of
fact made by the hearing officer, unless a review of the complete record demonstrates that such findings were not based on competent, substantial evidence or that the proceedings on which the findings were based do not comply with the essential requirements of law. See, e.g., Freeze v. Department of Business Regulation, 556 So. 2d 1204 (Fla. 5th DCA 1990); Florida Department of Corrections v. Bradley, 510 So. 2d 1122 (Fla. 1st DCA 1987). The agency may not reweigh the evidence, resolve conflicts therein or judge the credibility of witnesses, as those matters are within the sole province of the hearing officer. Heifetz v. Department of Business Regulation, 475 So. 2d 1277 (Fla. 1st DCA 1985).
The Department excepts to the Recommended Order's ultimate Findings of Fact and Conclusions of Law. That is, the Department contends that the Hearing Officer applied an erroneous legal standard in determining that the Petitioners were entitled to receive a permit, based upon the Hearing Officer's approval of mitigation measures which were never presented to the Department for review and approval and do not meet the requirements of the Department's mitigation rules found in Chapter 17-312, Florida Administrative Code (F.A.C.). See Metropolitan Dade County v. Coscan Florida, Inc., 609 So. 2d 644 (Fla. 3d DCA 1992). This exception has merit, as will be discussed in detail below.
Review of the record in this case discloses that the Hearing Officer erroneously applied the governing law applicable to wetland resource permitting in Florida in formulating her Recommended Order. For a project to be permittable under Section 403.918, Florida Statutes, 1/ the project cannot cause or contribute to a violation of state water quality standards. See, e.g. Id. In this case, the parties stipulated that no water quality violation would be created by the project as proposed at the commencement of the hearing.
Finding of Fact, paragraph 19, Exhibit A.
Next, for a project which is neither located in nor expected to affect Class I waters, the project must be shown to be "not contrary to the public interest" measured against the multi-part public interest test of Section 403.918(2)(a)1.-7., Florida Statutes. If a project is unable to meet the public interest test, it still may be permittable if mitigation measures "proposed by or acceptable to the applicant" are deemed adequate by the Department, in its discretion, to offset the negative impacts of the project which cause it to fail muster under the public interest test. 1800 Atlantic Developers v. Department of Environmental Regulation, 552 So. 2d 946 (Fla. 1st DCA 1989), rev. den., 562 So. 2d 345 (Fla. 1990), construing Section 403.918(2)(b), Florida Statutes.
Measured against this statutory framework, the Recommended Order cannot be sustained. First, the Recommended Order confounds the application of the seven- part public interest test with mitigation analysis. To determine whether a project passes the public interest test, in the first analysis it is not appropriate to consider mitigation measures as the Hearing Officer clearly did. See Findings of Fact, paragraphs 26, 27, 28, 30, 31, 36, and 42, and Conclusions of Law paragraphs 55 and 60, Exhibit A. Rather, all of the negative environmental impacts of a project must first be considered against the benchmark of the public interest test to determine, as a matter of law, whether the project is permittable. If the project is permittable, no consideration of mitigative measures is necessary or appropriate.
If and only if a project fails the public interest test is a mitigation analysis required. By conducting these legally distinct analyses together, the Recommended Order incorrectly construes and applies the legal standard for wetland resource permitting and is subject to rejection by the Department under
1800 Atlantic, supra, at 954-5, Coscan, supra, at 648-9, and their progeny. Accordingly, the conclusions of law contained in the Recommended Order are REJECTED. University Community Hospital v. Dept. of Health and Rehabilitative Services, 610 So. 2d 1342 (Fla. 1st DCA 1992) (agency may reject conclusions of law contained in recommended order in favor of its own interpretation of controlling law).
The Recommended Order hinges on the Hearing Officer's determination that mitigation measures proposed by the Petitioners were adequate to offset the adverse environmental impacts of an otherwise unpermittable project 2/ and thereby render the project permittable. The record in this case, however, contains no competent substantial evidence that would support this determination. Moreover, and more importantly, it is not a hearing officer's prerogative to determine for the Department what mitigation measures might appropriately offset negative impacts to the public health, safety and welfare caused by the placement of houses and driveways in a functioning mosquito control impoundment. The mere fact that an alternative mitigation concept surfaced at the hearing during the Petitioners testimonial presentation and was accepted by the Hearing Officer 3/ does not constitute reasonable assurance that the project is not contrary to the public interest. See, e.g., Coscan, supra.
In evaluating whether the project would adversely affect the public health, safety, or welfare the Hearing Officer implicitly found that the mitigation plan proposed as part of Petitioners' June 1992 application, which involved removing the berm that separates the property from inundation by the Banana River, would destroy the mosquito control function of the impoundment. 4/ At Finding of Fact, paragraph 42, (Exhibit A, p. 14) she found that a conceptual plan suggested at the hearing was "an appropriate substitute for removal of the berm," tacitly acknowledging that the removal of the mosquito control berm--the essential feature of the actual mitigation plan proffered to the Department by the Petitioners--would adversely affect the public health, safety and welfare.
Rather than finding unequivocally that the Petitioners' actual mitigation plan threatened the integrity of the mosquito control impoundment, the Hearing Officer erroneously "straddled" the issue by crediting what can only be characterized as a speculative concept floated in testimony of a witness for the Petitioners: the notion of pumping water from the Banana River into the impoundment area. 5/ This led the Hearing Officer to a dual error: first, she discerned the existence of a "mitigation plan" where none was of record, and, most importantly, she purported to approve the supposed "plan" as the sole legal justification for the issuance of permits to the Petitioners under Section 403.918, Florida Statutes.
In each instance where the Hearing Officer found that the project would have a negative adverse impact in accordance with the statutory balancing test, she offered the alternative mitigation concept as a solution to the adverse impacts of the project. See Findings of Fact, paragraphs 26, 27, 28, Exhibit A. I cannot approve a permit based on an alternative mitigation concept that is based solely on the possibility that culverts and pumps will offset the adverse impacts of the project, especially when such a mitigation plan has never been submitted to the Department. 6/ The facts found by the Hearing Officer do not support a legal conclusion that the proposed project is "not contrary to the public interest," with or without either of the mitigation concepts proposed by Petitioners.
CONCLUSIONS OF LAW
The following Conclusions of Law are substituted for those of the Hearing Officer rejected above:
Petitioners have not provided the Department with reasonable assurance that the proposed development is not contrary to the public interest within the meaning of Section 403.918(2)(a), Florida Statutes.
The proposed project is contrary to the public interest within the meaning of Section 403.918, Florida Statutes, and is therefore not permittable without mitigation.
The mitigation plan proposed by Petitioner as part of the application is not sufficient as a matter of law to offset the negative environmental impacts of the proposed project and therefore constitute adequate mitigation for the impacts within the meaning of Section 403.918(2)(b), Florida Statutes.
The alternative mitigation concept was not sufficient to offset negative impacts of the project for the reasons set forth above.
Petitioner failed to modify the application or to provide adequate mitigation to offset negative environmental impacts. Consequently, the Department is prohibited by Rule 17- 312.060(10), F.A.C., from issuing a permit to Petitioner. See Section 403.918(2)(b), Florida Statutes, 17-312.060(10) and 17- 312.300(3) and (4), Florida Administrative Code.
ACCORDINGLY, IT IS ORDERED THAT:
The Findings of Fact contained in Exhibit A are ADOPTED except as described herein.
The Conclusions of Law contained in Exhibit A are REJECTED as discussed above.
Permit Application Nos. 05-187329-4 and 05-187334-4 are DENIED, without prejudice to the resubmittal of applications. Thomson v. Department of Environmental Regulation, 511 So. 2d 989 (Fla. 1987).
Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the clerk of the Department.
DONE AND ORDERED this 2nd day of May, 1994, in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
VIRGINIA B. WETHERELL
Secretary
Twin Towers Office Building 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
FILING AND ACKNOWLEDGMENT
FILED, on this date, pursuant to S120.52 Florida Statutes, with the designated Department Clerk, receipt of which is hereby acknowledged.
5/2/94
Clerk Date
ENDNOTES
1/ The provisions of Sections 403.918 and 403.919 were repealed effective July 1, 1993, by Ch. 93-213, s. 44, Laws of Florida. These provisions were incorporated in substantial form into the provisions of Section 373.414, Florida Statutes (1993), by s. 30 of Ch. 93-213. The "grandfather" provisions of s. 43 of Ch. 93- 213 state that the "repeal of any statutory sections under this section shall not be grounds for dismissal or amendment of and shall have no effect on any administrative or judicial proceeding pending on the effective date of the act."
2/ The Hearing Officer rejected Petitioners' proposed conclusion that the project was permittable without mitigation. Appendix to Recommended Order, paragraph 45, p. 23, Exhibit A. I agree with and accept this conclusion.
3/ By acknowledging that the negative impacts of the project would not be outweighed without addition of the alternative mitigation concept, the Hearing Officer in effect found that the project as proposed failed the public interest test.
4/ Finding of Fact, paragraph 26, p. 10, Exhibit A, provides: The Petitioners had proposed the scraping of a portion of the berm and establishing marsh grass to provide a nursery habitat in mitigation for the impact of filling the easternmost ditch. The BCMD objects to any removal of the berm, as it would threaten the integrity of the entire impoundment and destroy its function.
Petitioners are willing to leave the berm intact, and their consultant has suggested the alternative of providing a system of culverting and pumping that would enable the impoundment to receive more saltwater, thereby enhancing the establishment of a saltwater marsh and improving fish and wildlife functioning for the natural control of mosquitoes. (Transcript, p. 70)
5/ The only evidence of record regarding the pumping and culverting concept suggested by Petitioners' consultant at the hearing is found at pages 69-71 of the Transcript. This testimony is reproduced in full as Exhibit B to this order.
6/ Manifestly, any such plan, had one been submitted, would have to meet the requirements of the Department's mitigation rules found in Chapter 17-312, Florida Administrative Code. As part of the mitigation proposal, the rule requires, for example, submission of the following: hydroperiod calculations, long-term maintenance plan, conservation easements where appropriate, a showing that pump discharge would not contribute to or cause water quality violations, and proof of financial responsibility. The burden is not on the Department to devise a mitigation plan acceptable to the applicant based on the applicant's mitigation concept. The applicant is required to submit an appropriate written proposal to the Department for review and evaluation. The complex technical and legal issues associated with long term operation of active mitigation measures has traditionally militated against Department acceptance of mechanically driven pumping and aeration systems as mitigation. Such proposals require greater scrutiny to assure compliance with the statute and rules for protection of the public interest.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been furnished by U.S. mail to
Richard A. Lotspeich, Esquire Landers & Parsons
Post Office Box 271 Tallahassee, Florida 32302
and by hand delivery to:
Mary Clark, Hearing Officer Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
Ann Cole, Clerk
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
John L. Chaves, Esquire
Department of Environmental Protection 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
This 2nd day of May, 1994.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
MARTHA L. NEBELSIEK
Assistant General Counsel
Twin Towers Office Building 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
| Issue Date | Proceedings |
|---|---|
| May 02, 1994 | Final Order filed. |
| Apr. 14, 1994 | Petitioner`s Response To Department of Environmental Protection`s Exceptions To The Recommended Order filed. |
| Apr. 04, 1994 | State of Florida Department of Environmental Protection's Exceptions to the Recommended Order filed. |
| Mar. 18, 1994 | Recommended Order sent out. CASE CLOSED. Hearing held September 14,1994. |
| Oct. 29, 1993 | Petitioners` Proposed Recommended Order filed. |
| Oct. 29, 1993 | Proposed Recommended Order of Respondent Department of Environmental Regulation (Protection) filed. |
| Oct. 26, 1993 | Joint Motion for Extension of Time to File Proposed Recommended Order filed. |
| Oct. 12, 1993 | Transcript (Vols 1&2) filed. |
| Sep. 14, 1993 | CASE STATUS: Hearing Held. |
| Sep. 08, 1993 | (Joint) Prehearing Stipulation filed. |
| Sep. 07, 1993 | Department of Environmental Protection`s Amended Response to Petitioners` First Request for Admissions; Notice of Taking Deposition Duces Tecum filed. |
| Sep. 01, 1993 | Motion for Acceptance of Respondent`s Answers to Petitioners` First Request for Admissions; Department of Environmental Protection`s response to Petitioners` First Request for Admissions filed. |
| Aug. 31, 1993 | Notice of Department of Environmental Protection`s Serving Answers to Petitioner`s Second Set of Interrogatories filed. |
| Jul. 27, 1993 | (Petitioner) Notice of Serving Second Interrogatories to Respondent filed. |
| May 14, 1993 | Prehearing Order sent out. |
| May 14, 1993 | Notice of Hearing sent out. (hearing set for 9-14-93; 9:00am; Melbourne) |
| May 11, 1993 | Order sent out. (parties shall file a status report within 10 days of the date of this order) |
| May 11, 1993 | (Petitioners) Request to Set Final Hearing filed. |
| Oct. 23, 1992 | Order of Abeyance sent out. (case shall remain in abeyance until either party files a request to set for hearing, or petitions are withdrawn) |
| Oct. 22, 1992 | (Petitioners) Motion to Abate Final Hearing w/Exhibit-A filed. |
| Sep. 09, 1992 | Order of Prehearing Instructions sent out. |
| Sep. 09, 1992 | Notice of Hearing sent out. (hearing set for December 3 and 4, 1992;beginning at 9:30am on 12-3-92; Melbourne) |
| Aug. 28, 1992 | Notice of Service of Consolidated Answers of James Paul and Frank Hulse, IV to Department of Environmental Regulation's First Interrogatories filed. |
| Aug. 25, 1992 | (Petitioner) Status Report and Request to Schedule Final Hearing filed. |
| Jul. 15, 1992 | Order of Continued Abeyance sent out. (Parties to file status report by 9-15-92) |
| Jul. 09, 1992 | (Petitioner) Status Report filed. |
| Jun. 01, 1992 | (Petitioner) Status Report filed. |
| Apr. 22, 1992 | Order of Consolidation and Abeyance sent out. (Consolidated cases are: 92-0525 and 92-0526, partie shall file status report by 6-1-92) |
| Apr. 22, 1992 | Case No. 92-0525 : unconsolidated. |
| Apr. 22, 1992 | Order of Consolidation and Obeyance sent out. (Consolidated cases are: 92-0525 and 92-0526) |
| Apr. 13, 1992 | Order sent out. (motion for continuance granted) |
| Apr. 09, 1992 | (Petitioner) Motion for Continuance filed. |
| Apr. 01, 1992 | (Petitioner) Notice of Serving First Interrogatories to Respondent filed. |
| Mar. 20, 1992 | (DER) Notice and Certificate of Service of Interrogatories filed. |
| Feb. 28, 1992 | Prehearing Order sent out. |
| Feb. 28, 1992 | Order and Notice of Hearing sent out. (hearing set for 5-11-92; 9:00a; Talla) |
| Feb. 27, 1992 | (Petitioner) Response to Initial Order and Request to Consolidate filed. |
| Jan. 31, 1992 | Initial Order issued. |
| Jan. 28, 1992 | Request for Assignment of Hearing Officer and Notice of Preservation of Record; Agency Intent to Issue; Petition for Formal Administrative Hearing filed. |
| Issue Date | Document | Summary |
|---|---|---|
| May 02, 1994 | Agency Final Order | |
| Mar. 18, 1994 | Recommended Order | DEP jurisdicition not defeated by impoundment of Petitioner's proposed dredge & fill project with modifications agreed at hearing meets criteria. |
