STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

DAVID AND VICTORIA PAGE, )

)

Petitioners, )

)

vs. ) CASE NO. 92-0975

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on April 9, 1992, in Brooksville, Florida.

APPEARANCES

For Petitioners: Robert A. Webb

4348 Paradise Circle

Spring Hill, Florida 34607

For Respondent: W. Douglas Beason, Esquire

Twin Towers Office Building 2600 Blairstone Road

Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUES

The issue is whether petitioners' application for a water resource permit to perform certain construction activities on a residential lot in Hernando Beach, Florida, should be granted.

PRELIMINARY STATEMENT

This matter began on June 12, 1990, when petitioners, David and Victoria Page, filed an application with respondent, Department of Environmental Regulation (DER), seeking the issuance of a water resource permit to construct a vertical concrete wall, place rip-rap at the toe of the seawall, and place 100 cubic yards of backfill on their residential lot located in Hernando Beach, Florida. On January 18, 1991, DER gave notice of its intent to deny the application. By letter dated January 17, 1992, petitioners requested a formal hearing to contest the agency's preliminary decision. The matter was referred by DER to the Division of Administrative Hearings on February 13, 1992, with a request that a Hearing Officer be assigned to conduct a hearing. By notice of hearing dated March 2, 1992, a final hearing was scheduled for April 16, 1992 in Brooksville, Florida. At the request of respondent, the hearing date was changed to April 9, 1992, at the same location.

At final hearing, petitioners were represented by Victoria Page's father, Robert A. Webb, accepted as a qualified representative and who also testified in their behalf. Also, they offered petitioners' exhibits 1, 2, 6 and 10-13. All exhibits were received in evidence. DER presented the testimony of Richard W. Pugh, a DER field environmental specialist and accepted as an expert in dredge and fill permitting with regard to seawalls, William L. Vorstadt, a DER environmental specialist II, and Dr. Douglas H. Farrell, DER monitoring coordinator and technical advisor for dredge and filling and accepted as an expert in marine biology for dredge and filling. Also, it offered exhibits 1-9 which were received in evidence.

There is no transcript of hearing. Proposed findings of fact and conclusions of law were filed by DER on April 24, 1992. In addition, a document entitled "Closing Arguments" was filed by petitioners on April 23, 1992, and has been considered. A ruling on each proposed finding has been made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. This controversy began on July 9, 1990, when petitioners, David and Victoria Page, filed an application with the district office of respondent, Department of Environmental Regulation (DER), seeking the issuance of a permit authorizing certain construction activities (including the erection of a seawall) on their residential lot located at 3108 Gulfwinds Circle, Hernando Beach, Florida. The property faces west on the Gulf of Mexico, a water body designated as a Class III water in the State. The application was eventually deemed to be complete on October 24, 1990.

   
   

2. After conducting a review of the application and an on-site inspection of the property, on January 18, 1991, DER issued its notice of permit denial. The notice identified the reasons for the denial as being petitioners' failure to give reasonable assurances that water quality standards would not be violated and that the project would be in the public interest. Also, DER cited expected adverse cumulative impacts if the application was granted. The notice provided further that if petitioners agreed to locate their seawall landward of the jurisdictional line, the project would be approved. In July 1991, petitioners amended their application to propose that the seawall be constructed even further seaward of the jurisdictional line. When efforts to resolve the case were unsuccessful, petitioners requested a formal hearing on January 17, 1992, to contest the agency's decision.

   
   

3. Petitioners purchased their property in 1989. It lies within Unit 2 of Gulf Coast Retreats, a residential subdivision in Hernando Beach, Florida. The property is identified as lot 20 on Gulfwinds Circle and fronts the Little Pine Island Bay (Bay), which is a part of the Gulf of Mexico. Access to the Gulf is provided by a channel (six feet in depth) in the Bay in front of lot 20 and which eventually runs into the Gulf several miles south of petitioners' lot. It is undisputed that in 1985 Hurricane Elena passed offshore causing erosion to lot 20 and other adjacent lots. Consequently, the upland portion of the lot is now smaller than before the hurricane. However, petitioners purchased their property in that state of condition.

   
   

4. Lots 19 and 21 are on the south and north sides of petitioners' property and are owned by the Steins and Budricks, respectively. Both neighbors

   have constructed vertical concrete seawalls in front of their homes. Budrick was issued a permit to construct a seawall on December 28, 1989, while Stein constructed his without a permit. However, Stein has subsequently filed an after-the-fact permit application and was recently advised by DER that the application was complete. At hearing, a DER representative expressed the view that the Stein application will probably be approved since his wall is landward of the DER jurisdictional line. It is noted that the Stein and Budrick seawalls sit back from the original property lines because of the erosion suffered during the 1985 hurricane and correspond to the jurisdictional line established by DER on their property. Another application for a permit to construct a seawall was filed by the owner of lot 18 in March 1992. Like Stein and Budrick, that owner proposed to construct his wall on the landward side of the jurisdictional line.

   
   

5. Petitioners, who live in Kansas, desire to construct a home on their lot. They have proposed to place one hundred cubic yards of fill (limerock) on 1,065 square feet of intertidal wetlands on the western end of their lot and construct a 110-foot vertical seawall up to thirty feet seaward of the jurisdictional line. Thus, there will be dredge and filling activities in the Gulf of Mexico, a class III water of the state, thereby invoking the jurisdiction of DER.

   
   

6. By law, DER is required to establish a jurisdictional line to show the landward extent of waters of this state, including the Gulf of Mexico. Such extent is normally defined by species of plants or soils which are characteristic of those areas subject to regular and periodic inundation by the waters of the state. As a general practice, using a prescribed plant or species indicator list, DER makes an on-site inspection of the property to determine what vegetation, if any, is found on the property and is subject to regular and periodic inundation by the waters. In this case, the dominant vegetation found on lot 20 was paspalum distichum, a plant on the species list subject to regular and periodic inundation by the Gulf waters. Accordingly, DER observed where the vegetation ended and used that point for the placement of the jurisdictional line. As a cross check, DER also noted the rack line, which is indicative of the landward extent to which the high tides rise, and found it to correspond to the vegetation line. It should be noted that the jurisdictional line established on petitioners' property corresponds with the line drawn on lots 18,

   19 and 21, and if that line is used to construct the seawall on lot 20, the seawalls on all four lots would run in a straight line. Although petitioners objected to the jurisdictional line as established by DER, they offered no credible evidence to show that it was improper or should have been placed at a different location.

   
   

7. On January 9 and 15, 1991, Richard W. Pugh, a DER field environmental specialist, conducted an on-site inspection of the property and adjacent waters. He also was responsible for establishing the jurisdictional line. Finding numerous adverse environmental effects that would occur if the permit was granted as proposed, Pugh recommended that the application be denied. This recommendation was accepted by the deputy assistant secretary for DER's Southwest District Office and a notice of permit denial was accordingly issued. The bases for the denial were that (a) reasonable assurances had not been given by petitioners that water quality standards would be satisfied; (b) a cumulative adverse impact on the area would occur if the permit was approved, and (c) petitioners had failed to give reasonable assurances that the project was in the public interest.

   
   

8. In order to prove entitlement to a permit, petitioners must give reasonable assurance that water quality standards will not be violated and that

   the project is in the public interest. In this respect, they offered no evidence to provide these assurances. This in itself supports a finding that no entitlement to a permit has been shown. Even so, the agency elected to present evidence on these issues after petitioners' case-in-chief was concluded.

   Findings of fact drawn from that evidence are set forth below.

   
   

9. On April 6, 1992, a DER marine biologist, Dr. George H. Farrell, visited the site and conducted a biological evaluation of the composition of the benthic community in the intertidal and subtidal wetlands which would be impacted by the project. Based on his tests and observations, Dr. Farrell concluded that the project as proposed would have an adverse impact on marine and wildlife resources in the area. This is because the area has very good water quality, contains a high species diversity, performs an integral part in the food web, and serves a valuable nursery function for estuarine dependent juvenile fish species and a corridor function for migrating estuarine dependent fish species. This testimony was not challenged by petitioners and is hereby accepted. 1/

   
   

10. In granting or denying a water resource permit, DER is also required to consider certain statutory criteria found in Subsection 403.918(2), Florida Statutes, to determine whether a project is in the public interest. Although petitioners did not address these criteria, and thus failed to give any assurances that the project is in the public interest as required by law, testimony adduced by DER established that under petitioners' proposal, there will be a permanent loss of 1,065 square feet of intertidal wetlands due to filling activities. These wetlands are now used by fish and wildlife habitat and will no longer be available for use. In addition, the same area is used as a nursery area by a variety of fish species. As such, the project will adversely affect the conservation of fish and wildlife and their habitats and will adversely affect the fishing values and marine productivity in the vicinity. Second, because petitioners' proposed seawall will jut out from their neighbors' walls by as much as thirty feet, and the corners of the seawall in that configuration will result in erosion or shoaling depending on whether the waters are moving north or south, the project will cause harmful erosion or shoaling. Third, because the wall is being constructed of concrete and steel and is not temporary, the project will be of a permanent nature and thus have a permanent adverse impact. Finally, the ecological functions being performed in the immediate vicinity of the project are extremely important and the elimination of this zone will significantly impair those functions. Collectively, these considerations support a finding that the project is not in the public interest.

    
    

11. DER has a policy of not granting a permit if adverse cumulative impacts may be expected as a result of granting that permit. This policy is derived from a statute (s. 403.919, F.S.) requiring such impacts to be considered in the permitting process. In the case at bar, DER reasonably predicts that if it granted petitioners' application and authorized them to construct a seawall which jutted out up to thirty feet beyond their neighbors' walls, it would be obligated to grant similar permits to property owners on adjacent lots. Because petitioners' application will have an adverse impact on the water quality and is contrary to the public interest, the granting of additional permits would exacerbate those impacts.

    
    

12. When an applicant proposes to fill (destroy) wetlands, and the applicant is unable to meet the public interest criteria set forth in subsection 403.918(2), DER shall consider measures proposed by or acceptable to the

    applicant to mitigate the adverse effects caused by the project. In this case, no mitigative measures were proposed by petitioners.

    
    

13. At hearing, petitioners' representative asserted that in June 1991, the Cabinet (presumably sitting as the Board of Trustees of the Internal Improvement Trust Fund) implemented a new "policy" which allows property owners to "recover and bulkhead" land previously lost due to avulsion and erosion. He further represented that such requests were to be filed within five years after the event (hurricane). Although petitioners were not the property owners when the event occurred, and more than five years has elapsed, in July 1991 petitioners filed a request with the Department of Natural Resources (DNR) to reclaim and bulkhead their property and that request remained pending as of the date of hearing. A copy of the policy itself (or rule, if any, implementing the policy) was not made a part of this record. Even so, there was no evidence to establish that the granting of that application would require DER to grant a water resource permit, and DER takes the position that the request has no bearing on the issue of whether a water resource permit should be issued to petitioners.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1991).

    
    

15. As the party seeking the issuance of a permit, petitioners bear the burden of proving by a preponderance of the evidence their entitlement to the requested permit. Florida Department of Transportation v. J. W. C. Company, Inc., 397 So.2d 778, 787 (Fla. 1st DCA 1981). This includes the burden of showing that cumulative impacts do not cause a project to be contrary to the public interest or violate water quality standards. The Conservancy, Inc. v. A. Vernon Allen Builder, Inc., 580 So.2d 772 (Fla. 1st DCA 1991).

    
    

16. Although petitioners' representative asserted at hearing that one of the issues in this proceeding is whether petitioners are entitled to compensation for having their land "taken", that issue is beyond the jurisdiction of both the undersigned and the agency and should, if warranted, be raised in another forum at the appropriate time. In addition, petitioners have suggested that this proceeding may be moot if their application to recover and bulkhead the eroded lands filed with DNR is approved. Assuming for the sake of argument only that the application has some bearing on this action, it is still pending and therefore is not final. Accordingly, the undersigned will consider only the issue of whether petitioners' application for a water resource permit should be granted.

    
    

17. Section 403.918, Florida Statutes (1991) sets forth the criteria for granting or denying permits of the type sought by petitioners. Subsections (1) and (2) therein are relevant to this controversy and provide in part as follows:

    
    

    1. A permit may not be issued under ss. 403.91-403.929 unless the applicant provides the department with reasonable assurance that water quality standards will not be violated.

       . . .

    2. A permit may not be issued under ss. 403.91-403.929 unless the applicant provides the department with reasonable assurance that

       the project is not contrary to the public interest.

       1. In determining whether a project is not contrary to the public interest, . . . the department shall consider and balance the following criteria:

          * * *

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

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

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

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

          * * *

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

          * * *

          
          

          The above requirements are also codified in Rule 17-312.080, Florida Administrative Code. In addition, the agency is required to consider the language in Section 403.919, Florida Statutes. That section reads in pertinent part as follows:

          
          

          The department, in deciding whether to grant or deny a permit for an activity which will affect waters, shall consider:

          * * *

    3. The impact of projects which are now under review, approved, or vested pursuant to

       s. 380.06, or other projects which may reasonably be expected to be located within the jurisdictional extent of waters, based upon land use restrictions and regulations.

       
       

18. Based upon the evidence presented herein, it is concluded that petitioners have failed to meet their burden of showing entitlement to the requested permit. More specifically, there was no evidence presented to establish reasonable assurance that water quality standards would not be violated or that the project is in the public interest. In addition, it is concluded that the issuance of a permit would reasonably be expected to lead to other requests for permits for the same activity in the immediate area and thus would violate subsection 403.919(3). Therefore, petitioners' request for a water resource permit should be denied.

    
    

19. In reaching the above conclusions, the undersigned has given consideration to the arguments raised in petitioners' closing argument. Among other things, they complain that the public interest criteria found in subsection 403.918(2) are nonspecific and difficult for an applicant to satisfy. However, these criteria have been in effect since 1984 and applied on a case by case basis in literally hundreds of dredge and fill cases. As such, there is

ample precedent for a landowner to use and follow when applying for such a permit. Petitioners also assert that it is unfair for DER to give less priority to their own property rights than to the rights of fish and wildlife who now habitat that portion of the lot which was lost during the 1985 hurricane. By law, however, DER is obliged to consider the impacts of dredge and filling on jurisdictional wetlands situated on private property, including lot 20. Just because an act of nature (hurricane) has moved those wetlands further eastward on petitioners' lot does not excuse the agency from enforcing the law. Under petitioners' theory, a landowner could undertake any activity on private property no matter what the effect on jurisdictional wetlands might be, a theory which clearly runs counter to state law. The remaining arguments have been considered and are likewise found to be without merit.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying petitioners' application

for a water resource permit.

DONE and ENTERED this 27th day of April, 1992, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1992.

ENDNOTES

1/ Petitioners' representative did not challenge the results of the tests or the opinions expressed by Dr. Farrell. Rather, he argued the testimony was "irrelevant" since it was based on an inspection made after the notice of permit denial was issued. Because this is a de novo proceeding, the argument is misplaced.

APPENDIX TO RECOMMENDED ORDER

Respondent:

10-12. Partially adopted in finding of fact 4.

1. Rejected as being unnecessary.

2. Partially adopted in finding of fact 10.

3. Partially adopted in finding of fact 2.

4. Partially adopted in finding of fact 6.

5. Partially adopted in finding of fact 11. 18-21. Partially adopted in finding of fact 9.

1. Partially adopted in finding of fact 12.

2. Rejected as being cumulative.

Note - Where a proposed finding has been partially adopted, the remainder has been rejected as being irrelevant, unnecessary, cumulative, subordinate, or not supported by the evidence.

COPIES FURNISHED:

Carol M. Browner, Secretary

Department of Environmental Regulation 2600 Blairstone Road

Tallahassee, FL 32399-2400

Daniel H. Thompson, Esquire Twin Towers Office Building 2600 Blairstone Road

Tallahassee, FL 32399-2400

Mr. Robert A. Webb 4348 Paradise Circle Spring Hill, FL 34607

W. Douglas Beason, Esquire Twin Towers Office Building 2600 Blairstone Road Tallahassee, FL 32399-2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the final order in this case concerning their 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.

Docket for Case No: 92-000975

Orders for Case No: 92-000975