STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HELEN C. SUTTON, )

)

Petitioner, )

)

vs. ) CASE NOS. 93-1499

) 93-6507

TANA HUBBARD and STATE OF FLORIDA ) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this proceeding before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on March 8 and 9, 1994, in Crystal River, Florida and on March 27, 1995, in Tallahassee, Florida.

APPEARANCES

For Petitioner: John H. Rains, III, Esquire

Ammis, Mitchell, Cockey, Edwards & Roehn, P.A.

One Tampa City Center Building, Suite 2100 Tampa, Florida 33601

For Respondent, Keith Hetrick, Esquire Department of Evelyn Davis Golden, Esquire Environmental M.B. Adelson, Esquire Protection: Douglas MacLaughlin, Esquire

Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

For Respondent, Emily G. Pierce, Esquire

Tana Hubbard: Marcia Penman Parker, Esquire

Roger, Towers, Bailey, Jones & Gay 1301 Riverplace Boulevard, Suite 1500

Jacksonville, Florida 32207 STATEMENT OF THE ISSUES

The issues for determination in this proceeding are whether Respondent, Department of Environmental Protection (the "Department"), should issue a permit for an existing retaining wall and dock located at the residence of Respondent, Tana Hubbard ("Hubbard"), in waters of the state; and whether the Department should issue an after-the-fact consent of use for the dock.

PRELIMINARY STATEMENT

The Department issued a Notice of Intent to Issue a dredge and fill permit for construction of the Hubbard dock on November 4, 1992. On December 10, 1992, the Department issued a dredge and fill permit for the dock.

Petitioner filed a Petition challenging the permit on December 7, 1992. On February 19, 1993, the Department dismissed the Petition. On March 4, 1993, Petitioner filed an Amended Petition. In the interim between the Petition and Amended Petition, Hubbard constructed the dock.

The dock Hubbard constructed did not comply with the permitted plans.

Hubbard notified the Department that the dock was not in compliance with the permitted plans.

On July 30, 1993, Hubbard and the Department entered into a Consent Order approving the dock constructed by Hubbard. On October 5, 1993, Petitioner filed a petition challenging the Consent Order.

Matters relevant to the project as constructed, the dredge and fill permit, and the Consent Order were addressed by the parties in the formal hearing conducted on March 8-9, 1994. The formal hearing was continued to address Petitioner's allegation that the dock was constructed on sovereign submerged lands without a consent of use.

On September 2, 1994, the Department issued a Notice of Agency Statement that the Board of Trustees of the Internal Improvement Trust Fund (the "Board") claimed ownership of the submerged lands on which the dock was constructed.

Hubbard applied for a consent of use and, on September 20, 1994, the Department issued an after-the-fact consent of use for the Hubbard dock.

Petitioner challenged the consent of use and requested a formal hearing.

Petitioner's challenge to the consent of use was heard on March 27, 1995. Pursuant to the agreement of the parties, the matters were consolidated.

At the formal hearing on March 8-9, 1994, and March 27, 1995, Petitioner presented the testimony of three witnesses and submitted 13 exhibits for admission in evidence. Respondents presented the testimony of nine witnesses and submitted 35 exhibits for admission in evidence. The identity of the witnesses and exhibits and the evidentiary rulings regarding each are set forth in the transcripts of the formal hearings filed with the undersigned on March 17, 1994, March 27 and 29, 1995, and on April 6, 1995.

The parties timely filed proposed recommended orders ("PROs") on April 27, 1995. Proposed findings of fact in Respondents' PRO are accepted in this Recommended Order. Proposed findings of fact in Petitioner's PRO are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Dredge And Fill Permit And Consent Order

   
   

   1.01 Background

   
   

   1. On December 10, 1992, the Department issued a dredge and fill permit pursuant to Florida Administrative Code Rule 17-312. 1/ The permit was issued to Hubbard in care of Dock Masters of Homosassa, Inc. ("Dock Masters"). Dock Masters is the entity responsible for the project.

      
      

   2. The project is located in a lagoon off Kings Bay, in the Crystal River in Citrus County, Florida. It is in a man-altered Class III waterbody in Section 28, Township 18 South, Range 17 West, on Lot 15, West Baywater Court.

      
      

   3. The permit authorized construction of an 883 square foot single family dock and 70 foot retaining wall. The permit required Hubbard to create 346 square feet of wetlands as mitigation and to dedicate all remaining wetlands on the site as a conservation easement to the Department.

      
      

   4. The dock is constructed several feet east of the permitted location and is built in a slightly different configuration. The permitted square footage over the water is

      reduced in the dock actually constructed by approximately 20 feet. About 10 feet of fill is added to wetlands.

      
      

   5. Hubbard notified the Department of the discrepancy between the permitted dock and the dock actually constructed. In July, 1993, the Department inspected the site and determined that the dock was not constructed in accordance with the permit.

      
      

   6. The Department determined that there was a violation of the permit. The location and configuration of the dock actually constructed did not comply with the permitted plans. However, the Department determined that the dock actually constructed was permittable.

      
      

   7. The Department entered into a Consent Order with Dock Masters approving the dock actually constructed. The Consent Order imposed civil penalties of

      $932 and costs of $150 but required no corrective action.

      
      

   8. During the formal hearing conducted on March 8-9, 1994, Hubbard requested that the dock actually constructed be shortened 3.5 feet and that a four foot section of the west side of the dock be removed (the "as-built dock"). Modifications included in the as-built dock are minor. They merely reduce the size of the dock and do not create additional adverse impacts.

      
      

   9. Petitioner is an adjacent land owner to the as-built dock. Petitioner's dock is configured, more or less, parallel to the shore line. The as-built dock on Hubbard's property is configured, more or less, perpendicular to the shore line.

      
      

   10. The as-built dock extends farther into the lagoon than does Petitioner's dock. In addition, the as-built dock is situated between Petitioner's dock and the confluence of the lagoon and King's Bay.

       1. Navigation

          
          

   11. The as-built dock does not adversely impact navigation. The as-built dock extends approximately 37 feet into the lagoon. The lagoon is approximately

       197 feet wide at the project site. There is 160 feet of open water in which to navigate past the as- built dock.

       
       

   12. Depths in the open water beyond the end of the as-built dock are adequate for navigation. During low tide, depths in the lagoon at the project site are: 3.5 feet at the end of the as- built dock; 5.0 feet, 40 feet from the end of the dock; 4.4 feet, 80 feet from the end of the dock; and 3.0 feet, 120 feet from the dock.

       
       

   13. The as-built dock does not adversely affect boaters' ingress and egress into and out of the lagoon. The center of the navigational channel in the lagoon is approximately 40 feet from the edge of the as-built dock. In extremely low tides, areas around the as-built dock will go dry before the center of the navigational channel goes dry.

       
       

   14. Boat traffic in the lagoon is sparse at the project site. Boats using the lagoon are required to travel at idle speed. The speed limit is posted on signs in the lagoon.

       
       

   15. The as-built dock does not present a navigational hazard. The dock is easily seen and is lighted at night.

       
       

       1. Manatees

          
          

   16. The as-built dock will not adversely impact manatees. The area around the project site is not a core area for manatees. The as-built dock is a single family dock with a berth for one boat.

       
       

   17. The U.S. Fish and Wildlife Service and the Department's Threatened and Endangered Species Section have responsibility for protecting manatees. Both agencies were contacted regarding the Hubbard dock. Neither agency objects to the as-built dock.

       
       

   18. Manatees congregate around large springs. There are no large springs near the project site. The two nearest manatee sanctuaries are approximately 2,000 feet from the as-built dock.

       
       

   19. No boating or snorkeling is allowed in the manatee sanctuaries during manatee season. Boat traffic in the lagoon where the as-built dock is located is limited to idle speed.

       
       

   20. Manatees feed on hydrilla. Hydrilla is the predominant submerged plant around the project site.

       
       

   21. The as-built dock has no significant adverse impact on hydrilla in the area. Even if the as-built dock had an adverse impact on hydrilla, the as-built dock will not significantly reduce the amount of hydrilla available for manatee feeding.

   22. Hydrilla is an exotic plant that crowds out native plants. Hydrilla is harvested or treated with herbicides by

       Citrus County to try to control the growth of hydrilla. Citrus County attempted to control the growth of hydrilla by harvesting or treating approximately 666 acres of hydrilla in 1992 and approximately 580 acres in 1993.

       
       

       1. Other Potential Impacts

          
          

   23. The as-built dock will not cause any other adverse impacts to the public interest. The as-built dock does not adversely affect the property of others living on the lagoon and does not prevent reasonable access to any other property on the lagoon.

       
       

   24. The as-built dock does not adversely affect public safety. The dock is highly visible and is lighted at night. The project is located in an area in which boat traffic is limited to idle speed.

       
       

   25. The as-built dock does not adversely affect the conservation of fish and wildlife species, including threatened or endangered species, or the habitats of such fish and wildlife species. Aquatic habitat around the as-built dock is functioning normally.

       
       

   26. Shoreline vegetation is relatively natural and includes sawgrass, arrowhead, cedars, and red bay trees. The mitigation area has been correctly initiated and is now tending toward success as plantings mature. Use of the as- built dock avoids damage to shoreline and submerged vegetation that otherwise may occur if a boat were brought to shore in the absence of the dock.

       
       

   27. Various species of fish use the area, but the primary species is mullet. The retaining wall will benefit fish and wildlife habitat by preventing fertilizer and other yard chemicals from draining directly into the lagoon and causing water quality problems.

       
       

   28. Fish and wildlife habitat is further protected from adverse impacts by permit conditions. Permit conditions prohibit live-aboard boats, fueling facilities, and fish cleaning facilities at the dock.

       
       

       1. Cumulative Impacts

          
          

   29. The as-built dock and similar facilities in the area will not have a cumulative adverse impact on fish and wildlife habitat, endangered species, or navigation. Hubbard conveyed a conservation easement to the Department covering the remaining 400 feet of her shoreline.

       
       

   30. No future permitted or permit exempt docks can be built on Hubbard's shoreline. Remaining wetlands on-site will be preserved in perpetuity.

       
       

   31. Few docks and seawalls can be constructed in the area in the future. Substantially all of the residential lots in the area along the lagoon have: already been built out; already have water dependent facilities such as docks and slips; and already are sea-walled or rip-rapped.

       
       

   32. The state's land acquisition program (the "P-2000 Program") is seeking to acquire major tracts along the Crystal

       River in nearby areas. Those acquisitions will prevent similar future development in areas farther from the as-built dock.

       1. Benefits To The Public Interest

       
       

   33. The as-built dock has resulted in benefits to the public interest including the conservation easement over 400 feet of shoreline and wetlands. The conservation easement will benefit the public interest by permanently preserving fish and wildlife habitat.

       
       

   34. The as-built dock helps prevent prop dredging that may otherwise occur if a boat were kept on the shoreline in the absence of a dock. The retaining wall will reduce fertilizer and yard chemical runoff into the lagoon.

       
       

2. Consent Of Use

   
   

   1. Background

      
      

      1. The Department notified Hubbard on September 2, 1994, that the as-built dock and retaining wall are located on sovereign submerged lands. Hubbard applied for an after-the-fact consent of use pursuant to Florida Administrative Code Chapter 18-21. On September 20, 1994, the Department issued an after- the- fact consent of use on Project No. 091923403 to allow Hubbard to maintain and use the dock on sovereign submerged land.

         
         

   2. Review Of The Dock

      
      

      1. The as-built dock was reviewed by Mr. Todd A. Vandeberg, Planning Manager for the Department's Southwest District, Mr. Henry Michaels, and Mr. Matt Clements in accordance with Rule 18- 21 and the Department's guidelines and policies for issuing consents of use for single family docks. See, Submerged Lands Environmental Resources Program Operations and Manual, Volume III (the "Operations Manual"). Mr. Michaels and Mr. Clements performed an on-site compliance check with respect to the as- built dock in accordance with Rule 18-

         21 and the Operations Manual.

         
         

      2. The as-built dock is not contrary to the public interest. The dock preempts less than 1,000 square feet of sovereign land for each 100 linear feet of shoreline owned by Hubbard. The dock meets the 25 foot setback requirements of the Board. The dock extends only to a depth of three feet rather than the four foot depth allowed. The dock extends across only 19 percent of the width of the lagoon.

         
         

   3. Intent And Purpose Of The Board

   
   

   1. The as-built dock insures maximum benefit and use of sovereign submerged lands for all citizens of Florida. The dock does not prevent the continued enjoyment of traditional uses of the lagoon by the public including navigation, fishing, and swimming.

      
      

   2. The as-built dock extends into the lagoon only as far as necessary. 2/ The as-built dock does not constitute a navigational hazard.

      
      

   3. The as-built dock provides maximum protection for the management and use of sovereign submerged lands including public recreation and fish and wildlife propagation and management. Hubbard provided a conservation easement along the majority of her shoreline. The easement is being well maintained.

   4. Issuance of the consent of use was coordinated with the Department's regulatory staff. The as-built dock minimized or eliminated the cutting, removal, and destruction of wetland vegetation. The as-built dock will not adversely impact manatees or their habitat.

      
      

   5. The as-built dock aids in the implementation of the State Lands Management Plan. It is consistent with the state's overall management plan for the management of all sovereign lands. The as-built dock is consistent with the Board's specific standards and criteria for siting docking facilities. 3/

      
      

   6. The consent of use contains terms, conditions, and restrictions sufficient to protect and manage sovereign lands. The consent of use contains general conditions established by the Department pursuant to Chapter 253, Florida Statutes, 4/ and Rule 18-21.

      
      

   7. The as-built dock is a water dependent facility. It is not enclosed or climatized for human habitation. The primary purpose of the dock is to moor a vessel. Secondary uses include fishing and recreational activities such as swimming and sun bathing. 5/

      
      

   8. The primary purpose and secondary uses for the as-built dock are consistent with the Board's stated goal that all sovereign lands are single use lands which should be managed for traditional recreational uses such as fishing, boating, and swimming. The dock provides ingress and egress to the lagoon and provides a safe place to moor a boat.

      
      

   9. No significant adverse impacts will result from Hubbard's use of sovereign lands and associated resources, including fish and wildlife habitat and endangered and threatened species. A conservation easement along a majority of the Hubbard shoreline protects existing resources beyond the area of the dock.

      
      

   10. The as-built dock was designed and constructed to minimize or eliminate cutting, removal, and destruction of wetland vegetation. 6/ No dredging of sovereign lands was required to construct the as-built dock.

       
       

   11. The as-built dock protects the riparian rights of adjacent property owners. The as-built dock meets applicable setback requirements.

       
       

       CONCLUSIONS OF LAW

       
       

   12. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto. The parties were duly noticed for the formal hearing.

   
   

3. Burden Of Proof

   
   

   1. The applicant carries the ultimate burden of proof throughout this proceeding. Hubbard must show by a preponderance of the evidence that she is entitled to the permit and consent of use. Department of Transportation v.

      J.W.C. Co., Inc., 396 So. 2d 778, 787 (Fla. 1st DCA 1981).

      
      

   2. For the permit, Hubbard must make a prima facie showing which provides reasonable assurances that the as-built dock: (a) will not adversely affect water quality; (b) is clearly in the public interest; and (c) will not cause adverse cumulative or secondary impacts. Sections 403.918(1) and (2). If the applicant makes a prima facie showing of reasonable assurances, the burden

      shifts to Petitioner to go forward with contrary evidence that proves the allegations in the petition for formal hearing. J.W.C., 396 So.2d at 789. The permit can not be denied unless Petitioner presents contrary evidence of equivalent value. Id.

      
      

   3. For the consent of use, the applicant has the ultimate burden of proof. The applicant must show by a preponderance of the evidence that she is entitled to the consent of use. Id.

   
   

4. The Permit

1. The parties stipulated that the as-built dock will not adversely affect water quality within the meaning of Section 403.918(1). In determining whether the as-built dock is clearly in the public interest, Section 403.918(2)(a) requires the following seven criteria to be balanced:

   
   

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

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

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

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

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

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

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

      
      

2. The parties stipulated: that the as-built dock is of a permanent nature, within the meaning of Section 403.918(2)(a) 5.; and that it will not violate the criteria in Section 403.918(2)(a) 6. The parties further stipulated that the as- built dock will not adversely affect the flow of water or cause harmful erosion or shoaling within the meaning of Section 403.918(2)(a) 3.

   
   

3. The as-built dock does not adversely affect either navigation or the public health, safety, or welfare within the meaning of Sections 403.918(2)(a)

1. and 1., respectively. Boaters are required to travel at idle speed in the lagoon. There is approximately 160 feet of open water, from the edge of the dock across the lagoon, in which to navigate. The center of the navigation channel is 40 feet from the edge of the dock.

   
   

   1. Boaters traveling between Hubbard's shoreline and the edge of the dock are able to see the dock in sufficient time to steer around it. The applicant has installed devices that make the dock visible at night.

   2. The as-built dock does not adversely affect the property of others. It does not diminish ingress or egress to and from the property of adjacent property owners and does not diminish the full use and enjoyment of their property.

      
      

   3. The as-built dock will not adversely affect the conservation of fish and wildlife, including endangered or threatened species within the meaning of Section 403.918(2)(a) 2. Fish and wildlife in the area other than manatees are primarily transitory.

      
      

   4. The closest manatee sanctuaries are 2,000 feet from the project. The project does not cause concern for manatees.

      
      

   5. The as-built dock does not adversely affect fishing, recreational value, or marine productivity in the area within the meaning of Section 403.918(2)(a) 4. The primary affect of the dock is shading. Shading from the dock is minimal and will not adversely affect sea grass beds in the area. Shading is beneficial to some types of fish in the area.

      
      

   6. The as-built dock will not adversely affect the current condition and relative value of functions being performed in the area within the meaning of Section 403.918(2)(a) 7. Any lost wetland functions are replaced through the mitigation plan. Water quality benefits are provided by the retaining wall. Permit conditions are adequate to prevent potential adverse impacts.

      
      

   7. The as-built dock does not create any adverse secondary impacts. Permit conditions are adequate to prohibit secondary impacts including "live- aboards", fueling facilities, and fish cleaning facilities.

      
      

   8. The as-built dock does not create any adverse cumulative impacts. The remainder of the applicant's shoreline and wetlands are located within a permanent conservation easement which precludes the construction of additional docks on the applicant's property.

      
      

   9. Any impacts that have occurred from the dock are minimal and are compensated for in the mitigation plan. The project creates a permanent conservation easement over 400 feet of shoreline and wetlands, thereby preserving fish and wildlife habitat. Docking a boat in water that is deeper than water at the shoreline prevents prop damage to shoreline areas. The retaining wall provides some water quality benefit.

      
      

   10. The as-built dock, existing docks, and reasonably anticipated future docks do not create any adverse cumulative impacts. Major portions of the area are being preserved through public acquisition. Some docks in the area are being removed from use.

       
       

   11. Petitioner alleged that the as-built dock violates the Citrus County Manatee Protection Plan. As a matter of law, however, the Department has no authority to deny a permit application on the basis of local restrictions. The denial or issuance of a permit must be based upon the Department's standards and criteria. Taylor v. Cedar Key Special Water & Sewerage District, 590 So.2d 481 (Fla. 1st DCA 1991); Council of the Lower Keys v. Charley Toppino & Sons, Inc.,

429 So.2d 67, 68 (Fla. 3d DCA 1983). No finding is made regarding Petitioner's allegation that the as-built dock violates local restrictions.

1. The Consent Of Use

   
   

   1. The as-built dock is constructed on sovereign submerged lands. Use of sovereign submerged lands requires approval from the Department. Section 253.77(1).

      
      

   2. The type of approval required for use of sovereign submerged land is prescribed in Rule 18-21.005. The as-built dock requires a consent of use. Rule 18-21.005(1)(a).

      
      

   3. The criteria for issuing a consent of use are set forth in Rule 18-

      21.004. The only disputed criteria are: whether the as-built dock is a water dependent activity, within the meaning of Rule 18-21.004(1)(d); whether the activity has an adverse impact on the natural resources of the state, within the meaning of Rule 18-21.004(2); and whether the activity interferes with the riparian rights of adjacent land owners within the meaning of Rule 18-21.004(3).

      
      

   4. The as-built dock does not adversely affect the natural resources of the state within the meaning of Rule 18-21.004(2). See, paras. 53-66, supra. Nor does the dock interfere with the riparian land owners within the meaning of Rule 18-21.004(3). See, para. 57, supra.

      
      

   5. The as-built dock is a water dependent activity within the meaning of Rule 18-21.003(56). The definition of a water dependent activity includes one which requires direct access to sovereign submerged lands for recreation. The purpose of the as- built dock is for recreation.

      
      

   6. The Department provided adequate explication for its non-rule policy that distinguishes water dependent activities from other activities. The dock is not enclosed or climatized for human habitation. The primary purpose of the dock is to moor a vessel. Secondary uses include fishing and recreational activities such as swimming and sun bathing.

      
      

2. Attorney Fees

73. The request in Petitioner's PRO for attorney fees is denied. Hubbard showed by a preponderance of the evidence that she is entitled to a permit and consent of use. That evidence was credible, persuasive, and substantial. The contrary evidence submitted by Petitioner was, at best, minimal.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order granting Hubbard's

application for a permit and consent of use, approving the consent order entered into between the Department and Hubbard, and denying Petitioner's request for attorney fees.

RECOMMENDED this 31st day of May, 1995, in Tallahassee, Florida.

DANIEL MANRY

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 31st day of May, 1995.

ENDNOTES

1/ All references to rules are to rules in the Florida Administrative Code published as of the date of this Recommended Order.

2/ The as-built dock extends only to a depth of three feet rather than the four foot depth allowed by applicable rules. The dock extends across only 19 percent of the lagoon.

3/ The dock preempts less than 1,000 square feet of sovereign land area for each 100 linear feet of shoreline owned by Hubbard. The dock meets the 25 foot setback requirement. The dock extends only to a depth of three feet, and it extends across only 19 percent of the width of the lagoon. The primary purpose of the dock is to moor a vessel.

4/ All chapter and section references are to Florida Statutes (1993) unless otherwise stated.

5/ A non-water dependent dock is one for which the vertical area between the framing of the roof and the upper surface of the walkway of the dock is enclosed on all four sides and/or is climatized for human habitation.

6/ Hydrilla is the predominant submerged plant in the area. It is an exotic, non-native species. The as-built dock will have no significant adverse impact on the growth of hydrilla.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1499

Petitioner's Proposed Findings Of Fact. 1.-5. Accepted in substance

1. Rejected as conclusion of law and legal argument

2. Rejected as not supported by credible and persuasive evidence

8.-9. Rejected as recited testimony and as not supported by a preponderance of evidence

10.-12. Rejected as not supported by credible and persuasive evidence

13. Rejected as recited testimony

14.-15. Rejected as irrelevant and immaterial

16.-18. Rejected as not supported by credible and persuasive evidence or as irrelevant and immaterial

1. Rejected as recited testimony

2. Accepted in substance 21.-22. Rejected as immaterial

23.-28. Findings concerning activities other than water dependent activities are rejected as not supported by credible and persuasive evidence. Findings concerning the Citrus County Manatee Plan are rejected as irrelevant and immaterial. See para. 57 supra. Other findings are rejected as conclusions of law and as irrelevant and immaterial.

29. Rejected as conclusion of law 30.-32. Accepted in substance

33.-38. Rejected as not supported by credible and persuasive evidence and as a conclusions of law

39.-41. Rejected as an issue of fact that is not disputed by the parties

42. Rejected as recited testimony

42. Rejected as an issue of fact that is not disputed by the parties

Respondents' Proposed Findings Of Fact.

Respondents' proposed findings of fact are accepted in this Recommended Order.

COPIES FURNISHED:

Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Kenneth Plante, Esquire General Counsel

Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

John H. Rains, III, Esquire Ammis, Mitchell, Cockey, Edwards

& Roehn, P.A.

Suite 2100

One Tampa City Center Building Tampa, Florida 33601

Keith Hetrick, Esquire Evelyn Davis Golden, Esquire

M.B. Adelson, Esquire Douglas MacLaughlin, Esquire

Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Emily G. Pierce, Esquire Marcia Penman Parker, Esquire

Roger, Towers, Bailey, Jones & Gay 1301 Riverplace Boulevard, Suite 1500

Jacksonville, Florida 32207

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HELEN C. SUTTON, )

)

Petitioner, )

)

vs. ) CASE NOS. 93-1499

) 93-6507

TANA HUBBARD and STATE OF FLORIDA ) 94-6501

DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondent. )

)

CORRECTED ORDER

The Recommended Order entered on May 31, 1995, is corrected nunc pro tunc to include all three cases that were consolidated prusuant to the agreement of the parties.

DONE and ORDERED this 1st day of June, 1995.

DANIEL S. MANRY

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 1st day of June, 1995.

COPIES FURNISHED:

Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Kenneth Plante, Esquire General Counsel

Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

John H. Rains, III, Esquire Ammis, Mitchell, Cockey, Edwards

& Roehn, P.A.

Suite 2100

One Tampa City Center Building Tampa, Florida 33601

Keith Hetrick, Esquire Evelyn Davis Golden, Esquire

1. Adelson, Esquire Douglas MacLaughlin, Esquire

   Department of Environmental Protection 2600 Blair Stone Road

   Tallahassee, Florida 32399-2400

   
   

   Emily G. Pierce, Esquire Marcia Penman Parker, Esquire

   Roger, Towers, Bailey, Jones & Gay 1301 Riverplace Boulevard, Suite 1500

   Jacksonville, Florida 32207

   ================================================================= AGENCY FINAL ORDER

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

   
   

   STATE OF FLORIDA

   DEPARTMENT OF ENVIRONMENTAL PROTECTION

   
   

   HELEN C. SUTTON,

   
   

   Petitioner, OGC Case Nos. 92-2226 93-2807

   vs. 94-3663

   TANA HUBBARD and DOAH Case Nos. 93-1499 DEPARTMENT OF ENVIRONMENTAL 93-6507

   PROTECTION, 94-6501

   
   

   Respondents.

   /

   
   

   FINAL ORDER

   
   

   On May 31, 1995, a Hearing Officer with the Division of Administrative Hearings (hereafter "DOAH"), submitted his Recommended Order to the Respondent, Department of Environmental Protection (hereafter "Department") 1/ Copies of the Recommended Order were simultaneously served on the Petitioner, Helen C. Sutton (hereafter "Petitioner"), and on the Co-Respondent, Tana Hubbard (hereafter "Hubbard"). A copy of the Recommended Order is attached hereto as Exhibit A.

   
   

   On June 12, 1995, Petitioner filed with the Department her Exceptions to the Recommended Order, Objection to Ex Parte communication with Agency Head and Request for Oral Argument. The Department filed its Response to Petitioner's Exceptions to Recommended Order and Request for Oral Argument on June 15, 1995. No response was filed on behalf of Hubbard. The matter is now before the Secretary of the Department for final agency action.

   
   

   Background

   
   

   Hubbard filed an application with the Department for a permit to construct a single family dock and related retaining wall in Citrus County, Florida. The project site is located adjacent to and in the waters of a lagoon off the King's Bay portion of Crystal River. King's Bay is classified as a man-altered Class III water body /2 and is designated an Outstanding Florida Water. /3

   
   

   The Department issued a preliminary Notice of Intent to Issue the requested permit on November 4, 1992. Petitioner filed a challenge to the permit on December 7, 1992, which was dismissed as untimely by the Department on February 19, 1993, with leave to amend. On December 10, 1992, the Department issued permit number 091923403 authorizing Hubbard to construct the dock and retaining wall project, subject to various restrictions and conditions set forth in the permit. Petitioner filed an amended petition challenging the project on March

   4, 1993, but Hubbard had constructed the dock and retaining wall between the time that the permit was issued and the time of Petitioner's filing of the amended petition.

   
   

   Hubbard subsequently notified the Department that the dock had not been constructed in compliance with the plans and specifications submitted to and approved by the Department. On September 14, 1993, /4 the Department entered into a Consent Order in OGC Case No. 93-2807 approving Hubbard's as-built dock structure. Petitioner then filed a petition challenging the propriety of the Consent Order.

   
   

   During this period of time, the issue of Hubbard's use of sovereign submerged lands was also raised. On September 2, 1994, the Department issued a Notice of Agency Statement that the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida ("Board of Trustees") claimed ownership of the submerged lands on which Hubbard's dock had been constructed. Hubbard then applied for a consent of use for the submerged lands underlying the dock facility, and the Department issued an after-the-fact consent of use on September 20, 1993. Petitioner subsequently filed a timely challenge to the consent of use and requested a formal administrative hearing.

   
   

   Pursuant to agreement of the parties, Petitioner's three administrative challenges to Hubbard's dock structure were consolidated by DOAH. A two part formal administrative hearing was held in these consolidated cases before DOAH Hearing Officer Daniel Manry ("Hearing Officer"). The first part of the hearing was held on March 8-9, 1994, in Crystal River, Florida. The second part of the hearing was held in Tallahassee, Florida, on March 27, 1995. Proposed recommended orders were timely filed by the parties after the completion of the formal hearing and the Hearing Officer's Recommended Order was entered on May 31, 1995.

   
   

   The Hearing Officer rejected all of Petitioner's claims and ruled that Hubbard's as-built dock structure complied with the applicable water quality standards for permitting and consent of use criteria. The Hearing Officer recommended that the Department enter a Final Order "granting Hubbard's application for a permit and consent of use, approving the consent order entered into between the Department and Hubbard, and denying Petitioner's request for attorney fees." (Rec. Order, p. 20)

   
   

   Ruling on Petitioner's Reguest for Oral Argument

   
   

   Petitioner's exceptions were accompanied by a Request for Oral Argument pursuant to Rule 62-103.200(3), Florida Administrative Code. These rule provisions state that the Secretary, in her discretion, may grant oral argument in support of a party's exceptions to a Recommended Order submitted by a DOAH hearing officer. The matters before the Secretary of the Department for consideration are adequately set forth in Petitioner's written exceptions and the Department's written response thereto and oral argument is not necessary to clarify the issues. Accordingly, Petitioner's Request for Oral Argument is denied.

   
   

   Rulings on Petitioner's Exceptions Preface

   
   

   Petitioner filed several exceptions taking issue with certain evidentiary rulings at the final hearing and the Hearing Officer's rulings in the Appendix to Recommended Order rejecting portions of her Proposed Findings of Fact.

   Petitioner also takes exception to the Hearing Officer's conclusion of law

   rejecting her request for award of attorney's fees. As a preface to the rulings on the Petitioner's exceptions, it is appropriate to comment on the standard of review imposed by law on an agency in reviewing recommended orders submitted by DOAH hearing officers.

   
   

   Under Section 120.57(1)(b)10, Florida Statutes, a reviewing agency may reject or modify the conclusions of law and interpretations of administrative rules contained in the recommended order of an administrative hearing officer. However, these statutory provisions mandate that an agency may not reject or modify findings of fact made by a 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 Freeze v. Dept. 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 reviewing a recommended order may not reweigh the evidence, resolve conflicts therein or judge the credibility of witnesses, as those are evidentiary matters within the province of the hearing officer as the trier of the facts. Heifetz v. Dept. of Business Reu1ation, 475 So.2d 1277 (Fla. 1st DCA 1985). Consequently, if the record of the DOAH proceedings discloses any competent, substantial evidence to support a finding of fact made by the hearing officer, the reviewing agency is bound by such finding. Bradley, supra, 1123.

   Exceptions 2A and 2B

   
   

   These two exceptions deal with Petitioner's unsuccessful attempt to introduce evidence at the DOAH final hearing relating to her claim that Hubbard's dock failed to comply with the Citrus County Manatee Protection Plan. 5/ The Hearing Officer sustained objections to this evidence at the final hearing and rejected Petitioner's Proposed Findings of Fact 25-27 dealing with the Citrus County Manatee Protective Plan on grounds of irrelevancy and immateriality. (App. to Rec. Order, p. 22) Factual issues susceptible of ordinary methods of proof that are not infused with agency policy considerations are within the perogative of the Hearing Officer, as the trier of the facts.

   See Heifetz, sura, 1281. There are no apparent overriding policy considerations presented here relating to these evidentiary rulings of the Hearing Officer that the issue of Hubbard's compliance with the Citrus County Manatee Protective Plan is irrelevant and immaterial in these consolidated cases.

   
   

   The Hearing Officer made a related ruling in Conclusion of Law 66 that the Department has no legal authority to deny a permit application based on local restrictions, such as the Citrus County Manatee Protective Plan. The Hearing Officer cited controlling appellate decisions of Florida holding that permits must be granted or denied by the Department based solely on the permitting criteria set forth in the governing pollution control statutes and the Department's implementing rules. See Taylor v. Cedar Key Sewerage District, 590 So.2d 481, 484 (Fla. 1st DCA 1991); Council of the Lower Keys v. Charley Toppino & Sons, Inc., 429 So.2d 67, 68 (Fla. 3d DCA 1983).

   
   

   The Hearing Officer's conclusion that the Department has no authority to deny a permit to construct a dock based on purported noncompliance with elements of Citrus County's Manatee Protection Plan is affirmed. The issues presented in these proceedings are whether Hubbard's existing dock complies with the state's applicable water quality standards and sovereign submerged lands consent of use criteria. The Hearing Officer found that the dock site is not a core area for manatees and that Hubbard's dock structure will not adversely impact manatees.

   /6 (Rec. Order, para. 16) Paragraph 17 Of the Recommended Order also contains a

   finding that both the U.S. Fish and Wildlife Service and the Department's Threatened and Endangered Species Section were contacted and that neither entity raised an objection to the as-built dock. These significant findings of the Hearing Officer relating to the absence of any adverse impact on manatees 6/ are amply supported by testimony presented at the DOAH final hearing. (Tr. I, Vol 1, 105-109; Tr. I Vol. 2, 190-198; Tr. I Vol. 3, 310-311).

   
   

   In view of the above, Petitioner's exceptions 2A and 2B are denied.

   
   

   Exception 2C

   
   

   In this exception, Petitioner contends that the Hearing Officer erred in rejecting her Proposed Findings of Fact 8, 9, and 10 dealing primarily with the claim that Hubbard's existing dock has adversely impacted existing native seagrass (widgeon grass) growing in the immediate vicinity. These proposed factual findings of Petitioner were rejected by the Hearing Officer on the ground of being recited testimony not supported by a preponderance of evidence. (App. to Rec. Order, p. 22)

   
   

   Petitioner's Proposed Findings of Fact 8, 9, and 10 are purportedly based on the expert testimony at the DOAH final hearing of biologist Robin Lewis. Mr. Lewis was called on behalf of Petitioner and testified of his personal observation of seagrass growing at the edge of Hubbard's dock. (Tr. I, Vol. 3, 374-376) Petitioner's exceptions, however, fail to cite any transcribed testimony of Mr. Lewis where he renders an expert opinion that Hubbard's existing dock had or would have a significant adverse impact on seagrass or other native aquatic vegetation. Mr. Lewis only testified that "the discovery of seagrass [at the dock site) would be something that would be significant in terms of assessing the potential adverse environmental effects of this type of project." (Tr. I, Vol. 3, 376) Furthermore, Lewis admitted on cross-examination that he did not know the density of the seagrass at the dock site and that he did not have any knowledge of the dominant vegetation of that area as of the date of the final hearing. (Tr. I, Vol. 3, 393-394)

   
   

   The Department's response cites testimony of Hubbard's expert witness, Quinton White, Jr. Mr. White, a biologist, was of the opinion that that the dock has no significant adverse impact on native aquatic vegetation in the area and that any adverse impact would be to hydrilla, an undesirable exotic species. (Tr. I, Vol. 2, 190-195) Hubbard also presented the expert testimony of biologist Michael Czerwinski. Mr. Czerwinski was of the opinion that the existing dock does not adversely affect the biological system of the site or area. (Tr. I, Vol. 3, 312) Mr. Czerwinski also testified that he visited the dock site the day before he appeared at the final hearing and did not observe any seagrass growing there at that time. (Tr. I, Vol. 3, 337)

   
   

   This exception of Petitioner involves the respective weight and credibility given by the Hearing Officer to the testimony of the expert witnesses as summarized above. The decision to accept one expert's testimony over that of another is a matter within the sound discretion of the Hearing Officer and cannot be altered absent a complete lack of competent substantial evidence of record from which the finding could be reasonably inferred. See Collier Medical Center v. State, Dept. of HRS, 446 So.2d 83, 85 (Fla. 1st DCA 1985); Florida Chapter of Sierra Club v. Orlando Utilities Commission, 436 So.2d 383, 389 (Fla. 5th DCA 1983).

   Based on the above, the Hearing Officer's ruling rejecting Petitioner's proposed findings relating to the impact of Hubbard's dock on native seagrass is determined to be supported by competent substantial evidence of record and is affirmed.

   
   

   Consequently, Petitioner's exception 2C is denied. Exception 2D

   Petitioner's Exception 2D challenges the propriety of the Hearing Officer's rejection in the Appendix to the Recommended Order of her proposed findings of fact 33-38 on grounds that they were "not supported by credible and persuasive evidence and as conclusions of law." (Appendix to Rec. Order, p. 22) These proposed factual findings relate to Petitioner's claim that a portion of Hubbard's dock facility consisting of an elevated sun deck/roof located directly over and providing covering for the boat slip was not constructed for "water dependent activities" within the context of Rules 18-21.003(56) and 18- 21.004(1)(d), Florida Administrative Code. Rule 18-21.004(1)(d) limits approval of activities on sovereignty lands to "water dependent activities." Rule 18- 21.003(56) defines a water dependent activity as "an activity which can only be conducted on, in, over, or adjacent to water areas because the activity requires direct access to the water body or sovereign submerged lands for transportation, recreation . .

   
   

   The Hearing Officer found in paragraphs 44 of the Recommended Order that Hubbard's as-built dock is a "water dependent facility" in that the primary use of the dock facility is to moor a vessel and secondary uses included recreational activities such as fishing, swimming and sun bathing. The Hearing Officer also found in paragraph 45 that the dock facility provides ingress and egress to the lagoon and that such primary and secondary uses were consistent with the Board of Trustees' goals for use of sovereign submerged lands.

   
   

   At the DOAH final hearing, on March 27, 1995, the Department presented the testimony of Todd VandeBerg, a planning manager for the Department's Southwest District. Mr. VandeBerg, a Department employee for over five years, supervised the review of Hubbard's after-the-fact request for consent of use of the subject sovereignty lands and had personally visited the dock site. (TR II, Vol. 1, 23- 24, 28) VandeBerg repeatedly testified that it was the position of Department staff 7/ that Hubbard's entire dock facility, including the elevated sun deck/roof portion, was a "water dependent" structure based on Department policy in effect at the time Hubbard's consent of use request was reviewed interpreting Chapter 18-21, Florida Administrative Code. (Tr. II, Vol. 1, 28-29, 55, 82-83;

   Tr. II, Vol. 2, 237, 242)

   
   

   The Department policy relied upon by Mr. VandeBerg is that dock structures having roofs that are not "completely closed in and/or climatized for human habitation" are deemed to be water dependent structures under Chapter 18-21, Florida Administrative Code. (TR II, Vol.1, 48-49) This policy was codified in 1992 into a Department document entitled "Bureau of Submerged Lands & Preserves Interim Policy for Single-Family Docks Outside Aquatic Preserves." (Dept.

   Composite Ex. 21)

   
   

   Petitioner did present expert testimony at the DOAH hearing from Robert Routa, who was involved in a supervisory capacity in the review of requests for approval of activities on sovereign submerged lands in the early 1970's for the former Department of Natural Resources. Mr. Routa was of the opinion that the elevated sun deck/roof portion of Hubbard's dock facility was not a water

   dependent structure. (Tr. II, Vol. 2, 156) Mr. Routa testified, however, that he had been in the private practice of law since 1978 and admitted that he had no authority to speak for the Department concerning its interpretation in the 1990's of the rules pertaining to review of requests for consent of use of sovereignty lands. (Tr. II, Vol. 2, 142, 161-162)

   
   

   The Recommended Order rejects Petitioner's challenge to Hubbard's as-built deck facility on the ground that it is not a "water dependent" structure under Chapter 18-21 of the Florida Administrative Code. Thus, the Hearing Officer obviously gave more weight and credence to the testimony of the Department's witness Todd VandeBerg than to the testimony of Petitioner's witness Robert Routa. As noted above, an agency reviewing a recommended order of a DOAH hearing officer may not reweigh the evidence, resolve conflicts therein or judge the credibility of witnesses. Heifetz v. Dept. of Business Regulation supra 475 So.2d at 1281. These are evidentiary matters within the sound discretion of the Hearing Officer as the trier of the facts.

   
   

   The Department staff interpretation of the rule definition of "water dependent activities" to include the construction of roofs over docks and boat slips that are not "completely closed in and/or climatized for human habitation" appears to be a reasonable attempt to distinguish between a structure whose primary function is habitation and one whose primary function is water transportation or recreation. The case law of Florida holds that great deference should be accorded to administrative interpretations of statutes and rules that the agency is required to enforce, and such administrative interpretations should not be overturned unless clearly erroneous. See, e. q., Falk v. Beard, 614 So.2d 1086, 1089 (Fla. 1993); Dept. of Env. Regulation v.

   Goldring, 477 So.2d 532, 534 (Fla. 1985); Harloff v. City of Sarasota, 575 So.2d 1324, 1327 (Fla. 2d DCA 1991); Reedy Creek Improvement Dist. v. Dept. of Env.

   Regulation, 486 So.2d 642, 648 (Fla. 1st DCA 1986).

   
   

   This Department written policy interpreting its rules relating to "water dependent activities" is not clearly erroneous and should not be overturned. In addition, the Hearing Officer's Findings of Fact 44 and 45 related to the "water dependent activity" issue are supported by competent substantial evidence of record and must be affirmed. Consequently, Petitioner's exception 2D is denied. Exception 2E

   
   

   This exception of Petitioner takes issue with the Hearing Officer's Conclusion of Law 73 denying a request for award of attorney's fees as set forth in Petitioner's Proposed Recommended Order. The denial of Petitioner's request for attorney's fees was based on the Hearing Officer's conclusions that "Hubbard showed by a preponderance of the evidence that she is entitled to a permit and consent of use" and that the "evidence was credible, persuasive, and substantial." (Rec. Order, para. 73)

   
   

   The question of whether a party intended to participate in a formal administrative proceeding for an "improper purpose" so as to warrant an award of attorney's fees to an adverse party has been judicially determined to be an issue of fact within the prerogative of a hearing officer, rather than a conclusion of law that may be freely rejected by the reviewing agency. See Burke v. Harbor Estates Associates, Inc., 591 So.2d 1034, 1037 (Fla. 1st DCA 1991). The court noted in the Burke opinion that the Department's predecessor agency, the Department of Environmental Regulation, claimed no special insight or expertise in determining whether a party participated in a formal administrative proceeding for an "improper purpose." Burke, supra, at 1037. No claim of such special insight or expertise has been made in these proceedings.

   In addition, the provisions of Section 120.59(6), Florida Statutes, only authorize an award of attorney's fees in a formal administrative proceeding to a nonagency "prevailing party." The Recommended Order of the Hearing Officer rejects all Petitioner's challenges to the construction of Hubbard's dock.

   Also, the Hearing Officer recommends that the Department approve the Consent Order entered into with Hubbard and grant the after-the-fact applications for a permit and consent of use for Hubbard's existing dock facility. This Final Order affirms all of the Hearing Officer's findings of fact and conclusions of law with one minor clerical correction and adopts the recommendations set forth in the Recommended Order. Thus, Petitioner is obviously not a "prevailing party" in these consolidated administrative proceedings within the purview of the statutory provisions of Section 120.59(6).

   
   

   Based on the above, Petitioner's exception 2E is denied.

   
   

   CONCLUSION

   
   

   The Department shares Petitioner's concerns for the protection of the manatee, which is an endangered species and a precious natural resource of this state. However, as discussed above, the Hearing Officer's findings and related conclusions that Hubbard's dock structure will not adversely affect manatees are supported by competent substantial evidence of record. In addition, even if Petitioner had established that Hubbard's dock structure did not comply with certain specifications of the Citrus County Manatee Protection Plan, the Department does not have the legal authority to deny the dock permit based solely on such a showing. The Florida courts have ruled that "[r]emedies apart from the permitting scheme are available" if Hubbard's dock should violate any mandatory requirements of Citrus County's Comprehensive Plan. Taylor v. Cedar Key Special Water and Sewerage District, supra, at 482.

   
   

   It is therefore ORDERED:

   
   

   1. The date of September 14, 1993, is substituted for the date of July 10, 1993, as set forth on unnumbered line 13 of the Preliminary Statement on page two of the Recommended Order.

      
      

   2. The Recommended Order of the Hearing Officer, as modified by the clerical correction in paragraph A above, is adopted and incorporated by reference herein.

      
      

   3. Permit number 091923403, proposed for issuance by the Department to Hubbard on November 4, 1992, is hereby ISSUED, subject to the conditions set forth in the permit, the matters set forth in the Consent Order described in paragraph D below, and the modifications described in the Hearing Officer's Finding of Fact No. 8 in the Recommended Order.

      
      

   4. The Consent Order between the Department and Hubbard in OGC Case No. 93-2807 dated September 14, 1993, is APPROVED.

      
      

   5. Hubbard's after-the-fact application for consent of use for the sovereign submerged lands underlying the dock structure is GRANTED.

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 13th day of July, 1995, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

VIRGINIA B. WETHERELL

Secretary

Marjory Stoneman Douglas Building 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

FILING AND ACKNOWLEDGMENT:

FILED, on this date, pursuant to Section 120.52, Florida Statutes, with the designated Department Clerk, receipt of which is

her acknowledged.

07/14/95

Kathy C. Carter

ENDNOTES

1/ On June 1, 1995, the Hearing Officer entered a "Corrected Order" wherein the initial Recommended Order was corrected nunc fro tunc to reflect the case numbers of all three consolidated cases.

2/ The designated uses for Class III surface waters are recreation and the propagation and maintenance of a healthy, well-balanced population of fish and wildlife. Rule 62-302.400(1), Florida Administrative Code. 3. Since the project site is adjacent to an Outstanding Florida Water as designated by Department rule, Hubbard has to provide reasonable assurances that the project will be clearly in the public interest under Section 373.414(1), Florida Statutes. The Hearing Officer found that Hubbard's dock and retaining wall has resulted in benefits to the public, including the 400 foot conservation easement given to the state and reduction of fertilizer and yard chemical runoff into the lagoon. These findings of the Hearing Officer in paragraphs 33 and 34 of the Recommended Order related to the public interest criteria were not discussed or even cited in Petitioner's exceptions and are, therefore, unchallenged on agency review.

4/ The last paragraph on page two of the Recommended Order erroneously recites July 30, 1993, as the date the Consent Order

5/ The Citrus County Manatee Protection Plan is a part of the Citrus County Comprehensive Plan.

6/ One of the statutory criteria to be considered by the Department in reviewing a permit application is whether the "activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats." See Section 373.414(1)(a) 2., Florida Statutes.

7/ Petitioner has placed considerable emphasis in these proceedings on the fact that one of VandeBerg's subordinates, Harry Michaels, raised some initial concerns in an internal memorandum as to whether the sun deck/roof portion of Hubbard's dock facility was consistent with a water dependent activity under the Department rules. Mr. Michaels testified in deposition that he had only been "involved in submerged lands authorizations for about five months at that time" and wasn't sure whether the flat roof complied with Department policy. (Pet.

Ex. 20, p. 16) Mr. Michael's initial concerns were obviously determined to be unfounded by his more experienced supervisor, Todd VandeBerg. In any event, it is a general rule of case law that agencies are not estopped through misstatements of law by agency employees. See, ., Cordes v. Dept. of Env.

Regulation, 582 So.2d 652, 655 (Fla. 1st DCA 1991).

CERTIFICATE OF SERVICE

I CERTIFY that a true copy of the foregoing was sent by U.S. Mail to: John M. Rains, III, Esquire

Ammis, Mitchell, Cockey, Edwards & Roehn, P.A.

1 Tampa City Ctr Ste 2100

201 N Franklin St Tampa Florida 33602

and

Emily G. Pierce, Esquire Marcia Penman Parker, Esquire

Roger, Towers, Bailey, Jones & Gay 1301 Gulf Life Dr. Ste 1500

Jacksonville Florida 32207 and by hand delivery to:

Daniel Manry Ann Cole, Clerk

Hearing Officer Division of Administrative Division of Administrative Hearings

Hearings The DeSoto Bldg.

The DeSoto Bldg. 1230 Apalachee Pkwy

1230 Apalachee Pkwy Tallahassee Florida 32399-1550

Tallahassee Florida 32399-1550

Kenneth Plante, Esquire Evelyn Davis Golden, Esquire

M.B. Adelson, Esquire

Department of Environmental Protection 3900 Commonwealth Building

Tallahassee Florida 32399-3000

on this 14th day of July, 1995.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

J. TERRELL WILLIAMS Assistant General Counsel

Marjory Stoneman Douglas Building 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Telephone: (904) 488-9314

Docket for Case No: 93-001499

Orders for Case No: 93-001499