STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PINE ISLAND PROPERTIES, LTD., )
)
Petitioner, )
)
vs. ) CASE NO. 93-2713
)
DEPARTMENT OF )
ENVIRONMENTAL PROTECTION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on January 24, 1994, in Fort Myers, Florida.
APPEARANCES
For Petitioner: Harry Blair, Esquire
BLAIR & BLAIR, P.A.
2138-40 Hoople Street
Fort Myers, Florida 33901
For Respondent: John L. Chaves, Esquire
Department of Environmental Protection 2600 Blair Stone Road
Tallahassee, Florida 32399-9730 STATEMENT OF THE ISSUE
Whether the application filed by the Petitioner for a permit to fill 0.78 acres of wetlands for residential construction should be approved.
PRELIMINARY STATEMENT
Pine Island Properties, Ltd. (Petitioner) proposes to place fill in 0.78 acres of wetlands to permit a residential development known as Pelican Inlet to be constructed. In August 1991, the Petitioner filed an application for a permit with the Department of Environmental Regulation, the predecessor agency to the Respondent Department of Environmental Protection (Department). In March 1992, the Department issued notice of intent to deny the permit. The Petitioner has challenged the Department's action.
At the hearing the Petitioner presented the testimony of four witnesses and had exhibits numbered 1-15, 55, 64, 71, 75, 79-80, 82-85, 87, 90, 92, 104, 108-
111, 113-114, 122-124, 126, and 128-129 admitted into evidence. The Department presented the testimony of one witness and had exhibits numbered 1-2 and 5-6 admitted into evidence.
The hearing transcript was filed on February 15, 1994. All parties filed proposed recommended orders. The proposed findings of fact are ruled upon either directly or indirectly as reflected in this Recommended Order, and in the Appendix which is attached and hereby made a part of this Recommended Order.
FINDINGS OF FACT
Pine Island Properties, Ltd., (Petitioner) owns a residential development project identified as "Pelican Inlet" located on Pine Island, Lee County, Florida. The Petitioner seeks a permit to fill 0.78 acres of wetlands to construct the project.
The Department of Environmental Protection (Department) is responsible for reviewing permit applications under Chapter 403, Florida Statutes and related administrative rules. The Department file number for this application is 362004755.
The Pelican Inlet project is located in Lee County, Florida, Sections 4 and 9, Township 45 South, Range 25 East. The project impact site is immediately adjacent to "Forty Acre Bay/Bay 36" (bay) which is a Class II Outstanding Florida Water and part of the Pine Island Sound Aquatic Preserve.
There are no other developments on the bay.
Access from Pelican Inlet to Pine Island Sound is via the bay. Pine Island Sound is a popularly used water body, with substantial fishing and recreational use.
The Pelican Inlet development fronts a man-made canal which runs generally east-west. The canal is between two to ten feet deep.
The Petitioner did not construct the canal. It appears that during the dredging of the canal, spoil was deposited along the canal banks, resulting in an upland area in the midst of the wetlands. The spoil is vegetated by Australian pine. The elevation of the property drops approximately 1.5 feet where the higher spoil abuts the wetlands.
The Petitioner owns only the north half of the canal. Other parties not involved in this application own the south half of the canal. According to the Petitioner, the south half owners are not interested in assisting in the Petitioner's project.
Extensive mangrove growth exists immediately north and south of the project impact area. Immediately along the banks of the canal are red, black, and white mangroves. At the east end of the canal is a dense growth of mature black mangroves. Further to the east lie undeveloped uplands vegetated with slash pine and saw palmetto.
Although there has been some trash dumping in the area, the mangroves to be impacted by the proposed development are part of a high quality, functioning, healthy, and productive wetlands system. The area currently provides broad water quality benefits and wildlife habitat.
The north part of the impacted wetlands area contained a dirt road. Exotic vegetation, including Brazilian pepper Australian pine and Melaleuca, has invaded the trail area. Away from the road, the wetlands are dominated by buttonwood, seashore dropseed, beach carpet, salt grass, needlerush, and leather fern.
The Western end of the canal connects to the bay. Water depths in the bay average approximately 1.5 feet deep, but vary significantly. The bay bottom is composed of fine organic mud. There is evidence of damage caused by boat propellers in some parts of the bay.
The bay is used by species of fish, snails, mollusks, crabs and birds and is regarded as a productive marine habitat.
Within the development, the Petitioner seeks to locate a total of 23 single family homes. Fourteen of the 23 homes will be located directly along the canal. Of these 14, eight will require placement of fill in the adjacent mangroves; two others are entirely within the mature mangrove wetlands. The remaining nine houses would be placed in the area east of the canal.
Within the wetlands and uplands portion of the property, the development will include the 23 houses, driveways, access roads, sewer treatment plant, spreader swale and retention area.
Subsequent to the filing of the application, the parties engaged in an extensive dialogue in an attempt to reach a resolution of the matter. The issues raised by the Department essentially centered on two general issues, minimization and mitigation of the wetlands lost through fill and resolution of the anticipated secondary impacts of the project.
The parties appear to have resolved concerns related to the mitigation of the wetlands lost and impacted by the fill. At the hearing, there was minimal evidence and testimony related to the wetlands mitigation issues. Based on the apparent lack of conflict related to the wetlands loss mitigation, this Recommended Order is directed towards the cumulative and secondary impacts of the project.
On August 21, 1991, the Petitioner filed an application for permit/water quality certification with the agency.
On October 28, 1991, the Department conducted a field appraisal of the project. Based on the appraisal, the Department determined that the project was unpermittable as proposed in the application.
On December 24, 1991, the Department forwarded to the Petitioner a copy of the site inspection report. In the report, the Department identifies a number of concerns related to the expected environmental impact of the project. Thereafter, the parties began an extensive dialogue regarding the project.
On March 12, 1992, the Department issued a Notice of Permit Denial. The parties continued to discuss mitigation, and several extensions to the deadline for filing an administrative hearing request were granted by the Department. There is no dispute regarding timeliness of the request for hearing.
The Notice of Permit Denial indicates that the Department's concerns center on the potential for turbidity-related water quality violations which could result from unstabilized fill, the adverse floristic impact caused by fill washout into adjacent wetlands, the loss of the filtering benefits provided via the filled wetlands and the adverse impact on wildlife habitat.
The Notice of Permit Denial further identifies concerns related to the cumulative and secondary impacts of the project. Such impacts include boat docks in the canal resulting in an increase in the intensity of boating activity in the Bay. The Notice also addresses the precedential impact of permitting this project as it relates to other properties similarly situated, specifically, the property on the south side of the Canal.
The expected increases in boat traffic will result in turbidity and damage to the bay bottom through prop dredging, in turn causing injury to the marine habitat's sea grasses and benthic organisms.
During the ongoing dialogue with the Department, the Petitioner submitted a mitigation plan. In the Department's letter of June 26, 1992, related to its review of the plan, the Department notes that the proposal failed to address the anticipated impact of boat users on the shallow bay adjacent to the canal. Paragraph #23 of the letter states as follows:
Please be advised that the submitted proposal does not adequately address the secondary impacts of the proposed development. There is still a high potential for boat use within the adjacent shallow bay which will significantly degrade this portion of the aquatic preserve, additional boating pressure could also result in requests for dredging a channel within this bay....Before a permit can be issued all of these impacts need to be addressed. One possible way to address these would be to provide easements over adjacent wetlands and the canal that specifically prohibit dock construction...and/or to fill in a portion of the canal to prevent large boats from utilizing the area.
In a letter of July 29, 1992 in response to the Department's earlier transmittal, the Petitioner stated:
Boat access to coastal waters of Lee is a very important aspect of this project, however only two of the twenty-four lots have direct private property access to the canal and these are
lots 1 and 18. Only lot 1 has both canal and natural water frontage.
The potential for secondary wetland impacts related to permitting of this project are real and are also a concern of the applicant.
As to the issue of boat docks, the Petitioner stated:
Pine Island Properties, Limited, the owner of the project, is not proposing to permit or construct any boat docks within the project boundary. Each lot owner must, if they wish to, make application through appropriate state and federal agencies for a boat dock.
As to the matter of the shallow adjacent bay, the Petitioner stated:
The existing water depths in the adjacent bay system already by itself mandates and places limits on access by large boats, ones with a deeper draft.
Local knowledge of both bottom topography as well as tidal conditions and times is necessary for one to travel through these back bay areas.
The applicant agrees to place reasonable size, i.e., draft, restrictions on boats allowed into
and out of the project. The draft limit restriction for boats would be 24 inches. In additional all boats with engines larger than 35 horsepower
would be required to have hydraulic motor/outdrive lifts capable of allowing adjustments in the
depth of the operation of the propeller.
The applicant also accepts responsibility of placing appropriate depth markers from the western end (exist) (sic) of the unnamed canal to the "between island" passage approximately 750 feet directly to the west.
Placement of markers would identify the preferred travel route and inform boaters, through placement of signs, that they are in an aquatic preserve
and caution them about damage to bottom of the bay if propellers are set to (sic) deep.
By Department letter of September 21, 1992, the Department noted continuing concerns with the impacts of the project. In relevant part, the letter states, "[T]he Department still lacks reasonable assurance that the project's impacts will be offset. Also, you have not yet demonstrated to the Department's satisfaction that the project will be clearly in the public interest."
The Department's September 21 letter addresses remaining questions about the wetlands fill area, as well as canal use restrictions. Specifically as to the canal issue, the letter states:
Your proposal to place a draft restriction of 24" on boats using the canal to protect adjacent waters which are 18" deep is not acceptable.
A deed restriction prohibiting property owners from using or mooring motorized vessels in the canal would be more acceptable....A conservation easement could also prohibit the construction
of docks and/or the mooring of motorized vessels on the shoreline by the present owners or by potential future owners such as a homeowners association.
Based on the Department's assertion that the shallow bay could not accommodate boat traffic related to the development, the Petitioner conducted a survey of existing water depths in the vicinity of the canal. In its October 28, 1992 letter in response to the Department, the Petitioner responded as follows:
In general there is sufficient water for shallow draft motor driven vessels, however local knowledge, proper tidal conditions and informed operators would be essential to a safe and
non-habitat damaging passage from the canal mouth to the deeper waters of Pine Island Sound.
Evidence of prop scars...provides a longlasting record of past damage to the turtle grass beds by (sic) without proper boat handling skills and knowledge.
Sizing of boat draft and the requirement that all boats possess hydraulically adjustable outboards units or if inboard drive units then the outdrives must be adjustable is a must.
During lower tidal phases, e.g., mean low water, water levels can be expected to drop another foot which would result in water depth ranges
of about 17 to 30 inches, definitly (sic) a problem for boats with a hull draft of 18 inches regardless of what angle the drive unit is positioned.
Placement of informational signs as well as placement of channel marks would reduce hull
and drive unit impacts to the adjacent bay bottom.
In concluding the October 28 letter, the Petitioner makes the following recommendations:
Recommendations for consideration:
Boats limited to hull drafts of 20 inches.
All boats required to have adjustable power units.
Channel markers required from the Pelican Inlet canal mouth through to a point midway between the islands and Cork Island. This is approximately 2,800 feet west of the canal mouth.
These markers would be spaced, approximately
150 feet apart, on-center,. (sic) Thus under southflorida's (sic) winter foggy conditions
or after dark ease of marker detection/direction would be a useful aid to navigation.
Informational signs should be installed at "entry points" such as the canal mouth, the between-island pass and between the island headlands. These should inform the boater of the environmental sensitivity, the shallow water
conditions, the existence of grass beds and requirement of a slow speed, "no wake" zones.
Monitoring of bentic (sic) habitats over the first five years would also determine if
the above conditions are effective at protecting the coastal habitats.
By Department letter of December 17, 1992, the Department again addressed continuing concern with the impact of the project. Paragraph 14 of the letter states:
Thank you for the water depth report. As the report states,"...local knowledge, proper tidal conditions and informed operators would be essential to a safe and non-habitat damaging passage from the canal mouth to the deeper waters of Pine Island Sound." Since it would
be extremely difficult to provide the Department with reasonable assurance that all three of
these conditions will be present during motorized vehicle operations originating on-site, other assurance that impacts will not occur and degrade the Outstanding Florida waterbody must be provided.
As previously stated, legally binding agreements regarding draft and other restrictions may be difficult to enforce. Monitoring of an activity's impacts is only useful if there is some recourse to eliminate or reduce any impacts revealed by monitoring.
The submitted report reinforces the Department's position that reasonable assurance, beyond that already proposed, must be provided that boat traffic originating from the project's canal will not adversely impact the adjacent shallow waters. Such assurance could include, but would not be limited to, a mnechanical or physical draft restrictor in the canal, an agreement
not to seek permits to expand the existing canal, and authorization from the Department of Natural Resources for the proposed channel markers and informational signs. Please note that additional assurance beyond these may also be required.
Paragraph 15 of the Department's December 17, letter states:
Although not proposed as part of this application, construction of boat docks in the canal is a secondary impact which could be reasonably expected to occur as a result of issuing a permit for the proposed activities. Please provide reasonable assurance that construction of docks
in the canal and subsequent mooring of boats will not contribute to a degradation of water quality below State water quality standards in the canal and in the adjacent waters.
By letter of February 1, 1993, the Petitioner responded to paragraph
14 of the Department's December 17 letter as follows:
The applicant does agree not to seek permits to expand the existing channel and will seek authorization from the Department of Natural Resources for the proposed channel markers and informational signs.
In a twenty page letter, dated July 29, 1992, also answering questions of the FDER, Kathleen Parker Greenwood, the applicant stated that he was in agreement as to the placement of restrictions on the draft of boats allowed into and out of the project. This draft limit was set at 24 inches. In addition boats having engines larger that 35 horsepower, would have to have a hydraulic motor/outdrive lift, this to allow adjustments in the depth of propeller operation when operating in or during low water conditions.
The applicant may accept the proposal of placement of a draft restrictor at the mouth
of the unnamed canal, however would like additional information regarding available designs. Are
there any floating types, ones that could be moored permanently at the mouth of the project canal, and rise and fall with the tide, similar in concept to the method used to moor floating docks, i.e., a collar/ring freely moving up and down on a stationary piling?
This would allow the setting of a uniform depth regardless of tidal or wind induced depth of water conditions.
The Petitioner responded to paragraph 15 of the Department's December
17 letter as follows:
The applicant also does not want to degrade existing water quality and agrees to implement both design determined as well as behavioral directing programs to insure that this does not happen.
The central issues are:
a.) Oil and gas leaks and spills.
b.) Leakage of the active chemicals found in anti-fouling bottom paints.
c.) "Wolmerized" substances placed in marine piling which, over time, leak into the water column.
d.) Shading of shoreline bottom communities due to the installation of docks with associated floating boats.
and
e.) Physical, one-time, impacts occurring during the installation of pilings and dolphines.
The applicant, wishing to minimize potential onetime (sic) as well as cumulative impacts proposes the following:
The applicant will attach to documents/lot sales contract a notice that clearly informs
the prospective land owner of his/her responsibilities regarding the use and storage, handing and disposal of hazardous wastes, especially boat fuel and oil.
This document will warn residents against the discharge overboard of bilge water known to contain fuel/oil mixtures. Each dock will display, in a prominent mannor (sic), a sign with essentially the same warning.
The Pelican Inlet property owner(s) will also develop, and have in place and operational, prior to any authorization for the construction of boad (sic) docks, an emergency response program designed to handle in-project fuel spells (sic). This program will include the storage of equipment suitable for emergency containment until, and if necessary, a local response can be made by the appropriate Lee County and/or state officials.
Boats will be lifted, when not actively in use, via davits or elevating hoist platforms completely out of the water.
This will minimize water/hull contact in the case of anti-fouling paints and bottom coatings.
Dock pilings and dolphines will utilize non-toxic structural components, wolmerized and other petroleum based substances will not be
allowed to come in contact with the water column. Such Structural members as concrete or PVC or other known non-toxic items will be utilized
for all vertical supports.
Dock access platforms/boardwalks will be minimized, this in order to reduce potential shading. Consideration will be given to the use of translucent "boards" now on the construction market, this again to further minimize shading.
By Department letter of February 15, 1993, the Department addressed continuing and additional concerns related to project impact. Paragraph 9 of the letter states:
Regarding the issue of boat access from the canal out to Pine Island Sound, it should be noted that [the Petitioner agent's] access study
was done at a time when the water elevation was provided as +1.91' NGVD. The mean high water elevation, as provided, is +1.47' NGVD. Thus is appears that at mean high water, there will be a little more than 5 inches less water that what was present during that study. The mean low water elevation provided is -1.2' NGVD which seems low. However, using this figure, at mean low water there will be 3' less water between the canal and the sound.
Using a more reasonable tidal range of approximately 1', there would still be a difference of almost 1.5' between the observed and the low water levels, yielding lowest depths of approximately 3" in segment 1, the unvegetated areas, 10" in segment 2, where turtle grass and shoal grass...exist within the "channel", and 24" or greater out in the sound (along the sampled channel).
The Department's own informal depth survey, taken during a full moon low tide, showed water depths of approximately 3" to 6" in segment
1 and 10" to 36" (in the remnant channel) along segment 2. Most importantly, many of the shallow areas in segment 2 showed dense seagrass
growth, especially out by the "island headlands", where no channel exists and where prop scarring of the grassbeds already appears to be a major problem. Also, the shallowest area, segment 1, where turbidity would be expected to occur
almost every time a boat went through until the channel was prop dredged, was observed to be a highly productive and diverse area, despite the fact that it is unvegetated.
Other concerns which this site visit brought up include the potential for increased erosion
of shorelines adjacent to the proposed channel, and disturbance of wading bird rookeries or roosting areas along the channel's path.
Reasonable assurance that boats crossing the areas between the canal and the sound will
not cause violations of water quality, including turbidity and loss of diversity, and loss of
non-mitigable wetland resources, seagrass beds, has not been provided. Without this, a permit may still not be issued for this project.
By response dated April 11, 1993, the Petitioner responded to the Department's December 17 letter. As to the conflicting high water calculations, the Petitioner offered a further refinement of the figures and noted:
Both of the above are relatively minor corrections and any reasonable person would still agree that water depths along the recommended boating channel corridor are, at best, minimal. Only one with local knowledge and possessing common boating skills and sense would be able to navigate the passage without disruption or damage to the bottom habitat.
As to the application of a 1' "tidal range," the Petitioner suggests that the Department meant to identify the figure as the range below mean sea level. Citing to 1993 tidal tables, the Petitioner recalculated the water depths and opined that the lowest depth in segment 1 would be 6.7", in segment 2 would be 21.1" and in segment 3 would be over 30". The Petitioner noted that the calculations did not account for neap or spring tides, periods of even lower water conditions.
As to the Department's informal depth survey showing water depths of approximately 3" to 6" in segment 1 and 10" to 36" (in the remnant channel) along segment 2, the response states "[t]hese value ranges and conclusion seem reasonable to the applicant. Only after a series of repeated depth measurements have been taken over a variety of tidal and weather conditions (e.g. wind speed and direction) would a more detailed analysis be available. "
As to the Department's statement concern for potential increased erosion of shorelines adjacent to the proposed channel, and disturbance of wading bird rookeries or roosting areas along the channel's path, the Petitioner responded as follows:
The applicant previously agreed to a mandatory "no wake, slow speed" zone condition within segments I, II, and III out past the western most headlands to a position due north of Cork Island.
Signs along the proposed boat corridor would notify boaters of this and other environmentally related restrictions.
Disturbances to in place bird rookeries during the nesting season are of concern in southwest Florida. Parents frightened off active nests do greatly decrease the success for fledging of subadult birds.
Generally rookeries occur on islands rather
than headlands, thus the applicant would committ (sic) to a vigerous (sic) environmental sensitivity education program directed towards project initiated boaters in order to gain citizen appreciation, support and consideration for island areas of nesting wading birds.
Part of the on-going monitoring that the applicant commits to would also track near-shore rookeries in the vacinity (sic) of the proposed boat traffic corridor.
As to the Department's statement that reasonable assurance that boats crossing the areas between the canal and the sound would not cause violations of water quality had not been provided, the Petitioner responded as follows:
The issue and standard, reasonable assurance,
is very difficult to meet, however the applicants proposed residential project design is sensitive to on-site and near shore environmental conditions in the following mannor (sic):
The applicant is aware that without full cooperation,, support, appreciation and participation by the future project resident boat operators there will defintly (sic) be negative impacts to the tidally related natural resource base.
The natural resource setting is the major selling point for prospective owners and its continued health and sustainability is a good business practice
Toward these ends the applicant clearly committs (sic) to:
The marking and maintaining of a path along which all boat traffic must follow when exiting or entering the near-shore boat corridor lane.
Placement and maintaining of a series of informational "No Wake, Slow Speed" signs along the required boat corridor out to just north of Cork Island.
A mandatory requirement stating that all resident owned boats, proposed to enter and exit the site will:
Be restricted to a maximum hull draft of 20 inches.
Will possess adjustable hydraulic motor/shaft outdrive lifts.
Predevelopment base-line and post development monitoring of the conditions and any changes,
of the benthic habitats along and adjacent (250' on either side of the centerline) to the proposed boat corridor. This monitoring,
with quarterly reports, will continue for five consecutive years.
By letter dated May 19, 1993, the Department replied in relevant part to the Petitioner's response as follows:
...The second issue is that of navigable access from the canal to Pine Island Sound. The one specific point to be made here is that a proposed draft restriction of 20" to cross an area as shallow as 6.7" (using your figures) at mean
low water is not acceptable as this would cause
scarring even when a motor was not in use.
More general concerns, as previously discussed, involve whether or not placement of no wake signs, deed restrictions requiring outboard
lift units and maximum keel drafts, and monitoring to document boating impacts on adjacent resources provide reasonable assurance that impacts will
not occur, and if they do occur, they can be offset. Currently, the Department's view is that only by strict legal (e.g., conservation easement) and physical (e.g., pilings at the end
of the canal) measures can impacts to the adjacent OFW resources be avoided or minimized.
If there is new information concerning this aspect of this project which demonstrates to the Department's satisfaction that there will not be impacts associated with boat traffic or that these impacts can be offset, then
please submit such, since this is not considered a closed issue. "
By letter dated June 2, 1993, the Petitioner responded to the Department's May 19 letter. Paragraph 2 of the response states:
Our client has agreed to put his half of the canal in a conservation easement without limiting the future construction of boat docks and the ability to obtain a permit for dredging maintenance of the canal. Also, he agreed to drive draft restricting pilings at the west
end of the canal. In order to do this, our client is trying to get in touch with the owner of the south half of the existing canal. The
construction of these pilings will depend on the adjacent lot owner's response. If required the "No Wake" sign will be installed. Deed restrictions requiring outboard lift units
and maximum keel drafts will be provided."
The adjacent lot owner is not cooperative with the Petitioner.
The evidence establishes that permitting of this project will lead to increased boat traffic in the shallow bay, resulting in prop scarring of the bay bottom, erosion of adjacent shoreline, and damage to the wildlife habitat provided therein.
The use of a draft restrictor appears to be integral to the Department and to the Petitioner's ability to protect the shallow bay from damage.
Although discussed frequently, the Petitioner provided no detailed draft restrictor design until immediately prior to the hearing. The draft restrictor would limit boat passage in or out of the canal mouth unless the water depth was sufficient to prevent harm to the bay bottom.
The greater evidence fails to establish that a draft restrictor placed at the opening to the canal into the shallow bay is sufficient to prevent damage to the bay habitat. Placement of a restrictor only at the mouth of the canal
provides no protection to the marine resource once boaters exit the canal and are in the bay. The proposed marking of a "channel" which is marginally sufficient to permit access to deeper waters, fails to protect the resource.
A draft restrictor at the canal mouth further provides no protection against damage caused by boaters returning from deeper waters who will be able to travel through the shallow bay before perhaps discovering at the canal mouth that the water is too shallow to permit passage over the restrictor. It is reasonable to assume at that point, the bay will have been damaged by the excessive draft. It is also reasonable to assume that the damage would be exacerbated by the boater who, unable to enter the canal, either exits the too shallow bay, or remains until the water rises sufficiently to permit passage over the restrictor.
The evidence fails to establish that it is possible to police the users of the bay to provide that due care is used to prevent bay damage. The Petitioner asserts that the bay is already being used and damaged by other boaters. Even if correct, this project must meet the applicable criteria to be permitted. As set forth herein, the criteria are not met.
Based on the evidence and on consideration and balancing of the following criteria, the project is not clearly in and is contrary to the public interest:
WHETHER THE PROJECT WILL ADVERSELY AFFECT THE PUBLIC HEALTH, SAFETY, OR WELFARE OR THE PROPERTY OF OTHERS--
The Department does not assert that the project will adversely affect the public health, safety, or welfare or the property of others.
WHETHER THE PROJECT WILL ADVERSELY AFFECT THE CONSERVATION OF FISH AND WILDLIFE, INCLUDING ENDANGERED OR THREATENED SPECIES, OR THEIR HABITATS--
The evidence establishes that the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats.
Pine Island Sound provides habitat for endangered species including manatees, roseate spoonbills, and wood storks. Additionally, bald eagles have been seen in the project site and Pine Island Sound. The direct loss of wetland habitat resulting from this project will adversely affect the conservation of such species. The Petitioner presented no credible evidence to the contrary.
The increased boat traffic which may reasonably be expected to result from award of the permit sought will cause damage to the shallow bay waters and result in harm to the health and function of the bay habitat.
WHETHER THE PROJECT WILL ADVERSELY AFFECT NAVIGATION OR THE FLOW OF WATER OR CAUSE HARMFUL EROSION OR SHOALING--
The Notice of Permit Denial suggests a likelihood of turbidity-related water quality violations which could result from unstabilized fill, the adverse floristic impact caused by fill washout into adjacent wetlands, the loss of the
filtering benefits provided via the filled wetlands and the adverse impact on wildlife habitat. The evidence establishes that the parties have resolved concerns related to the mitigation of the wetlands lost and impacted by the fill. The Department does not currently assert that the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling.
The greater weight of the evidence establishes that the project will increase travel through the shallow bay to adjacent waters by boaters residing in the project. The prop dredging which will occur in the shallow water will result in harmful erosion of the bay bottom.
WHETHER THE PROJECT WILL ADVERSELY AFFECT THE FISHING OR RECREATIONAL VALUES OR MARINE PRODUCTIVITY IN THE VICINITY OF THE PROJECT--
The project will likely result in an increase in the number of boaters utilizing the bay and adjacent waters. The turbidity caused by prop dredging in the bay will degrade the water quality and adversely affect the productivity of the impacted marine resource, in turn reducing the fishing values in the vicinity of the project. The Petitioner presented no credible evidence to the contrary.
WHETHER THE PROJECT WILL BE OF A TEMPORARY OR PERMANENT NATURE--
The project will cause a permanent alteration to the existing condition of the property and will cause a continuing adverse impact to the affected area.
WHETHER THE PROJECT WILL ADVERSELY AFFECT OR WILL ENHANCE SIGNIFICANT HISTORICAL AND ARCHAEOLOGICAL RESOURCES UNDER THE PROVISIONS OF S. 267.061--
The Department does not assert that this project will adversely affect or will enhance significant historical and archaeological resources.
THE CURRENT CONDITION AND RELATIVE VALUE OF FUNCTIONS BEING PERFORMED BY AREAS AFFECTED BY THE PROPOSED ACTIVITY--
The current condition and relative values of the functions being performed in the affected areas will be adversely affected by the granting of this application. The project will result in an adverse impact to and degradation of an Outstanding Florida Water. The Petitioner presented no credible evidence to the contrary.
The evidence establishes that adverse secondary and cumulative impacts will result from permitting this project. Aside from the adverse affect of increased boating related to residents of the development, it is reasonable to expect that similarly-situated applicants could seek permits under these circumstances, resulting in additional boating activity and related damage to an Outstanding Florida Waterbody.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57(1), Florida Statutes.
As the applicant for the permit, the Petitioner has the ultimate burden of proof in demonstrating entitlement to the permit sought. Department of Transportation v. J.W.C. Company, Inc. 396 So.2d 778 (Fla. 1st DCA 1981). In this case, the burden has not been met.
In order to receive a permit to dredge and fill in waters of the state, the Petitioner must provide the Department with reasonable assurance that water quality standards will not be violated. Section 403.918(1), Florida Statutes. The Department has, as directed in the statute, established water quality criteria for wetlands within its jurisdiction which give appropriate recognition to the water quality of such wetlands in their natural state.
Further, a permit may not be issued unless the applicant provides the Department with reasonable assurance that the project is not contrary to the public interest. For a project which significantly degrades or is within an Outstanding Florida Water, as provided by Department rule, the applicant must provide reasonable assurance that the project will be clearly in the public interest. Section 403.918(2), Florida Statutes. In this case, because there is an Outstanding Florida Water impacted by the project, the Petitioner must establish that the project is clearly in the public interest. The evidence fails to meet the standard.
As set forth in Section 403.918(2)(a), Florida Statutes, in determining whether a project is not contrary to public interest, or is clearly in the public interest, the Department shall consider and balance the following criteria:
Whether the project will adversely affect the public health, safety, or welfare or the property of others;
Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;
Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project;
Whether the project will be of a temporary or permanent nature;
Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and
The current condition and relative value of functions being performed by areas affected
by the proposed activity.
As set forth in the preceding Findings of Fact, the evidence establishes that because this project will adversely affect the conservation and habitat of fish and wildlife, including endangered or threatened species, will cause harmful erosion of the shallow bay bottom, will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project, and will cause a permanent adverse impact on the current condition and relative value of functions being performed by areas affected by the proposed activity, the proposed permit is contrary to public interest.
Pursuant to Section 403.919, Florida Statutes, in deciding whether to grant or deny a permit for an activity which will affect waters, the DEP shall consider cumulative or secondary impacts of the project. In this case, the cumulative or secondary impacts which must be addressed center on the boat traffic which may be reasonably anticipated to result from the construction of homes on the canal front. Further additional boating activity and related damage to the aquatic preserve could result from the permitting of similar developments for which applications may be filed subsequent to an award of the permit sought by the Petitioner in this case.
Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Protection enter a Final Order denying the application of Pine Island Properties, Ltd., for a water quality certification permit in DEP File No. 362004755.
DONE and ORDERED this 28th day of March, 1994, in Tallahassee, Florida.
WILLIAM F. QUATTLEBAUM
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 28th day of March, 1994.
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-2713
The following constitute rulings on proposed findings of facts submitted by the parties.
Petitioner
The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:
1. Rejected, unnecessary.
12. Rejected. Evidence is insufficient to determine whether use of bay by public is "regular."
Rejected. The map attached to the application identifies 23 homesites. The Notice of Permit Denial references 23 homesites. Petitioner's exhibit 92 is a set of drawings which indicate 24 homesites, however it is unclear as to why the lots were replatted.
Rejected as to reference to South Florida Water Management District, irrelevant.
Rejected, subordinate.
Rejected The greater weight of the evidence establishes that the project is contrary to public interest.
Rejected, argumentative, subordinate.
Rejected, irrelevant.
Rejected, the greater weight of the evidence establishes that this was the first detailed drawing of the draft restrictor.
32-33. Rejected, irrelevant as to whether project meets permitting criteria.
37-38. Rejected, unnecessary.
39-40. Rejected. The evidence fails to establish that filling in the canal is the "only solution" suggested by the Department.
42. Rejected as to assertion that the Department did not question the conclusion or accuracy of the Petitioner's water depth study, contrary to evidence including the Department's site visit. The conclusion to which the Department agreed is that "local knowledge, proper tidal conditions and informed operators would be essential to a safe and non-habitat damaging passage from the canal mouth to the deeper waters of Pine Island Sound."
Rejected, contrary to the greater weight of evidence.
Rejected, contrary to the greater weight of evidence. The Department noted in correspondence that monitoring would not protect the resource.
46-48. Rejected The easement has not been executed or recorded.
Rejected. Contrary to the greater weight of the evidence. Nothing in the correspondence indicates that all other issues have been resolved.
Rejected, immaterial.
56. Rejected, irrelevant. The easement has not been executed or recorded. 57-58. Rejected, immaterial.
60-61. Rejected. Contrary to the greater weight of the credible and persuasive evidence. The testimony of the cited witness is not credited.
62. Rejected, immaterial.
Respondent
The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:
15. Rejected, contrary to the greater weight of the evidence. There is no citation to record to support the recalculation.
23. Rejected, contrary to evidence which establishes that the Notice of Permit Denial was issued on March 12, 1992.
COPIES FURNISHED:
Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building
2600 Blair Stone Road Tallahassee, FL 32399-2400
Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Harry Blair, Esquire BLAIR & BLAIR, P.A.
2138-40 Hoople Street Fort Myers, Florida 33901
John L. Chaves, Esquire
Department of Environmental Protection 2600 Blair Stone Road
Tallahassee, Florida 32399-9730
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 ten 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
PINE ISLAND PROPERTIES, LTD.,
Petitioner,
OGC Case No. 92-0460
vs. DOAH Case No. 93-2713
DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Respondent.
/
FINAL ORDER
On March 28, 1994, a Hearing Officer from the Division of Administrative Hearings submitted his Recommended Order to the Department of Environmental Protection (Department) and to Petitioner, Pine Island Properties, Ltd. A copy
of the Recommended Order is attached as Exhibit A. In accordance with Florida Administrative Code Rule 17-103.200, the parties were allowed 15 days in which to file exceptions to the Recommended Order. Neither of the parties has submitted exceptions.
The Recommended Order has come before me as head of the Department for final agency action. Having considered the Recommended Order, the pleadings, and the other documents submitted in this case,
IT IS ORDERED:
The Recommended Order is adopted in its entirety. The application of Pine Island Properties, Ltd., for a permit (application No. 36-200475-5) to place fill in jurisdictional wetlands located on Pine Island, Lee County, Florida is hereby DENIED.
Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the clerk of the Department.
DONE AND ORDERED this 5th 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
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by U.S. Mail to:
Harry Blair, Esquire Blair & Blair, P.A. 2138-40 Hoople St
Ft Myers, Florida 33901
and by hand delivery to:
William F. Quattlebaum 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
John L. Chaves, Esquire
Department of Environmental Protection 2600 Blair Stone Rd
Tallahassee, Florida 32399-2400 on this 10th day of May, 1994.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
DAVID A. CROWLEY
Deputy General Counsel 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
Telephone: (904) 488-9314
| Issue Date | Proceedings |
|---|---|
| May 10, 1994 | Final Order filed. |
| Mar. 28, 1994 | Recommended Order sent out. CASE CLOSED. Hearing held January 24, 1994. |
| Mar. 09, 1994 | Proposed Recommended Order of Department of Environmental Protection filed. |
| Feb. 15, 1994 | (Petitioner) Notice of Filing; Transcript filed. |
| Feb. 10, 1994 | Petitioner`s Proposed Findings of Fact and Conclusions of Law filed. |
| Jan. 24, 1994 | CASE STATUS: Hearing Held. |
| Jan. 19, 1994 | Department of Environmental Protection Prehearing Statement filed. |
| Jan. 18, 1994 | (joint) Prehearing Stipulation filed. |
| Jan. 04, 1994 | Order Establishing Prehearing Procedure sent out. |
| Dec. 29, 1993 | Notice of Hearing sent out. (hearing set for 1/24/94; 1:00pm; Ft. Myers) |
| Dec. 20, 1993 | Petitioner`s Request for Hearing Date filed. |
| Nov. 15, 1993 | Petitioner`s Motion for Discovery filed. |
| Nov. 03, 1993 | Joint Status Report filed. |
| Oct. 25, 1993 | Letter to WFQ from Harry Blair (re: rescheduling of hearing) filed. |
| Sep. 21, 1993 | Order Granting Continuance sent out. (hearing date to be rescheduled at a later date; parties to file status report by 11/1/93) |
| Sep. 16, 1993 | Letter to WFQ from John L. Chaves (re: no Objections to continuances)filed. |
| Sep. 16, 1993 | (Petitioner) Notice of Appearance filed. |
| Sep. 15, 1993 | (Petitioner) Motion to Continue Hearing filed. |
| Jul. 28, 1993 | Order Establishing Prehearing Procedure sent out. |
| Jul. 28, 1993 | Notice of Hearing sent out. (hearing set for 9/23/93; 9:30am; Ft Myers) |
| Jun. 08, 1993 | DER`s Response to Initial Order; Notice of Appearance of Counsel for DER filed. |
| Jun. 03, 1993 | Ltr. to WFQ from I. K. Steuart re: Reply to Initial Order filed. |
| May 20, 1993 | Initial Order issued. |
| May 18, 1993 | Request for Assignment of Hearing Officer and Notice of Preservation of Record; Petition for Formal Administrative Hearing; Notice of Permit Denial filed. |
| Issue Date | Document | Summary |
|---|---|---|
| May 05, 1994 | Agency Final Order | |
| Mar. 28, 1994 | Recommended Order | Cumulative impact of additional boaters renders project in outstanding FL waters not clearly in the public interest. |
