STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SEA OATS IMPROVEMENT ASSOCIATION, INC.,)
)
Petitioner, )
)
vs. )
) CASE NO. 93-3997 CITY OF SANIBEL and DEPARTMENT OF )
ENVIRONMENTAL PROTECTION )
)
Respondents. )
)
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 December 6-7, 1993, in Fort Myers, Florida.
APPEARANCES
For Petitioner: Hartley Kleinberg
Post Office Box 31 Sanibel, Florida 33957
For Respondent Robert D. Pritt, Esquire City of Sanibel: 800 Dunlop Road
Sanibel, Florida 33957
For Respondent John Chaves, Esquire Department of Office of General Counsel Environmental Twin Towers Office Building Protection: 2600 Blair Stone Road
Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUES
Whether the application filed by the City of Sanibel for replacement of the Tarpon Bay Weir structure should be approved.
PRELIMINARY STATEMENT
Respondent City of Sanibel (Sanibel) proposes to replace the Tarpon Bay weir structure, and make related drainage alterations within the city.
Construction of the project will result in a loss of wetlands and requires permitting. In September of 1992, Sanibel filed an application with the Respondent Department of Environmental Protection (DEP), formerly the Department of Environmental Regulation. In April, 1993, the DEP issued notice of intent to issue the permit. Thereafter, Petitioner Sea Oats Improvement Association (Sea Oats) challenged the DEP's action.
Sea Oats presented the testimony of five witnesses and had exhibits numbered 1-2, 4-8, 10, 12, 18-19, 22, 26, 29 and 35 admitted into evidence. Sanibel presented the testimony of four witnesses and had exhibits numbered 1- 17, 19, 22-26, and 36-38 admitted into evidence. The DEP presented the testimony of one witness and had exhibits numbered 1-3 admitted into evidence.
No transcript of the hearing was filed. 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.
This Recommended Order is primarily directed to the weir portion of the project. There are no disputed material facts regarding the culvert replacement portion of the project. No objections were raised related to the culvert replacement. The issue at hearing was whether the new weir will adversely impact the property owners of Sea Oats.
FINDINGS OF FACT
On October 2, 1992, the City of Sanibel (Sanibel) applied to the Department of Environmental Regulation (DER) for a permit to replace an existing water control structure identified as the Tarpon Bay weir and to replace existing culverts on Sanibel-Captiva road at the Sanibel River crossing.
The Department of Environmental Protection (DEP) is the successor agency to the DER and has responsibility for reviewing permit applications under Chapter 403, Florida Statutes and related administrative rules.
Sea Oats is a platted and recorded residential subdivision located within the City of Sanibel, Florida, on Sanibel Island. The Sea Oats Improvement Association, Inc. is the organization representing the Sea Oats property owners. Sea Oats is within the area affected by the project impact. The Sanibel River comes within approximately 400 feet of Sea Oats property.
On April 9, 1993 the DEP issued its Notice of Intent to Issue the permit. The Intent to Issue was published in June, 1993. Sea Oats timely filed a petition for administrative hearing.
There are no procedural or jurisdictional matters at issue in this proceeding. Sea Oats challenged the project due to water quantity concerns. No water quality issues are addressed in this Recommended Order.
Sea Oats asserts that property values will be adversely impacted by construction and operation of the new weir. Such issues are outside the jurisdiction of this proceeding and accordingly have not been addressed in this Recommended Order.
The project site is located on the Sanibel River, Sanibel Island, Lee County, Section 26, Township 46 South, Range 22 East. The Sanibel River is a Class III water discharging into Tarpon Bay.
The actual weir site is within the J.N. "Ding" Darling National Wildlife Preserve, owned in major part by the U.S. Government and operated by the U.S. Fish and Wildlife Service..
The elevation at the center of Sanibel Island is lower than elevations along the edge, resulting in a land mass which can be described as "bowl- shaped." Flood waters remain captured in the "bowl" pending percolation through the soil or discharge through weirs.
The Tarpon Bay weir is the sole outlet on the island for the Tarpon Bay basin. The basin lies to the west of Tarpon Bay Road, to the north of Gulf Drive and to the south of Sanibel-Captiva Road.
Sanibel proposes to replace the existing weir at the site where an extension of the Sanibel River drains into Tarpon Bay and to replace culverts at the crossing of Sanibel-Captiva Road over the Sanibel River.
The purpose of the weir replacement project and control elevation modification is to improve flood control capability and to restore the Sanibel wetlands in the Tarpon Bay basin.
The project requires and has received permitting by the South Florida Water Management District (SFWMD). Because the project furthers several objectives of the SFWMD, the District is providing $250,000 towards the cost of the construction.
The impact area for construction of the proposed new culvert is approximately 75 feet by 55 feet. The culverts to be replaced are within Sanibel-Captiva road right-of-way at the crossing of the Sanibel River. The culvert improvement will speed the flow of water towards the new weir during peak flow events, but will otherwise not significantly impact water flow in the river. .
The existing weir is approximately 32 by 2 feet with a control elevation of +2.5 feet NGVD. The length of the weir at the weir crest is 7.84 feet. The weir has one manually controlled gate, 4.7 feet wide with a 1.5 foot opening depth, constituting an area of about seven square feet.
The existing weir structure is approximately 33 years old and was built for mosquito control purposes. The weir is undersized and unable to adequately discharge surface waters from a 25 year design storm event.
During a 25 year storm event, Sanibel flood levels presently reach elevations of +4.0-4.5 feet NGVD and remain at those levels for multiple days. The existing system is incapable of discharging water at sufficient rates to reduce the amount and duration of such flooding. Major roads are flooded at these water levels.
The existing inadequate discharge capacity raises significant public safety concerns. A severe rainfall event can exceed the poor discharge capacity of the existing weir, resulting in flooding and leaving major transportation routes impassable. In such a situation, necessary evacuation prior to a subsequent hurricane strike could be hindered, perhaps impossible.
Sea Oats properties currently experience a period of standing water during South Florida's rainy season. During a 25 year storm event, Sea Oats flood levels of +4.5 feet NGVD inundate house pads and driveways for substantial time periods.
Most, if not all, of the Sea Oats property lies within DEP jurisdictional wetlands. Application must be made to the DEP in order for construction or other alterations to such properties to be permitted. Where permits have been issued, conservation easements exist for the parts of the lots which are not built on. The easements prohibit grass lawns, construction, dredging, filling, removal of native species or any alteration to the easement areas.
The new proposed weir structure is approximately 125 by 100 feet with a control elevation of +3.2 feet NGVD.. The length of the weir at the weir crest is 140 feet. Four sluice gates, each approximately six by five feet (a total gate area of 120 feet) will discharge water in excess of ten times faster than the existing weir. The construction impact area for the proposed new weir is approximately 120 feet by 240 feet.
The new weir gates will be operated according to policy to be developed by the Sanibel City Council within 30 days after issuance of the permit.
The construction and operation of the new weir will result in greatly improved flood control. Release of water prior to predicted storm events, as well as water discharge during and after storm events, will be improved due to the increase discharge capability of the larger flood gates. In other words, flood waters will be discharged faster and in greater volume, reducing both peak flood stages and flood duration.
In a report prepared for the City of Sanibel titled "Assessment of Hydrological Impacts, Proposed Tarpon Bay Water Control Structure," the effect of the increased weir water control level on the Sea Oats subdivision is addressed as follows:
There are some subdivisions that are extremely low in elevation including Sea Oats, Gulf Pines and Belle Meade. Several yards in these subdivisions lie below elevation +3.0 Ft. NGVD and are already inundated under existing conditions for prolonged periods in the summer. The proposed weir modifications will result in some additional water in these areas during the summer wet season. These subdivisions, however, are designed to accommodate these conditions as improvements are raised well above natural ground and yards are left low and are allowed to pond.
There is no evidence that existing house pads or driveways in the Sea Oats subdivision will be adversely impacted by construction and operation of the new Tarpon Bay weir. The evidence establishes that all existing housepads and driveways exceed +3.2 feet NGVD.
There is no evidence that access to any existing housepads and driveways will be significantly impacted by the construction and operation of the new Tarpon Bay weir. One Sea Oats driveway has a low spot at +3.3 feet NGVD. The remaining housepads and driveways exceed +3.3 feet NGVD. Most are significantly above the +3.3 feet NGVD elevation. All finished floor elevations exceed +12 feet NGVD.
Many undeveloped Sea Oats properties are below the +3.2 feet NGVD water level. As has been and is currently required, new construction in the Sea Oats subdivision will continue to require permitting from the DEP.
Sea Oats has a package wastewater treatment plant. There is no evidence that the operation of the plant will be negatively impacted by increased water levels to any greater degree than is currently the case.
Although the operation of the new weir will extend the period of standing water in Sea Oats during the rainy season, the new weir will permit greater control over the surface water levels by reducing peak flood levels and reducing the duration of flood levels following major storm events, thereby providing greatly enhanced flood control.
Construction of the new weir will require excavation of 1.129 cubic yards waterward of mean high water resulting in the loss of 0.3 acres of mature mangrove wetlands.
Sanibel Island wetlands have been historically overdrained, resulting in loss of habitat and an invasion of exotic vegetation on the island.
Sanibel originally proposed to mitigate the adverse impact on wetlands by creating a like amount of DEP jurisdictional wetlands. Subsequent to numerous visits to the site by representatives of the DEP and Sanibel, it was determined that additional mitigation was required. A final mitigation plan was submitted to the DEP on March 24, 1993.
In addition to the mitigation first proposed in the application, Sanibel intends to provide mitigation in the form of wetlands enhancement and restoration through management of the water level at the Tarpon Bay weir.
The new weir will raise surface water levels upstream of the control structure. Approximately 670 acres of existing wetlands will be inundated by an additional 0.7 feet of water. About 400 acres, previously not inundated, will be inundated as a result of controlling water at an elevation of 3.2 NGVD.
It is Sanibel's goal to permit water levels to rise to +3.2 feet NGVD during the rainy season to accomplish the environmental purposes of the project.
In 1991, the City of Sanibel and the Sanibel-Captiva Conservation Foundation began a study of the impact of increased water levels on Schinus terebinthifolius, commonly identified as Brazilian Pepper. According to the study report, "Flooding as a Management Tool for Controlling Brazilian Pepper on Sanibel Island, Florida," waters maintained at the +3.2 feet NGVD level for 77 days mortally stresses Brazilian Pepper in the flooded area and results in extensive die-off of the exotics.
Sea Oats asserts that it is not necessary to maintain the water level at +3.2 feet NGVD to stress and kill the Brazilian Pepper. The "Flooding as a Management Tool" report offered some support for the Sea Oats position, stating that, as to mortally stressing the species, "the data give us some indication that somewhat lower levels for a shorter time would be as effective."
It is unnecessary to determine whether a lower water level would be sufficient to accomplish the environmental aspects of this project because the evidence fails to establish that the proposed +3.2 feet NGVD water level will cause adverse affects.
Sea Oats asserts that there are other methods by which Brazilian Pepper invasion may be controlled which do not require maintaining the water level at +3.2 feet NGVD. Although the evidence indicates that other methods may be utilized, there is no evidence such methods are superior to that proposed by Sanibel.
There is no evidence that any adverse cumulative impacts will result from permitting this project.
The evidence establishes that, based on consideration and balancing of the following criteria, the project is not contrary to public interest:
WHETHER THE PROJECT WILL ADVERSELY AFFECT THE PUBLIC HEALTH, SAFETY, OR WELFARE OR THE PROPERTY OF OTHERS--
The evidence establishes that the project will not adversely affect the public health, safety, or welfare or the property of others.
Sea Oats asserts that the project will adversely affect their property through flooding. The evidence fails to establish that the project will result in flooding. Although the maintenance of water levels at +3.2 feet NGVD at the Tarpon Bay weir will result in an extended hydroperiod and additional standing water in the Sea Oats neighborhood during the wet season, the evidence fails to establish that the Sea Oats driveways or housepads will be flooded.
Operation of the weir will result in greatly increased flood control and water management capabilities on the island. The ability to discharge flood waters faster and in greater volume will reducing both peak flood stages and flood duration. The ability to quickly discharge waters prior to predicted storm events will contribute to flood prevention. Such improvements are a benefit to public health.
Mosquito control efforts will be enhanced as larva-consuming fish return to wet areas. The most prevalent type of mosquito in the area, the salt marsh mosquito, deposits its larva on dry ground. A return to historic increased water levels will permit the feeding fish to reach the larva. Improved mosquito control is a benefit to public health.
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 not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats.
The maintenance of the +3.2 feet NGVD water level during the wet season will result in extensive die-off of the exotic species in the restored wetlands. As exotics are removed, native plant species return to typical growth patterns and re-vegetate the restored and enhanced wetlands.
Restoration and improvement of the Sanibel wetlands will result in increased habitat for fish and wildlife. Water fowl, including endangered wading birds such as White Ibis and Wood Storks, will return to the restored wetlands habitat.
WHETHER THE PROJECT WILL ADVERSELY AFFECT NAVIGATION OR THE FLOW OF WATER OR CAUSE HARMFUL EROSION OR SHOALING--
The evidence establishes that the project will not adversely affect navigation or the flow of water or cause harmful erosion or shoaling. The project will enhance Sanibel's ability to control water flow.
WHETHER THE PROJECT WILL ADVERSELY AFFECT THE FISHING OR RECREATIONAL VALUES OR MARINE PRODUCTIVITY IN THE VICINITY OF THE PROJECT--
The evidence establishes that the project will not adversely affect the fishing or recreational values or marine productivity in the vicinity of the project.
Restoration of the wetlands will eventually provide additional habitat in which juvenile fish may hatch and develop. As such fish mature and move into open waters, they will become available for harvest. Such fish provide food for larger fish and for other fish-eating animal species. The project will not adversely affect recreational values.
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.
WHETHER THE PROJECT WILL ADVERSELY AFFECT OR WILL ENHANCE SIGNIFICANT HISTORICAL AND ARCHAEOLOGICAL RESOURCES UNDER THE PROVISIONS OF S. 267.061--
There is no evidence 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 of the exiting wetlands is good, however, overdrainage had negatively affect some areas and has permitted substantial invasion by exotic species. Slower-growing native species are unable to compete with the exotic species and have slowly declined in the former wetlands. The restoration of historic water levels to the area will improve the current conditions and increase the functional values of affected areas.
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 City of Sanibel 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 been met.
In order to receive a permit to dredge and fill in waters of the state, Sanibel must provide the DEP with reasonable assurance that water quality standards will not be violated. Section 403.918(1), Florida Statutes. The DEP 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. The Petitioners have raised no water quality issues in this proceeding.
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, there are no Outstanding Florida Waters impacted by the project.
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 the project is not 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. There is no assertion that the DEP failed to appropriately consider such cumulative or secondary impacts as are relevant to this permit application. There is no evidence that any cumulative or secondary impacts will result from this project.
Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Protection enter a Final Order granting the City of Sanibel's application for a dredge and fill permit in DEP File No. 362199705.
DONE and ORDERED this 14th day of February, 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 14th day of February, 1994.
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-3997
The following constitute rulings on proposed findings of facts submitted by the parties.
Petitioner Sea Oats Improvement Association.
The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:
5-6. Rejected, contrary to greater weight of credible and persuasive evidence. Respondent City of Sanibel
The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:
16.d. Rejected. The evidence fails to establish that the "construction of a weir with a weir crest level of +3.2 feet NGVD will not of itself have any significant impact on water levels." Contrary to greater weight of credible and persuasive evidence.
16.h. Rejected, as to lack of any adverse affect on property of Sea Oats owners, contrary to greater weight of credible and persuasive evidence, However, the adverse affect is balanced by positive impact of project on flood control.
17.a. Rejected, contrary to greater weight of credible and persuasive evidence. A weir height of +3.2 feet NGVD is not "necessary" for the benefit of preservation. As to the Brazilian Pepper, the "Flooding as a Management Tool" report states that "somewhat lower levels for a shorter time would be as effective" in controlling peppers. However, the evidence establishes that the
+3.2 feet NGVD height would promote restoration and enhancement of the historic Sanibel wetlands.
18-20. Rejected, unnecessary.
Respondent Department of Environmental Protection
The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:
18. Rejected. The evidence fails to establish that "a weir with a weir crest of 3.2 feet will not have a significant impact on water levels." Contrary to greater weight of credible and persuasive evidence.
COPIES FURNISHED:
Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Hartley Kleinberg Post Office Box 31
Sanibel, Florida 33957
Robert D. Pritt, Esquire 800 Dunlop Road
Sanibel, Florida 33957
John Chaves, Esquire Office of General Counsel
Twin Towers Office Building 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 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.
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AGENCY FINAL ORDER
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STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
SEA OATS IMPROVEMENT ASSOCIATION, INC.,
Petitioner,
OGC Case No. 93-2413
vs. DOAH Case No. 93-3997
CITY OF SANIBEL and DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Respondents.
/
FINAL ORDER
On February 14, 1994, a Hearing Officer from the Division of Administrative Hearings (DOAH) submitted his Recommended Order to the Department of Environmental Protection, formerly the Department of Environmental Regulation, (Department) and to the parties. A copy of the Recommended Order is attached as Exhibit A. On February 28 Petitioners Sea Oats Improvement Association, Inc., (Sea Oats) filed exceptions to the Recommended Order. On or about March 7 the Applicant/Respondent, City of Sanibel, (Sanibel) filed a response to Sea Oat's exceptions. The matter thereupon came before the Secretary of the Department for final agency action.
BACKGROUND
On April 9, 1993, the Department gave notice of its intent to issue a dredge and fill permit to Sanibel for replacement of an existing water control structure on the Sanibel River, a Class III water body located on Sanibel Island in Lee County. The proposed permit also authorizes replacement of existing road culverts at the point where the Sanibel-Captiva Road crosses the Sanibel River. The culverts are not at issue in this proceeding.
The water control structure is known as the Tarpon Bay weir, and it is the sole outlet on the island for the Tarpon Bay basin. The structure is located within the J.N. "Ding" Darling National Wildlife Refuge at the site where an extension of the Sanibel River connects the basin to Tarpon Bay. The purposes of the project are to improve flood control capability in the area and to restore and enhance the Sanibel wetlands in the Tarpon Bay basin, which have suffered in recent years from overdrainage, loss of habitat, and invasion of exotic species, including Brazilian Pepper. The project is intended to replace
a 33-year-old control structure that was originally built for mosquito control purposes. The existing structure is severely inadequate for flood control at present levels of development on the island.
Among the significant features of the proposed project are the replacement of a small, manually controlled weir gate by four larger sluice gates which can be operated automatically or manually and which will be able to discharge water approximately ten times faster than the existing structure. The permit provides that the new weir gates will be operated according to policy to be developed by the Sanibel City Council within 30 days after issuance of the permit. As mitigation associated with the permit, Sanibel will create an area of jurisdictional wetlands equal in size to those impacted by construction of the project, with additional mitigation being provided in the form of wetlands enhancement and restoration through management of the water level at the Tarpon Bay weir.
Sea Oats is an organization representing homeowners in a residential subdivision of the same name. The subdivision is located within jurisdictional wetlands in the Tarpon Bay basin, approximately 400 feet from the Sanibel River. Sea Oats filed a timely challenge to the issuance of the permit, essentially objecting to a proposed modification of the control elevation of the existing weir crest from +2.5 feet NGVD to a new control elevation of +3.2 feet NGVD.
Sea Oats contended that its members' property would be adversely affected by flooding and increased standing water as a result of the change in weir crest elevation.
Following a hearing held December 6 and 7, 1993 in Fort Myers, the Hearing Officer issued his Recommended Order, recommending, among other things, that the permit application be granted. The Hearing Officer specifically found that the evidence failed to establish that the project would result in flooding on Sea Oats' property and that, although the new weir elevation "will result in an extended hydroperiod and additional standing water in the Sea Oats neighborhood during the wet season, the evidence fails to establish that the Sea Oats driveways or housepads will be flooded." (Recommended Order at 10) The Hearing Officer also found that standing water in portions of some of the yards in the Sea Oats neighborhood is an existing condition during parts of the rainy season, but that all existing housepads and driveways in the subdivision exceed +3.2 feet NGVD and all finished floor elevations exceed +12 feet NGVD. (-Recommended Order at 7) The Hearing Officer concluded that there would be no adverse impacts on the property of others within the meaning of subsection 403.918(2)(a)1., Florida Statutes, and that increased flood control capabilities would result in benefits to public health and safety. He also found that the project will result in improved mosquito control, and that restoration and improvement of the Sanibel wetlands will result in increased habitat for fish and wildlife, as well as extensive die-off of exotic species in the restored wetlands and replacement of those species by native plant species.
RULING ON EXCEPTIONS
Sea Oats has submitted four exceptions to the Recommended Order, all dealing with various aspects of findings of fact made by the Hearing Officer in connection with the proposed increase in the weir control elevation from +2.5 feet NGVD to +3.2 feet NGVD.
I note at the outset that Sea Oats has not provided a transcript of the proceedings before the Hearing Officer. Since all of Sea Oats' exceptions relate to findings of fact made by the Hearing Officer, it is appropriate to
comment on the constraints imposed on agency heads in reviewing findings of fact made by DOAH hearing officers in situations where parties seeking to challenge those findings of fact have not provided the agency head with a transcript of proceedings.
Under subsection 120.57(1)(b)10., Florida Statutes, an agency may reject or modify the conclusions of law and interpretations of administrative rules contained in a Recommended Order. However, the agency may not reject or modify findings of fact made by the hearing officer, unless a review of the complete record demonstrates that such findings were not based on competent, substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law. See, e.g., Freeze v. Department of Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990); Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987). The agency may not reweigh the evidence, resolve conflicts therein or judge the credibility of witnesses, as those are matters within the sole province of the hearing officer. Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985).
The case law construing subsection 120.57(1)(b), Florida Statutes, has consistently held that a reviewing agency should not reject the findings of fact of a DOAH hearing officer where the party disputing the findings of fact has failed to furnish-to the reviewing agency a complete transcript of the DOAH proceedings. See, e.g., Rabren v. Department of Professional Regulation, 568 So.2d 1283 (Fla. 1st DCA 1990); Florida Department of Corrections v. Bradley,
510 So.2d 1122 (Fla. 1st DCA 1987); Booker Creek Preservation, Inc. v. Department of Environmental Regulation, 415 So.2d 750 (Fla. 1st DCA 1982).
The Department's rules implementing subsection 120.57(1)(b), Florida Statutes, are even more explicit. Rule 17-103.200(1), Florida Administrative Code (F.A.C.), requires that "[a]ny exception disputing a finding of fact must be accompanied by a complete transcript of the hearing." The related provisions of Rule 17-103.205(3), F.A.C., direct that "[a] party filing [an] exception to any finding of fact of the hearing officer must file a complete transcript of the hearing with the exception." Also, the rules governing the recording of testimony at a DOAH final hearing expressly provide that "[a]t hearings during which the services of a court reporter have been retained, any party who wishes a written transcript of the testimony shall order the same at his own expense." Rule 60Q-2.023(3), F.A.C.
Finally, Sea Oats was provided personal notice of these requirements in the Department's Request for Assignment of Hearing Officer and Notice of Preservation of Record served July 19, 1993. This is the document used to transmit 120.57(1) petitions from the Department to DOAH, and it is the Department's standard practice to provide notice of the transcript requirement to all parties at the time a 120.57(1) petition is forwarded to DOAH.
Sea Oats' Exception No. 1
In this exception, Sea Oats argues that the project will adversely affect the property of others, contrary to the express findings and conclusions of the Hearing Officer, because lots and yards in Sea Oats subdivision "will be subjected to more water, over a more extensive area, for a longer period of time. Housepads and driveways may not be `significantly impacted', but the land adjacent to the driveways and pads will be impacted, reducing the available yard area . . .
Sea Oats also takes issue with the use of the word "several" in Finding of Fact No. 24, which quotes from a report prepared for the City of Sanibel entitled "Assessment of Hydrological Impacts, Proposed Tarpon Bay Water Control Structure":
Several yards in these subdivisions lie below elevation +3.0 Ft. NGVD and are already inundated under existing conditions for prolonged periods in the summer.
(Recommended Order at 7) Sea Oats points out that the Hearing Officer accepted its proposed finding of fact No. 2 in the Appendix to the Recommended Order, which stated that 40 of the lots in the Sea Oats subdivision are below elevation
+3.0 feet NGVD; Sea Oats then argues that "[f]orty lots, (12 with houses) are more than `several."'
First of all, in the absence of a transcript of proceedings before the Hearing Officer, I am unable to review the testimony relating to the precise effects that the proposed project will have on the existing problem of standing water in portions of the Sea Oats subdivision. If the Hearing Officer's findings were based on a resolution of conflicting testimony, as the remainder of Sea Oats' exceptions would appear to suggest, I would be without authority to disturb these findings even if a transcript had been provided, under the cases cited above. But in the absence of a transcript, I am unable to review this testimony at all. Sea Oats has not alleged any irregularities in the proceedings below or any other basis for a determination that those proceedings did not comply with the essential requirements of law, so there appears to be no statutory basis for overturning the Hearing Officer's findings of fact.
Second, Sea Oats' concerns regarding the use of the word several1" would appear to be explained by the difference between the terms "lot", commonly understood to mean a platted lot in a subdivision, and "yard", meaning that portion of a residentially developed lot not occupied by a house, driveway, or other structures. In any event, any possible error in this regard would be harmless because the multiple public interest benefits found by the Hearing Officer to result from the increased weir elevation outweigh the degree of possible inconvenience found by the Hearing Officer to affect the residences and undeveloped lots in question. See Harloff v. City of Sarasota, 575 So.2d 1324 (Fla. 2d DCA 1991); 1800 Atlantic Developers v. Department of Environmental Regulation, 552 So.2d 946 (Fla. 1st DCA 1989)(balancing of public interest factors is responsibility of the agency head, using findings of fact made by the hearing officer).
For the foregoing reasons, Sea Oats' first exception is denied. Sea Oats' Exception No. 2
In this exception, Sea Oats again argues that the project will adversely affect the property of others, and further argues that one of the benefits expected from the project, the killing or stressing of Brazilian Pepper in the affected wetlands, does not require a +3.2-foot level of water. Sea Oats maintains that Brazilian Pepper control can be effectively accomplished without raising the existing elevation of the weir crest. Sea Oats' second exception is denied for the reasons set forth in my rulings on Exception No. 1, and for the additional reason that the Recommended Order makes clear that killing or stressing Brazilian Pepper was not the primary reason for raising the control elevation to +3.2 feet NGVD. While this particular effect could arguably be achieved at somewhat lower elevations, the Hearing Officer found that overall
restoration and enhancement of the historic Sanibel wetlands would be promoted by raising the control elevation to +3.2-foot NGVD. (Recommended Order at 16) Sea Oats' Exception No. 3
In this exception, Sea Oats contends that the Hearing Officer improperly rejected its proposed finding of fact No. 5, which stated that a weir crest elevation of 3.2 feet NGVD is not required for flood control. Sea Oats also argues that the expert testimony of Mr. Tom Finley supports its assertion that a 2.7-foot weir will provide the same benefits as a 3.2-foot weir "without the many adverse effects upon the subdivisions located in the Tarpon Bay Pool area."
Again, it appears that Sea Oats is taking issue with findings of fact made by the Hearing Officer based on testimony presented at the hearing. Without a transcript of the hearing, as noted above, I am without authority to reverse those findings. Furthermore, it appears from the text of Sea Oats' exception that Sea Oats is primarily relying on Mr. Finley's testimony to support its assertion that an elevation of +2.7 feet NGVD would provide the same degree of flood control as an elevation of 3.2 feet NGVD. As noted above, the Hearing Officer found that the additional elevation was primarily for the purpose of enhancing and restoring degraded Sanibel wetlands. For these reasons, Sea Oats' third exception is denied.
Sea Oats' Exception No. 4
In its fourth exception, Sea Oats again argues that the project will adversely affect its members' property through flooding. Sea Oats relies on the testimony of two expert witnesses at the hearing who apparently testified in regard to diminished economic value of the property if the project were permitted as proposed. This exception is denied for the reasons contained in my rulings on the previous exceptions, as well as for the reason that the Hearing Officer properly concluded that issues relating to adverse effects on property values are outside the jurisdiction of this proceeding. (Recommended Order at
3) $ee Miller v. Department of Environmental Regulation, 504 So.2d 1325 (Fla. 1st DCA 1987)(Department not authorized by s. 403.918(2), F.S., to consider non-environmental impacts on property of others); Bowen v. Department of Environmental Regulation, 448 So.2d 566 (Fla. 2d DCA 1984), approved, 472 So.2d
460 (Fla. 1985)(inverse condemnation actions cannot be adjudicated by administrative boards or agencies); Old Port Cove Property Owners Association v. Department of Environmental Regulation, 9 F.A.L.R. 3821 (DER 1987)(non- environmental impacts on property of others, including alleged diminution in property values, not cognizable under s. 403.918(2)1., F.S.). Accordingly, Sea Oats' fourth exception is denied.
In view of the foregoing, it is ORDERED:
The Recommended Order of the Hearing Officer is adopted in its entirety and is incorporated herein by reference.
The application of the City of Sanibel for dredge and fill permit No. 362199705 is GRANTED, and the Department's South District Office is directed to issue the permit in accordance with the terms and conditions set forth in the April 9, 1993 Notice of Intent to Issue.
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 28th day of March, 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 sent by U.S. Mail to:
Hartley Kleinberg Robert D. Pritt, Esquire
P O Box 31 800 Dunlop Rd
Sanibel Florida 33957 Sanibel Florida 33957 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 Chaves, Esquire
Department of Environmental Protection 2600 Blair Stone Rd
Tallahassee Florida 32399-2400
this 29th day of March, 1994.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
DAVID A. CROWLEY
Deputy General Counsel
Twin Towers Office Building 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
Telephone: (904)488-9314
| Issue Date | Proceedings |
|---|---|
| Mar. 29, 1994 | Final Order filed. |
| Feb. 14, 1994 | Recommended Order sent out. CASE CLOSED. Hearing held December 6-7,1993. |
| Jan. 03, 1994 | Proposed Recommended Order of Department of Environmental Protection filed. |
| Dec. 30, 1993 | Sea Oats Improvement Association, Finding of Fact w/cover ltr filed. |
| Dec. 30, 1993 | (Petitioner) Sea Oats Summation filed. |
| Dec. 28, 1993 | Certificate of Service of City of Sanibel's Proposed Recommended Order filed. |
| Dec. 28, 1993 | City of Sanibel`s Proposed Recommended Order w/cover ltr filed. (From Robert D. Pritt) |
| Dec. 07, 1993 | CASE STATUS: Hearing Held. |
| Dec. 01, 1993 | (joint) Prehearing Stipulation filed. |
| Nov. 24, 1993 | (joint) Prehearing Stipulation w/cover ltr filed. |
| Nov. 23, 1993 | (Respondent) Notice of Response to Petitioner, Sea Oats Improvement Association S. Request for Production of Documents filed. |
| Nov. 17, 1993 | Notice of Service of Answers to Petitioner Sea Oats Improvement Association`s First Set of Interrogatories to Respondent, The City of Sanibel filed. |
| Nov. 10, 1993 | Order Granting Request for Acceptance of Qualified Representative sent out. |
| Nov. 10, 1993 | (Respondent) Response of City of Sanibel to the Response to An Order From the Addressee Concerning Representative filed. |
| Nov. 05, 1993 | (Petitioner) Response to an Order from the Addressee Concerning Representation by a Qualified Representative; Affidavit filed. |
| Nov. 01, 1993 | Sea Oats Improvement Association`s First Request for Production of Documents From Respondents, the City of Sanibel filed. |
| Oct. 25, 1993 | Order Concerning Representation By a Qualified Representative sent out. |
| Oct. 21, 1993 | (joint) Settlement Stipulation filed. |
| Oct. 18, 1993 | (Petitioner) Notice of Service of Interrogatories; Petitioner, Sea Oats Improvement Association First Set of Interrogatories to Respondent,the City of Sanibel filed. |
| Sep. 30, 1993 | Respondent, City of Sanibel`s First Request for Production of Documents From Petitioner, Gulf Pines Property Owners` Association filed. |
| Sep. 30, 1993 | Respondent, City of Sanibel`s First Request for Production of Documents From Petitioner, Sea Oats Improvement Association filed. |
| Sep. 27, 1993 | (Respondent) Notice of Service of Interrogatories filed. |
| Sep. 20, 1993 | Notice of Hearing sent out. (hearing set for December 6-7, 1993; 9:30am; Fort Meyers) |
| Sep. 20, 1993 | Order Establishing Prehearing Procedure sent out. |
| Sep. 02, 1993 | (Respondent) Motion to Expedite & Memorandum in Support filed. |
| Aug. 10, 1993 | Joint Response to Initial Order filed. |
| Jul. 28, 1993 | Initial Order issued. |
| Jul. 20, 1993 | Notice of Related Case and Motion to Consolidate by Respondent Department of Enviromental Protection (for 93-3997 & 93-3998); Request for Assignment of Hearing Officer and Notice of Preservation of Record; Agency Intent to Issue; Petition for Administrati |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 28, 1994 | Agency Final Order | |
| Feb. 14, 1994 | Recommended Order | Weir replacement does not violate public interest criteria. |
