STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAHILL PINES AND PALMS PROPERTY ) OWNERS ASSOCIATION, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 95-4377

) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this case on April 23, 1996, in Key West, Florida.

APPEARANCES

For Petitioner: David Paul Horan, Esquire

Horan, Horan, and Esquinaldo 601 Whitehead Street

Key West, Florida 33040-6549

For Respondent: Christine C. Stretesky, Esquire

Wayne Hrydziusko, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUES

Whether Petitioner's application for a permit to remove portions of two canal plugs in the Cahill Canal system should be denied on the basis of res judicata.

PRELIMINARY STATEMENT

On July 7, 1995, Respondent, Department of Environmental Protection (Department), denied Petitioner, Cahill Pines and Palms Property Owners Association, Inc.'s (Cahill), application for an environmental resource permit. Cahill requested an administrative hearing. The case was referred to the Division of Administrative Hearings for assignment to a hearing officer on August 31, 1995. The case was originally scheduled for final hearing on December 11, 1995. On December 4, 1995, the Department requested a continuance which was granted, and the case was rescheduled for April 23, 1996.

At the final hearing, Joint Exhibits 1-9 and 11 were admitted in evidence. Cahill called John Larkin, George T. Baragona, and Joan Tucker as its witnesses.

Petitioner's exhibits 1 and 2 were admitted in evidence. Petitioner's Exhibits 3-4 were proffered. The Department called Gregory T. O'Connell as its witness.

At the final hearing the parties agreed to file proposed recommended orders within thirty days after the filing of the transcript. The transcript was filed on May 30, 1996. The Respondent filed its proposed recommended order on July 1, 1996. The Petitioner filed its proposed recommended order on July 23, 1996. Counsel for Petitioner has represented that Counsel for Respondent has no objection to the late filing of Petitioner's Proposed Recommended Order. The parties' findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. On July 19, 1991, the Petitioner, Cahill Pines and Palm Property Owners Association, Inc. (Cahill), filed a permit application with the Department of Environmental Resources, predecessor to the Respondent, Department of Environmental Protection (Department), for a permit to remove two earthen plugs in the Cahill canal system, located in Big Pine Key, Monroe County, Florida.

   The plugs were to be removed to a depth of -5.5 feet N.G.V.D.

   
   

2. Kenneth Echternacht, a hydrologist employed by the Department, had performed a hydrographic review of the proposed project and reduced his findings to writing in a memorandum dated June 25, 1993. Mr. Echternacht recommended that the project not be permitted.

   
   

3. On August 20, 1993, the Department issued a notice of its intent to deny Cahill's application to remove the plugs. The notice included six proposed changes to the project which would make the project permittable.

   
   

4. Cahill requested an administrative hearing on the Department's intent to deny the permit. On March 3 and 4, 1994, an administrative hearing was held on the issue of whether a permit should be issued. The hearing officer entered a recommended order on May 9, 1994, recommending that a final order be entered denying the permit. The Department issued a final order on June 8, 1994, adopting the recommended order of the hearing officer and denying the permit. See Cahill Pines and Palm Property Owners Association v. Department of Environmental Protection, 16 F.A.L.R. 2569 (DER June 8, 1994).

   
   

5. In the final order the Department found that the following findings of Mr. Echternacht were "scientifically sound and credible conclusions":

   
   

   The estimated flushing for the presently open portion of the waterway was calculated to be

   14.5 days. The flushing for the open section exceeds the 4 day flushing criterion by approx- imately 3.6 times. Clearly, the open portion poses a potential problem to the maintenance of acceptable water quality. For the presently closed sections of the waterway, the calculated flushing time was found to be 38.6 days. Again, this system would pose a significant potential for contamination to adjacent open waters if opened for use. The waters behind the barrier that presently appear to pose no problem would clearly become a repository for contaminants associated with boat usage. Because of the

   exceptionally long flushing time, contaminants would build up over time. Below standard water quality throughout the waterway would be expected and, associated with this, below standard water would be exported into adjacent clean water on each ebbing tide.

   
   

6. The final order also found the following facts:

   
   

   13. Neither the water in the open canals nor the water in the closed canals is presently of substandard quality.

   * * *

   1. Petitioner's plug removal project will also spur development in the Cahill subdivision and lead to an increase in boat traffic in the Cahill canal system, as well as in the adjacent waters of Pine Channel.

   2. Such activity will result in the discharge of additional contaminants in these waterways. As Echternacht stated in his June 25, 1993, memorandum that he sent to O'Connell, '[b]ecause of the [canal system's] exceptionally long flushing time, [these] contaminants would build up over time' and result in a significant degradation of the water quality of not only

      the Cahill canals, but also of Pine Channel, into which Cahill canals flow.

   3. This degradation of water quality will have an adverse effect on marine productivity and the conservation of fish and wildlife that now inhabit these waterways. Consequently, in the

      long run, the removal of the plugs will negatively impact fishing opportunities in the area.

   4. On the other hand, the project will have a beneficial effect on navigation and recreational boating and related activities. It will have no impact on historical and archaeological resources.

   
   

7. On April 10, 1995, Cahill submitted a permit application to the Department to remove portions of the two canal plugs. Cahill proposed to leave an island in the center of each plug. The islands would be stabilized with riprap, and mangrove seedlings would be planted in the riprap.

   
   

8. By letter dated April 21, 1995, the Department returned the April 10 permit application to Cahill along with the $500.00 processing fee. The Department advised Cahill that the application was not substantially different from the 1991 permit application which was denied by final order. The Department further advised that Cahill could resubmit the application and application fee if it wanted the permit to be processed but the Department would deny the application on the basis of res judicata.

   
   

9. On May 17, 1995, Cahill submitted a revised permit application along with the processing fee. A circulation culvert had been added to the project.

10. Ken Echternacht performed a hydrographic review of the proposed project. In a memorandum dated May 25, 1995, Mr. Echternacht recommended that the permit be denied for the following reasons:

    
    

    1. The proposed 24-inch culvert connection

       would not be expected to be visible hydraulically.

       A 24-inch diameter culvert, length 181 ft would be expected to have a friction factor several orders of magnitude greater than the adjacent canals. As such, water would not be expected to pass through the connector unless there were a sizeable head to drive the flow. No studies

       and/or supporting documentation have been provided to support the design in terms of the documenting the amplitude and repeatability of the flow driving force. Cutting holes through embankments do not necessarily result in flushing relief.

       
       

    2. As stated in 1, above, any and all proposed design modifications to the proposed waterway must be accompanied by adequate design justifi- cation based on hydrographic modeling supported by site specific data support. The culvert design proposed does not meet the above require- ment. The proposal is nothing new. In the hearing, ideas such as the above were suggested. However, as was stated in the hearing any and all such proposals must be supported by proper engineering study.

       
       

11. On July 7, 1995, the Department issued a Notice of Permit Denial, denying the May, 1995 permit application on the basis of res judicata, stating that the May 1995 permit was not substantially different from the 1991 permit application which had been denied and that no studies had been submitted by Cahill that would support that the use of the islands and culvert would increase the flushing rate to the four day flushing criterion established in the hearing on the 1991 permit application.

    
    

12. At the final hearing counsel for Cahill stated for the record that the use of the islands and the culvert would not increase the flushing rate to four days.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

14. The Department has denied Cahill's permit application on the basis of res judicata. As stated in Neidhart v. Pioneer Federal Savings and Loan Association, 498 So. 2d 594 (Fla. 2nd DCA 1986),

    
    

    That doctrine requires that the judgment reflect: (1) identity in the thing sued for;

    1. identity of the cause of action;

    2. identity of person and parties of the

    action; and (4) identity of the quality in

    the person for or against whom the claim is made.

    
    

    Id. at 596.

    
    

15. Res judicata is applicable in administrative proceedings. Metropolitan Dade County Board of County Commissioners v. Rockmart Corp., 231 So.2d 41 (Fla. 3rd DCA 1970). In Thomson v. Department of Environmental Regulation, 511 So.2d 989 (Fla. 1987), the Florida Supreme Court discussed the circumstances in which the doctrine of res judicata is applicable in administrative permitting cases.

    
    

    The proper rule in a case when a previous permit application has been denied is that res judicata will apply only if the second application is not supported by new facts, changed conditions, or additional submissions by the applicant.

    
    

    Id. at 991.

    
    

16. In the instant case, a final order was entered by the Department denying Cahill's 1991 application for a permit to remove two plugs in the Cahill canal systems. Cahill again seeks a permit from the Department to remove the same two plugs from the canals. In the latest application, Cahill seeks to remove portions of the plugs, to leave an island in the center of each plug and to construct a twenty-four inch concrete culvert connecting the main feeder canal with adjacent wetlands. Cahill admits that these changes in the design of the project will not increase the current flushing rate of 14.5 days to the four day criterion held to be the standard in the final order denying the 1991 application.

    
    

17. Cahill did not appeal the final order denying the 1991 application. It is trying to relitigate the facts that were determined in that hearing. Cahill's position is that because the current water quality has not been degraded over the years, the removal of the plugs should not result in a degradation of water quality in the future. Cahill ignores the finding in the

    final order on the 1991 application that although the existing water quality was not substandard the removal of the plugs would result in contamination over time from a combination of the increased development and boating traffic and the slow flushing rate in the canals. The final order discussed the history of the plugs, including a civil action in 1980 and the denial of a permit application in 1981. Thus, the final order did take into consideration the length of time that the canals had been in existence. The final order specifically held:

    
    

    Petitioner has failed to provide reasonable assurance that state water quality standards will not be violated as a result of the removal of the north and south plugs. Proof that the closed and open portions of the Cahill canal system presently meet water quality standards

    does not mean that they, and the receiving waters of Pine Channel, will not become so as a result of the increase in development and boating activities 'caused or enabled' by the removal

    of the plugs.

    16 FALR at 2586.

    
    

18. The 1995 permit application did not address the effect that the increase in boat traffic would have on the degradation of the water quality. Cahill admits that the addition of the islands and the culvert will not increase the flushing rate to four days which was found in the final order to be necessary to eliminate the potential contamination.

    
    

19. The doctrine of res judicata is applicable in the instant and the permit application should be denied on that basis.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Cahill Pines and Palms

Property Owners Association, Inc.'s application for a permit to remove two plugs separating the open and closed canal sections of the Cahill canal system, placing an island in the center of each plug, and adding a 24 inch culvert connection.

DONE AND ENTERED this 31st day of July, 1996, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4377

To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1. Paragraphs 1-7: Accepted in substance but not necessary to be incorporated in the recommended order.

2. Paragraph 8: The evidence presented showed that there is a dispute of whether the waters are now of substandard quality. For the purposes of this hearing, it is not necessary to determine whether the water quality is presently substandard. Based on the assumption that the water quality is not substandard, Petitioner has failed to show that the change in the design of the project is sufficient to warrant the rejection of the applicability of the doctrine of res judicata. Petitioner has failed to show that the addition of islands and a culvert will eliminate the potential for future contamination of the waters.

   The second sentence is accepted in substance but not necessary to be incorporated in the recommended order.

3. Paragraphs 9-11: Accepted in substance but not necessary to be incorporated in the recommended order.

4. Paragraphs 12-15: Accepted in substance to the extent that for the purposes of this hearing the water quality is assumed not to be substandard.

5. Paragraph 16: Rejected as unnecessary.

6. Paragraphs 17-27: Rejected as subordinate to the finding that for the purposes of this hearing the present water quality is assumed not to be substandard.

7. Paragraphs 28-30: Accepted in substance.

8. Paragraph 31: Accepted in substance to the extent that the changes in the design will not increase the flushing rate to four days.

9. Paragraphs 32-33: Accepted to the extent that they were findings in the final order on the 1991 application.

10. Paragraphs 34-35: Accepted to the extent that the slow flushing rate is one of the criteria to be considered. The increase of development and boat traffic are also contributors to the potential of contamination building up. Petitioner has not demonstrated that the use of islands and a culvert will eliminate the potential for contamination.

Respondent's Proposed Findings of Fact.

1. Paragraphs 1-10: Accepted in substance.

2. Paragraphs 11-14: Rejected as unnecessary.

3. Paragraph 15: Accepted in substance.

4. Paragraph 16: Accepted in substance as corrected.

5. Paragraph 17: Accepted.

6. Paragraphs 18-21: Accepted in substance.

7. Paragraph 22: Accepted.

8. Paragraph 23: Rejected as unnecessary.

COPIES FURNISHED:

David Paul Horan, Esquire Horan, Horan and Esquinaldo 608 Whitehead Street

Key West, Florida 33040-6549

Christine C. Stretesky, Esquire John L. Chaves, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Kenneth J. Plante, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Virginia B. Wetherell, Secretary Department of Environmental Protection

3900 Commonwealth Boulevard, Douglas Building Tallahassee, Florida 32399-3000

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.

Docket for Case No: 95-004377

Orders for Case No: 95-004377