STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DONALD FLYNN AND BEVERLY FLYNN, )
)
Petitioners, )
)
vs. ) Case No. 96-4737
) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a Section 120.57(1) hearing was held in this case on August 26 and 27, 1997, and September 12, 1997, by video teleconference, at sites in Fort Lauderdale and Tallahassee, Florida, before Stuart M. Lerner, a duly designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioners: Harry A. Stewart, Esquire
Joan T. Dwoskin, Esquire
Akerman, Senterfitt and Eidson, P.A. Post Office Box 231
Orlando, Florida 32801
For Respondent: Peter Cocotos
Douglas H. MacLaughlin Assistant General Counsel
Department of Environmental Protection 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUE
Whether Petitioners should be granted the relief requested in their petition challenging the Department of Environmental Protection's Consolidated Notice of Denial [of Petitioners' Application for an] Environmental Resource Permit and Lease to Use Sovereign Submerged Lands.
PRELIMINARY STATEMENT
On October 7, 1996, the Department of Environmental Protection (Department) referred to the Division of Administrative Hearings (Division) a petition it had received from Petitioners which challenged the Department's announced intention to deny Petitioners' application for an environmental resource permit and a lease to use sovereign submerged lands.
On October 15, 1996, the Department filed with the Division a Motion to Dismiss Petition and Memorandum of Law in Support Thereof (Motion). In its Motion, the Department argued that Petitioners' petition should be dismissed on the ground that it was not timely filed. On October 16, 1996, the undersigned Administrative Law Judge issued an order directing Petitioners to file with the Division, and serve on the Department, a response to the Department's Motion. Petitioners filed such a response on October 25, 1996.
On October 28, 1996, the undersigned issued an order declaring that "it would be inappropriate for [him] to make a recommendation as to whether Petitioners' petition should be
dismissed on the ground that it was not timely filed without first conducting an evidentiary hearing on the matter." In the order, the undersigned announced that such a hearing would be held, by telephone conference call, on November 21, 1996.
On October 30, 1996, the undersigned issued a Notice of Hearing in which he advised that, "[i]f a hearing on the merits of Petitioners' Petition Challenging Consolidated Notice of Denial of Environmental Resource Permit and Lease to Use Sovereign Submerged Lands [was] necessary, it [would] be held
. . . on February 27 and 28, 1997."
On November 13, 1996, Petitioners filed an unopposed motion requesting that the evidentiary hearing on the Department's Motion be continued. By order issued November 14, 1996, Petitioners' motion was granted. The hearing was subsequently rescheduled for December 3, 1996.
The evidentiary hearing on the Department's Motion was held on December 3, 1996, as scheduled. On December 6, 1996, the undersigned issued an order in which he stated the following:
As the parties were notified during the evidentiary hearing (held December 3, 1996) on Respondent's Motion to Dismiss (Motion) Petitioners' Petition Challenging Consolidated Notice of Denial of Environmental Resource Permit and Lease to Use Sovereign Submerged Lands (Petition), regardless of the undersigned's ruling on the Motion, there will not be a Section 120.57(1) hearing on the merits of the Petition on February 27 and 28, 1997. It is
the undersigned's intention, upon ruling on the Motion, to relinquish jurisdiction to Respondent to consider his ruling.i If Respondent determines that the Petition should not be dismissed and returns the matter to the Division of Administrative Hearings, a Section 120.57(1) hearing on the merits of the Petition will then be scheduled.
On February 6, 1997, the undersigned issued his Recommended Order on the Department's Motion to Dismiss, in which he recommended that "the Department enter an order finding that Petitioners' petition challenging the proposed denial of their Application [was] not time-barred and remanding the matter to the Division of Administrative Hearings for a Section 120.57(1) hearing on the merits of Petitioners' challenge." The Department followed the undersigned's recommendation. On March 19, 1997, it issued an order remanding the instant matter "to DOAH for a hearing on the merits of Applicants' petition under section 120.57(1), Florida Statutes."
` As noted above, such a hearing was held on August 26 and 27, 1997, and September 12, 1997. At the hearing, a total of 11 witnesses testified: Jeffrey Adair; Linda Childers; Joseph Baca, Ph.D; Richard Sullivan; Timothy Rach; Margaret Hall, Ph.D.; Carol Knox; Larry O'Donnell; Marion Hedgepeth; Edward Keith, Ph.D; and Aldemaro Romero, Ph.D.. In addition to the testimony of these 11 witnesses, numerous exhibits were offered and received into evidence.
At the conclusion of the evidentiary portion of the hearing, the undersigned, on the record, announced that the deadline for the filing of proposed recommended orders was 45 days from the date of the undersigned’s receipt of the transcript of the hearing. The undersigned received the hearing transcript on September 29, 1997.
On October 2, 1997, Petitioners filed an amended petition, which, unlike its original petition, included a request that it be awarded attorney's fees and costs pursuant to Section 120.595(1), Florida Statutes. On October 10, 1997, the Department filed a Motion to Dismiss Petitioners' Amended Petition (Motion). In its Motion, the Department argued that Petitioners had "improperly filed an amended petition with the
Division of Administrative Hearings without an order from the ALJ granting the Petitioner[s] leave to amend the petition," as required by Rule 60Q-2.004(4), Florida Administrative Code, and that therefore their amended petition should be dismissed. On October 14, 1997, the undersigned issued an order directing "Petitioners [to] file a written response to [the Department's] Motion no later than October 20, 1997." Petitioners served their written response on October 20, 1997. The response was filed two
days later. In their response, Petitioners contended that, at the final hearing, they had sought and received the undersigned's approval to file their amended petition.
In an order issued October 23, 1997, which provided, in pertinent part, as follows, the undersigned rejected Petitioners' contention that they had already received approval from the undersigned to file their amended petition:
An examination of the transcript of the final hearing reveals that Petitioners did "ore tenus move to amend [their] pleadings to include [a request for] attorney's fees." A review of the transcript further reveals, however, (contrary to the assertion made by Petitioners in their written response to Respondent's Motion) that the undersigned did not grant the request, but rather responded to the request by indicating that Petitioners needed "to be more specific and state the statutory basis upon which [they were] seeking attorney's fees." Petitioners replied that they would be filing a post- hearing pleading with the undersigned providing the necessary specificity. With that announcement, the discussion concerning Petitioners' request that they be granted leave to amend their petition ended without the undersigned ruling favorably on the request.
The undersigned went on to state in his order, however, the following:
The filing of Petitioners' Amended Petition, when considered in conjunction with the colloquy at the final hearing described above, may reasonably be viewed as tantamount to the renewal of Petitioners' request for leave to amend their petition to include a request for an award of attorney's
fees, and it will be treated as such by the undersigned. No later than twelve days from the date of this Order Directing Response, [the Department] shall file a written response to Petitioners' renewed request for leave to amend their petition. Thereafter, the undersigned will rule on the request.
If the request is granted, [the Department's] Motion will be denied. If the request is denied, Respondent's Motion will be granted.
The Department filed a response on November 4, 1997. In its response, it argued that that Petitioners should not be permitted to amend their original Petition at such a late date in the proceeding.
On November 4, 1997, the undersigned issued an order in which he stated the following:
Petitioners are seeking leave to amend their original Petition to include the allegation that they are entitled to an award of attorney's fees and costs pursuant to Section 120.595(1), Florida Statutes, which provides as follows:
"(1) CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION 120.57(1)."
The provisions of this subsection are supplemental to, and do not abrogate, other provisions allowing the award of fees or costs in administrative proceedings.
The final order in a proceeding pursuant to s. 120.57(1) shall award reasonable costs and a reasonable attorney's fee to the prevailing party only where the nonprevailing adverse party has been determined by the administrative law judge to have participated in the proceeding for an improper purpose.
In proceedings pursuant to s. 120.57(1), and upon motion, the administrative law judge shall determine whether any party participated in the proceeding for an improper purpose as defined by this subsection and s. 120.569(2)(c). In making such determination, the administrative law judge shall consider whether the nonprevailing adverse party has participated in two or more other such proceedings involving the same prevailing party and the same project as an adverse party and in which such two or more proceedings the nonprevailing adverse party did not establish either the factual or legal merits of its position, and shall consider whether the factual or legal position asserted in the instant proceeding would have been cognizable in the previous proceedings. In such event, it shall be rebuttably presumed that the nonprevailing adverse party participated in the pending proceeding for an improper purpose.
In any proceeding in which the administrative law judge determines that a party participated in the proceeding for an improper purpose, the recommended order shall so designate and shall determine the award of costs and attorney's fees.
For the purpose of this subsection:
'Improper purpose' means participation in a proceeding pursuant to s. 120.57(1) primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of licensing or securing the approval of an activity.
'Costs' has the same meaning as the costs allowed in civil actions in this state as provided in chapter 57.
'Nonprevailing adverse party' means a party that has failed to have substantially
changed the outcome of the proposed or final agency action which is the subject of a proceeding. In the event that a proceeding results in any substantial modification or condition intended to resolve the matters raised in a party's petition, it shall be determined that the party having raised the issue addressed is not a nonprevailing adverse party. The recommended order shall state whether the change is substantial for purposes of this subsection. In no event shall the term 'nonprevailing party' or 'prevailing party' be deemed to include any party that has intervened in a previously existing proceeding to support the position of an agency."
Because it is the agency that proposed the agency action which is the subject of this proceeding, [the Department] cannot be in the instant case, under any circumstances, a "nonprevailing adverse party" against whom an award of attorney's fees and costs may be made pursuant to Section 120.595(1), Florida Statutes. See Sellars v. Broward County School Board, No. 97-3540F (DOAH September 25, 1997)(Final Order); Hall v. Department of Juvenile Justice, No. 97-0175F (DOAH July 3, 1997)(Final Order). Inasmuch as Petitioners are seeking to amend their original Petition to request relief to which, as a matter of law, they are not entitled, it is hereby ORDERED:
Petitioners' renewed request for leave to amend their original Petition to include a demand for such relief is denied.
Respondent's Motion is granted.ii
On November 12 and 13, 1997, respectively the Department and Petitioners filed their proposed recommended orders. These post-hearing submittals have been carefully considered by the undersigned.
FINDINGS OF FACT
Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made:
Petitioners own upland property located at 927 Hillsboro Mile in Broward County, Florida (Petitioners' Upland Property).
Petitioners' Upland Property lies adjacent to (and east of) the Intracoastal Waterway (ICW). It is just north of the Hillsboro Inlet, which is approximately 5 miles south of the Broward County/Palm Beach County line.
The shoreline frontage of Petitioners' Upland Property is in excess of 200 feet. It consists of sandy beach.
At this location, the ICW is a Class III waterbody that is neither an Outstanding Florida Water nor an aquatic preserve.
Petitioners do not own the submerged lands adjacent to their Upland Property.
The State of Florida owns these submerged lands.
Petitioners do not reside on their Upland Property.
The property is presently unoccupied and has been so for a considerable period of time.
Local boaters (generally in small boats) anchor their boats in the vicinity of the property and use the property (without Petitioners' permission) for sunbathing and similar activities.
Petitioners are the owners of the "Battered Bull," a 171-foot long, 30 and a half-foot wide, 650 ton, foreign- registered yacht, equipped with (115 Horsepower) bow thrusters.
The vessel has a draft of nine feet (when it is half full).
Petitioners do not now, nor do they intend to, keep the "Battered Bull" in port in the United States longer than three months a year.
There is presently a small wooden dock extending from Petitioners' Upland Property to the ICW.
The dock is too small and the surrounding water is too shallow to accommodate the "Battered Bull."
The previous owner of Petitioners' Upland Property, Thomas Worrell, applied for and received a permit to construct a larger (1,075 square-foot) dock on the site (Worrell Dock).
Worrell had originally proposed to construct a 2,002 square-foot dock and to engage in dredging activity, but as a result of negotiations with the Department, he reduced the size of the dock and eliminated the dredging portion of the project. Although there were still shading impacts, the Department, in October of 1991, issued a permit for the construction of the Worrell Dock.
The Worrell Dock, however, was never built.
On October 19, 1995, Petitioners filed an application with the Department (Joint Application) for: (1) an environmental resource permit (ERP) for what hereinafter will be referred to as the "Proposed Project," consisting of (a) the construction of a concrete, T-shaped, "single family" (single slip) dock (with a 140-foot long terminal platform and a 130- foot long access ramp/walkway) designed to accommodate the "Battered Bull," and (b) the dredging of the ICW bottom to increase the depth of the water next to the site of the dock;
and (2) authorization to use the state-owned submerged lands upon which the dock would be constructed and dredging performed (Project Site).
Petitioners have since revised the Proposed Project in an effort to meet concerns expressed by the Department and to gain the Department's approval. Various revisions have been made.iii Unless otherwise indicated, all references made to the Proposed Project will be to the version of the Proposed Project most recently submitted to the Department.
The dock that Petitioners propose to construct (Proposed Dock) would have a total square footage of 2,233 square feet. (The revisions that Petitioners have made to the Proposed Project have not included a reduction in the total square footage of the dock. Petitioners requested permission to construct a 2,233 square-foot dock in their Joint Application.)
The Proposed Dock would be substantially larger than any existing "single family" dock in the area around Petitioners' Upland Property. Lighthouse Point Marina, however, which is in the vicinity of the Project Site (approximately 1,100 feet northwest of the Proposed Dock) has docks of similar size. These docks are approximately 7,980 square feet in toto. Three of the docks are 2,300 square feet or more. In addition, the marina has a 1,000-foot (wide) seawall.
The pilings used to support the access ramp/walkway
(the east-west component of the Proposed Dock) would be spaced
25 feet apart.
The pilings used to support the terminal platform (the north-south component of the Proposed Dock) would be spaced ten feet apart.
The Proposed Dock would be made of concrete.
Concrete docks are resistant to marine organism attack.
They last longer than their wooden counterparts.
Petitioners propose to dredge .55 of an acre of ICW bottom. (In their Joint Application, Petitioners originally proposed to dredge approximately an acre of ICW bottom.)
The Department does not typically approve "single family" dock projects which involve dredging.
The Proposed Dock would extend 110 feet from the shoreline. (The Worrell Dock, if it had been constructed, would have extended slightly further than 110 feet from the shoreline.)
In the area of the Project Site, the ICW is 420 feet wide.
The Proposed Dock and the "Battered Bull" (which, as noted above, is approximately 30 feet wide), when moored at the Proposed Dock, would combine to utilize one third of the width of the ICW.
The water depth in the area where the Proposed Dock would be constructed ranges from two to approximately six or seven feet.
Pleasure boaters, water-skiers, and jet-skiers now use these waters on a regular basis.
Their ability to continue to use these waters for boating, water-skiing, and jet-skiing would be adversely affected if the Proposed Dock were built. The dredging component of the Proposed Project, however, would enable larger vessels, such as the "Battered Bull," to navigate in the dredged area.
The Proposed Project would serve Petitioners' navigational interests inasmuch as it would allow them to dock their yacht behind their Upland Property, which they are presently unable to do.
The United States Army Corps of Engineers (Corps) prohibits the construction of any structure in the ICW that is not set back 60 feet or more from the landward edge of the ICW's navigational channel. The Proposed Dock would not be in violation of this 60-foot setback requirement.
The Corps, however, has not approved the Proposed Project.
It has deactivated its file (without taking any action
on the Proposed Project), pending the Department's review of the matter.
Turbidity is associated with most marine construction and dredging projects.
Petitioners, however, would take measures (recommended in the Florida Department of Transportation's turbidity control guidelines) to minimize turbidity during the construction of the Proposed Project.
Turbidity curtains and silt screens, as well as a hydraulic dredge, would be utilized.
Furthermore, if 29 NTUs (which is a turbidity unit) is exceeded during construction, operations would cease until this standard can be met.
Petitioners further propose, as part of the dredging component of the Proposed Project, to construct an underwater concrete structure referred to as an "erosion mattress," which is designed to withstand a hundred-year storm.
The "erosion mattress" would be placed against the side slopes of the dredge basin and would minimize or nullify any scouring action that would otherwise occur.
The presence of the "erosion mattress" would lessen the need for continued maintenance.
The "erosion mattress" would be more than 25 feet from the riparian line of the adjacent property owner to the north.
Under the present design, the structural components of the Proposed Project would come within 25 feet of the riparian line of only one adjacent property owner, the adjacent property owner to the south, Gerald Millot.
On July 22, 1997, Millot signed a waiver of riparian setback requirements in which he stated that he had no objection to the Proposed Project "not meeting the . . . 25-foot setback requirement" imposed by Rule 18-21.004(3)(d), Florida Administrative Code.
The .55 of an acre of ICW bottom that Petitioners propose to dredge contains a .41 of an acre area of seagrasses (Seagrass Footprint). This is .37 of an acre less than the area of seagrasses that, in their Joint Application, Petitioners initially proposed to dredge.
The seagrasses in this .41 of an acre Seagrass Footprint would be destroyed by the dredging. In addition to the destruction of the seagrasses in the Seagrass Footprint, .03 of an acre of seagrasses would be shaded by the Proposed Dock. Furthermore, the turbidity associated with the Proposed Project would possibly have an adverse effect on seagrasses adjacent to the Seagrass Footprint.
Seagrasses are highly productive systems which have a variety of ecological functions. Even small amounts of seagrass have some value.
Seagrasses serve as a critical fisheries habitat.
They provide refuge for a variety of fish and invertebrates.
They are used directly as food by wading birds, manatees, and sea turtles, among others.
Seagrasses that are not eaten turn into detritus and form the foundation of the detrital food chain.
Seagrasses provide structure for epiphytic algae.
Epiphytic algae is a food source for many invertebrate faunae, which, in turn, are eaten by larger organisms.
Seagrasses stabilize bottom sediments and prevent sediment resuspension, thereby helping to maintain water clarity.
Light is the most important environmental factor controlling the distribution and abundance of seagrasses. Salinity, temperature, current, and nutrient level are other significant factors.
Shading almost always has a negative impact on seagrasses. It may not kill them, but it will reduce the amount of their primary production. The extent of the negative impact depends upon the species of the impacted seagrass.
Seagrasses are a declining resource in the State of Florida, especially in the southeastern part of the state.
Stormwater runoff is the primary culprit. Prop scarring is also a contributing factor, but it has not played as large a role in the diminution of seagrasses in Florida as has stormwater runoff.
Several species of seagrasses (all covered with blue- green algaeiv) have been observed on the Project Site: Halophila johnsonni, Halophila decipiens, Halodule wrightii (which grows in shallow water), and Syringodium filiforme (which grows in
deeper water and is known as manatee grass). (There is Thalassia testundium, which is known as turtle grass, to the north of, but not on, the Project Site.)
The dominant seagrass on the Project Site is Halophila
johnsonni, which is presently being considered for listing as a threatened species (although it now appears to be more common than was first thought). Halophila johnsonni has only been
observed on the east coast of Florida, from the Sebastian Inlet to Biscayne Bay. It has the most limited distribution of any species of seagrass in the world.
Halophilas in general are much more fragile and delicate seagrass species than Halodule wrightii, manatee grass, or turtle grass. Because their rhizomes do not penetrate deeply into the sediment, when there is a circular flow of water, such as when a boat is moving in and out of an area, they are apt to become dislodged. (When there is a unidirectional current,
however, Halophilas "lean over" and stabilize the sediment.)
Halophilas are diminutive seagrasses with less biomass than non-Halophila seagrasses, but they are able to grow in areas where, because of lack of sufficient light, these other seagrasses are unable to colonize.
Halophilas need less light than other, larger seagrasses, which have more non-photosynthetic material to support. Halophilas can colonize and survive in areas with only
10 percent surface irradiance. In contrast, Halodule wrightii, manatee grass, and turtle grass will not grow in areas which do not have at least 20 to 35 percent surface irradiance.
Halophilas have extremely high rates of production.
Furthermore, unlike other types of seagrasses, their shoots start to decompose and turn into detritus very rapidly (within
48 to 72 hours). Therefore, although they may not have the above-ground biomass of other seagrass species, they enter the food chain with great rapidity. They thus are a valuable resource in areas that otherwise have low benthic primary production.
Seagrass beds in general, and Halophila johnsonni in particular, move around. They may be in one spot one year and in another (close-by) location the next. Therefore, although seagrass may not be presently growing in a particular area, that
area may be a potential site for such growth.
The density of the Halophila johnsonni at the Project Site is typical of Halophila johnsonni beds in the ICW in Broward County and southern Palm Beach County. It is not especially sparse (compared to other Halophila johnsonni beds in
the area), nor is it especially lush. It may best be described as patchy (in that it does not cover the entire Seagrass Footprint and is thicker in the deeper water). During the winter season, it is much less dense than it is during the summer months.
The seagrass community in the Seagrass Footprint is a healthy and productive one containing invertebrates, blue crabs, barracudas, and other fishes.
This healthy and productive community would be eliminated if Petitioners dredged the Seagrass Footprint as they propose to do.
It is unlikely that seagrasses would return to the Seagrass Footprint after completion of the Proposed Project.v
The disturbance that would be created by the movement of Petitioners' yachtvi and the shade that would be produced by the yacht when it is docked would inhibit the regrowth of Halophila johnsonni and other seagrasses in the dredged area.
It therefore does not appear likely that the loss of seagrasses resulting from the dredging would merely be
temporary.
The potential loss of seagrasses is of particular concern because the Project Site is along a manatee travel and migratory corridor.
Manatees seek out warm water during the colder months of the year.
They begin their southward movement down the ICW in late fall.
They tend to aggregate at the Riviera Beach power plant in Palm Beach County (north of the Project Site) and then move to
the Port Everglades power plant in Broward County (south of Project Site).
Approximately 220 to 300 manatees are involved in this migratory process.vii
During their journey, they are susceptible to cold stress, and it is therefore important that they have sufficient food sources en route to their destination.
The Department conducts aerial surveys to monitor the activities of the manatees who travel up and down the ICW past the Project Site.
During these aerial surveys, manatees have been observed traveling, resting, and feeding in the vicinity of the
Project Site. The vast majority of the sightings have been of manatees who were simply traveling through the area.
Based on these sightings, the Department, by rule,viii has designated the area a seasonal (from November to March) slow-speed zone for motorboat traffic. (During the remaining portion of the year, the speed limit in the channel is 25 miles an hour.)
The aerial surveys have not revealed any manatees feeding on the Project Site, although a group of five manatees were seen on one occasion (December 28, 1988) bottom feeding just north of the Project Site.
There are, at most, 2600 manatees remaining in Florida.
In recent years (with the exception of 1996, when the presence of red tide resulted in the death of 150 manatees), the statewide manatee population has not declined as rapidly as it had in the past.
Some locations in Florida have even increased their population of manatees.
Nonetheless, the manatee is still (according to the federal government) an endangered species.
The two main threats to the survival of the manatee are injuries inflicted by watercraft and loss of habitat.
Broward County, in particular, has experienced a
substantial loss of manatee habitat.
If the manatee population is to increase over time, more habitat is needed.
Manatees are large herbivores (weighing up to 3,000 pounds).
Each day, they must consume a considerable amount of vegetation to obtain the energy and nutrients they need. As a result, they spend an inordinate amount of time feeding.
If they see food while travelling, they will stop and eat, provided the current is not too strong.
Seagrasses form the largest part of the diet of manatees.
Manatees also eat, among other types of vegetation, mangrove leaves overhanging the water.ix Mangrove leaves, however, are less nutritious and harder to digest than seagrasses.
Manatees graze (eat just the blades of the seagrass).
They also root (eat the remainder of the seagrass, including the root system), particularly when grazing opportunities are limited.
Manatees prefer the larger seagrasses, such as Syringodium filiforme and Thalassia testundium, but they will eat Halophila johnsonni.
Manatees will feed on seagrasses that are covered with
blue-green algae (although the algae may make it difficult for manatees to initially identify these seagrasses as food items).x
The seagrasses on the Project Site are potential food sources for manatees.
While there may be times during the day that the water on the Project Site is moving too fast for manatees to eat these seagrasses without expending a significant amount of energy, there are other occasions when the water on the Project Site is calm and conditions are favorable for grazing.
Although it would take a relatively short period of time (from 20 minutes to an hour) for a grazing manatee to denude the Project Site of its seagrasses, the seagrasses would regenerate.
The area around the Project Site is already highly altered.
Seagrasses are not abundant and plentiful.
Eliminating the seagrasses in the Seagrass Footprint (by dredging) would further diminish the supply of food manatees have available to them in this area.xi
While the Proposed Project would likely result in a decrease in the use of the Project Site by pleasure boaters and water and jet skiers and a resultant decrease in the disturbances
caused by such use, on balance, the Proposed Project would have an adverse environmental impact on the Project Site and surrounding area.
The Proposed Project's social, economic, and environmental disadvantages, including most significantly the likely permanent loss of seagrasses, would outweigh its social, economic, and environmental benefits.
Petitioners have proposed measures to mitigate the adverse effects of the Proposed Project.
Shortly before the commencement of the final hearing in this case, Petitioners submitted their most recent written proposed mitigation plan to the Department (Revised Mitigation Plan). Petitioners' Revised Mitigation Plan contains several maps and drawings, as well as the following narrative:
INTRODUCTION
The Flynn property is located at 927 Hillsboro Mile, Hillsboro Beach, Florida. The proposed project includes the construction of a dock and dredge basin along the east bank of the Intracoastal Waterway (ICWW). Please refer to DEP File No. 062795176 for additional details.
Preliminary seagrass surveys conducted in 1994 indicated that the proposed construction activities would impact approximately 0.44 acres of an existing patchy seagrass bed (ref. Figure 1).
To satisfy riparian line setback requirements and to minimize impacts, the design of the dredge basin was recently modified. This has lessened the area of
seagrass impacts to 0.41 acres (as shown on Figure 2); however, the mitigation proposal is based on the original proposed impact of
0.44 acres of seagrass impacts.
The intent of the proposed Mitigation Plan is to compensate for any "lost ecological functions" due to the construction activities.
General
The proposed Plan describes the goals, the means of implementation and success criteria for sustainability. Upon receiving written approval of the Plan from DEP, construction drawings will be prepared detailing field collected baseline data (i.e. hydrographic and boundary survey; precise excavation and fill calculations, planting details and specification; etc.).
Description
The proposed mitigation site is located in the ICWW as shown on Figure 3 and is known as "Bryan Island." According to the Marine Association of South Florida (MIASF), the Site is a spoil island which was created from dredging activities in the 1950s and was above the water's surface and vegetated into the 1970s. The Site is currently a fairly stable submerged island, and has lost its function as a wildlife habitat.
According to the 1996 Broward County Redi- Map, the size of the Site is approximately
1.4 acres. Preliminary surveys indicate elevations vary from -2.5 to -4.5 feet NGVD over the 1.4 acre area. A formal bathymetric and boundary survey will be conducted to determine the actual size and existing elevations of the Site upon agency approval of the proposed Plan. A preliminary investigation conducted June 11, 1997 revealed that the area to be filled and planted is a viable mitigation site with no evidence of existing flora or fauna. The
Flynn's are negotiating an option to buy Bryan Island from the current private landowner and will finalize the option upon agency approval of the proposed Plan.
The proposed Mitigation Plan includes the filling of 0.96 acres of submerged land to an elevation of 1.0' NGVD for the planting of a mixture of Black (Avicennia germinans) and Red (Rhizophora mangle) mangrove trees to be planted as specified in the attached drawing. In addition, a shallow water lagoon will be created by excavating 0.44 acres to a depth of -6.6' NGVD. The Lagoon will provide a low energy habitat suitable for seagrass recruitment and growth and a shelter for marine invertebrates and fish. Planted mangroves will be of 1-gallon size (16'' min. height), nursery stock, raised under saltwater conditions (anaerobic with monthly additions of 15 ppt. sea salts from beginning culture) and planted on three foot centers (3'O.C.). Please reference the table presented below for the planting scheme.
Planting Scheme
_
Plant Species /Size /O.C. /Quantity
/
/ / /
/
Black Mangrove /1 gal. /3 feet /
/
(Avicennia /(16'' / /
/
germinans) / min. / /
/
/
/approximate
/height) / /3450
/ /
/ / /combined
/
Red Mangrove /1 gal. /3 feet /total
/
(Rhizophora /(16'' / /
/
mangle) / min. / /
/
/height) / /
/
/ / /
/
Note: All plant material will be of nursery/ stock
/
/
The newly planted mangroves will be protected from wave action by a rip-rap perimeter. The rip-rap will consist of limerock, 1-3' each in diameter underlain by filter fabric. The rip-rap, in addition to providing shelter for mangrove trees, will enhance the created system by providing a hard substrate habitat for marine invertebrates and fish.
The overall goal of this Plan is to provide a net benefit to the South Florida environment. The creation of 1.4 acres of mitigation with multiple community types (0.96 acres of mangroves with a rip-rap berm and 0.44 acres of seagrass), in exchange for
0.41 acres of impacts to a sparse seagrass area will provide additional habitat and benefit to the Marine Environment of Broward County. A conservation easement will be granted over the mitigation site to ensure its preservation and care in perpetuity.
Monitoring and Maintenance Plan
The applicant will ensure an 80% coverage rate by planted species for the mitigation area. This success criteria will be achieved within three years of project
completion. Eighty percent coverage shall be present at the end of the three year period except where species composition, density of planted and recruited species and overall wetland condition, growth rates and viability of the area are of higher quality, as determined by the permitting agencies.
Planting to achieve 80% coverage of plant species shall be performed as necessary.
Upon completion of the mitigation area, the applicant will provide: 1) certification of elevations in relation to design; and 2) the Time-Zero Monitoring Report. Such documentation will be submitted to the permitting agencies within
45 days of completion of the mitigation area.
Semi-annual monitoring reports for a three year period are proposed for the Site. Reports shall include the date, time, exact location of monitoring, entity responsible for monitoring, % survival, photographs taken from permanent stations established during the Time-Zero Monitoring, a description of any problems encountered and solutions undertaken, and anticipated work for the following monitoring period.
Less than 5% coverage by invasive exotic and undesirable species is recommended. Exotic and undesirable species include, but are not limited to, Malaleuca, Australian pine, Brazilian pepper, Bischofia and Mahoe. Although no problems are anticipated, a maintenance schedule shall provide for routine maintenance for the duration of the monitoring period or until the mitigation is deemed successful by the permitting agencies.
Construction Schedule
The anticipated sequence of activities for the proposed mitigation project is outlined below.
A temporary turbidity barrier will be installed prior to all construction activities.
Site excavation and final grading will be conducted per the final mitigation construction plans.
Filling activities will be conducted by "Floating" heavy equipment.
Rip-rap and additional fill will be transported by barge, placed and graded as specified on the attached drawing.
As-built certifications will be submitted and approved by the permitting agencies prior to planting.
6. The mitigation area will be planted per the final mitigation construction drawings.
Mitigation Costs
Mitigation costs are summarized below
Plants | $10,350.00 |
Rip-rap and Filter Fabric | $37,000.00 |
Sand and Muck Fill | $80,000.00 |
Equipment Rental | $27,000.00 |
Construction | $154,350.00 |
Monitoring $2,500/report x 6 reports | $15,000.00 |
Land Costs | $10,500.00 |
Total Estimate Mitigation | Costs $179,850.00 |
Note: The above costs represent general construction fees for the associated tasks to be performed for the construction of the mitigation area. These approximate costs may vary slightly from contractor to contractor upon project bidding.
A donation of the completed Mitigation Site to either the MIASF or other environmental or preservation organizations has been discussed and is under consideration. There has also been some discussion regarding the expansion of the proposed Site for future mitigation
projects. Although these are valid discussions, they are not a part of the proposed plan.
As noted in the Revised Mitigation Plan, Bryan Island (Revised Mitigation Site) was created as a spoil island when the ICW was dredged. The top portion of the island was subsequently sold as fill. The island is now entirely submerged.
Petitioners do not own the Revised Mitigation Site, and they have made no definite arrangements for perpetual maintenance of the site.
There are no seagrasses on the Revised Mitigation Site.xii There are, however, attached algae, tube-dwelling arthropods, other invertebrates, and fishes.
Excavating and filling the site would destroy any community that now exists there.
The Revised Mitigation Site is located south of the Project site approximately at the juncture of the ICW and the New River in the City of Fort Lauderdale.
It is near the Port Everglades power plant, which, as noted above, is a manatee aggregation site. (The Project Site is not as close to a manatee aggregation site as is the Revised
Mitigation Site.)
There is a considerable amount of boat traffic in the area, especially on weekends.
The boat traffic in the area of the Revised Mitigation Site is heavier than is the boat traffic in the area of the Project Site.
Given the amount of boat traffic in the area, it would be very difficult to maintain the Revised Mitigation Site.
Due to the large number of manatees and boats in the area of the Revised Mitigation Site, it has been designated a year-round slow speed zone. (This is a more restrictive speed zone than a seasonal speed zone. The only more restrictive speed zone than a year-round slow speed zone is a no entry zone.xiii)
A number of dead-end canals enter the ICW near Bryan Island.
Numerous vessels use these dead-end canals. The majority of these vessels are "live-aboards."
As a result, fecal coliform levels in and around the Revised Mitigation Site are relatively high.
Also present in the water in and around the Revised Mitigation Site are paint and copper from boat bottoms and dock structures.
The flushing at the Revised Mitigation Site is not as good as the flushing at the Project Site. The difference is due, at least in part, to the latter's proximity to an inlet.
Petitioners have not submitted to the Department any water quality data concerning the Revised Mitigation Site.
There is no reason to believe that seagrasses ever grew on the Revised Mitigation Site.
As part of their Revised Mitigation Plan, however, Petitioners propose to recruit seagrasses to the Revised Mitigation Site.
Although they did not so specify in their Revised Mitigation Plan, it appears (based upon the testimony elicited at the final hearing) that they intend to accomplish such recruitment by transplanting seagrasses from the Project Site at the Revised Mitigation Site.
In general, well over 90 percent of seagrass transplantation projects fail.
The failure of these projects is usually due to an unsuitable relocation site (that is, one which is unable to support the transplanted seagrasses).
There is no more unsuitable a relocation site for seagrasses than one where water quality is bad and seagrasses have not historically grown.
While it is theoretically possible to successfully transplant Halophila johnsonni (if a suitable relocation site is selectedxiv), it has never been done (at least to the knowledge of the experts who testified on the subject at the final hearing).
Petitioners have not established that the Revised Mitigation Site is a suitable relocation site for the seagrasses they propose to transplant, and therefore they have not shown that the seagrass transplantation component of their Revised Mitigation Plan, if implemented, would likely succeed.
In their Revised Mitigation Plan, Petitioners also propose to plant approximately 3,450 mangroves on the Revised Mitigation Site.
A mangrove is an intertidal tree.
Mangroves, like seagrasses, provide fisheries habitat.
Generally, however, because of their structural differences, mangroves and seagrasses provide habitat to different types of faunae.
Mangrove transplantation projects are more likely to be successful than seagrass transplantation projects.
With the correct elevation and wave energy, there is a high probability that a transplanted intertidal plant, like a mangrove, will grow.
Even if the mangrove transplantation component of the Revised Mitigation Plan were successful, it would not provide "like for like" mitigation fully offsetting the adverse impact of the Proposed Project on seagrasses.
Mangroves on the Revised Mitigation Site would not be an adequate substitute or replacement for the seagrasses in the Seagrass Footprint.
It is important to the survival of the manatees who pass by the Project Site on their travels up and down the ICW each year that there be no further net loss of seagrasses available for them to feed on while traveling in the area of the Project Site.xv
If the Department grants Petitioners' Joint Application, it is reasonable to anticipate that other similarly situated property owners on the ICW would seek authorization to undertake "single family" dock construction/dredging projects with similar adverse seagrass impacts.
If these other projects are also permitted, there likely would be an even further net loss of seagrasses in the area.
CONCLUSIONS OF LAW
Article X, Section 11, of the Florida Constitution provides as follows with respect to "[s]overeignty lands":
The title to lands under navigable waters, within the boundaries of the state, which have not been alienated, including beaches below mean high water lines, is held by the state, by virtue of its sovereignty, in trust for all the people. Sale of such lands may be authorized by law, but only when in the public interest. Private use of portions of such lands may be authorized by law, but only when not contrary to the public interest.
Pursuant to 253.03(1), Florida Statutes, the Board of Trustees of the Internal Improvement Trust Fund (Board), which is comprised of the Governor and Cabinet, "is vested and charged with the acquisition, administration, management, control, supervision, conservation, protection, and disposition" of all state-owned lands, including those "sovereignty lands" referenced in Article X, Section 11, of the Florida Constitution.
The Board has also been delegated the authority to adopt rules necessary to carry out these functions. Section 253.03(7)(a), Florida Statutes.
The Board has adopted such rules.
One such rule the Board has adopted is Rule 18- 21.004, Florida Administrative Code, which sets forth "[m]anagement [p]olicies, [s]tandards, and [c]riteria." It provides, in pertinent part, as follows:
The following management policies, standards, and criteria shall be used in determining whether to approve, approve with conditions or modifications, or deny all requests for activities on sovereign submerged lands.
General Proprietary
For approval, all activities on sovereignty lands must be not contrary to the public interest, except for sales which must be in the public interest.
All leases, easements, deeds or other forms of approval for sovereignty land activities shall contain such terms, conditions, or restrictions as deemed necessary to protect and manage sovereignty lands. . . .
Activities on sovereignty lands shall be limited to water dependent activities only unless the [B]oard determines that it is in the public interest to allow an exception as determined by a case by case evaluation. Public projects which are primarily intended to provide access to and use of the waterfront may be permitted to contain minor uses which are not water dependent if:
located in areas along seawalls or other nonnatural shorelines;
located outside of aquatic preserves or class II waters; and
the nonwater dependent uses are incidental to the basic purpose of the project, and constitute only minor nearshore encroachments on sovereign lands. . . .
Stilt houses, boathouses with living quarters, or other such residential structures shall be prohibited on sovereignty lands.
The State Lands Management Plan shall be considered and utilized in developing recommendations for all activities on sovereignty lands. . . .
Resource Management
All sovereignty lands shall be considered single use lands and shall be managed primarily for the maintenance of essentially natural conditions, propagation of fish and wildlife, and traditional recreational uses such as fishing, boating, and swimming. Compatible secondary purposes and uses which will not detract from or interfere with the primary purpose may be allowed.
Activities which would result in significant adverse impacts to sovereignty lands and associated resources shall not be approved unless there is no reasonable alternative and adequate mitigation is proposed.
The Department biological
assessments and reports by other agencies with related statutory, management, or regulatory authority may be considered in evaluating specific requests to use sovereignty lands. Any such reports sent to the [D]epartment in a timely manner shall be considered.
Activities shall be designed to minimize or eliminate any cutting, removal, or destruction of wetland vegetation (as listed in Rule 17-4.020(17), Florida Administrative Code) on sovereignty lands.
. . .
(g) Severance of materials from sovereignty lands shall be approved only if the proposed dredging is the minimum amount necessary to accomplish the stated purpose and is
designed to minimize the need for maintenance dredging. . . .
(i) Activities on sovereignty lands shall be designed to minimize or eliminate adverse impacts on fish and wildlife habitat. Special attention and consideration shall be given to endangered and threatened species habitat. . . .
Riparian Rights
None of the provisions of this rule shall be implemented in a manner that would unreasonably infringe upon the traditional, common law riparian rights of upland property owners adjacent to sovereignty lands.
Applications for activities on sovereignty lands riparian to uplands can only be made by and approved for the upland riparian owner, their legally authorized agent, or persons with sufficient title interest in uplands for the intended purpose.
All structures and other activities must be within the riparian rights area of the applicant and must be designed in a manner that will not restrict or otherwise infringe upon the riparian rights of adjacent upland riparian owners.
All structures and other activities must be set back a minimum of 25 feet from the applicant's riparian rights line. Marginal docks may be set back only 10 feet. There shall be no exceptions to the setbacks unless the applicant's shoreline frontage is less than 65 feet or a sworn affidavit of no objection is obtained from the affected adjacent upland riparian owner, or the proposed structure is a subaqueous utility line.xvi
Another rule adopted by the Board pursuant to the authority delegated it pursuant to Section 253.03(7)(a), Florida Statutes is Rule 18-21.003, Florida Administrative Code, subsection (40) of which provides as follows:
"Public interest" [as used in Rule 18- 21.004, Florida Administrative Code] means demonstrable environmental, social, and economic benefits which would accrue to the public at large as a result of a proposed action, and which would clearly exceed all demonstrable environmental, social, and economic costs of the proposed action. In determining the public interest in a request for use, sale, lease, or transfer of interest in sovereignty lands or severance of materials from sovereignty lands, the [B]oard shall consider the ultimate project and purpose to be served by said use, sale, lease, or transfer of lands or materials.
The rules adopted by the Board in Chapter 18-21, Florida Administrative Code:
are to implement the administrative and management responsibilities of the [B]oard and [D]epartment regarding sovereign submerged lands. Responsibility for environmental permitting of activities and water quality protection on sovereign and other lands is vested with the Department of Environmental Protection. These rules are considered cumulative. Therefore, a person planning an activity should consult other applicable department rules as well as the rules of the Department of Environmental Protection.
Rule 18-21.002(1), Florida Administrative Code.
The Board is authorized to delegate to the Department "any statutory duty or obligation relating to the acquisition, administration, or disposition" of state-owned land. Section 253.002(1), Florida Statutes. "Delegations to the [D]epartment
. . . of authority to take final action on applications for authorization to use submerged lands owned by the [B]oard . . .
, without any action on behalf of the [B]oard . . . , [must] be by rule." Section 253.002(2), Florida Statutes.
The Board has adopted a rule, Rule 18-21.0051, Florida Administrative Code, delegating to the Department:
the authority to review and take final agency action on applications to use sovereign submerged lands when the application involves an activity for which that agency has permitting responsibility .
. . unless the proposed activity includes any of the following:
docking facilities with more than 50 slips, and additions to existing docking facilities where the number of proposed new slips exceeds 10% of the existing slips and the total number of existing and proposed additional slips exceeds 50;
docking facilities having a preempted area, as defined in Subsection 18- 21.003(38), F.A.C., of more than 50,000 square feet, and additions to existing docking facilities where the size of the proposed additional preempted area exceeds 10% of the existing preempted area and the total of existing and proposed additional preempted area exceeds 50,000 square feet;
private easements of more than 5 acres; or
the establishment of a mitigation bank.
In exercising its delegated authority "to review and take final agency action on applications to use sovereign submerged lands," the Department must act in accordance with the provisions of Article X, Section 11, of the Florida Constitution, Chapter 253, Florida Statutes, and Chapter 18-21, Florida Administrative Code.
Section 373.427, Florida Statutes, authorizes the Department to adopt a rule "requiring concurrent application submittal and establishing a concurrent review procedure for any activity regulated under [Chapter 373, Part IV, Florida Statutes] that also requires . . . [p]ropriety authorization under [C]hapter 253 . . . to use submerged lands owned by the
[B]oard," such as the dock construction and dredging activity proposed by Petitioners in the instant case.
The Department has adopted such a rule, Rule
62-343.075, Florida Administrative Code, which provides, in pertinent part, as follows:
A single application shall be submitted and reviewed for activities that require an individual or standard general environmental resource permit under Part IV of Chapter 373, F.S., and a proprietary authorization under Chapters 253 . . ., F.S., to use sovereign submerged lands. In such cases, the application shall not be deemed complete, and the timeframes for approval or denial shall not commence, until all information required by applicable provisions of Part IV of Chapter 373, F.S., and proprietary authorization under Chapters
253 . . ., F.S., and rules adopted thereunder for both the environmental resource permit and the proprietary authorization is received.
No application under this section shall be approved until all the requirements of applicable provisions of Part IV of Chapter 373, F.S., and proprietary authorization under Chapters 253 . . ., F.S., and rules adopted thereunder for both the individual or standard general environmental resource permit and the proprietary authorization are met. The approval shall be subject to all permit conditions imposed by such rules.
For an application reviewed under this section for which a request for proprietary authorization to use sovereign submerged lands has been delegated to the Department
. . . to take final action without action by the Board of Trustees of the Internal Improvement Trust Fund, the Department . . . shall issue a consolidated notice of intent
to issue or deny the environmental resource permit and the proprietary authorization within 90 days of receiving a complete application under this section. . . .
. . . [I]f an administrative proceeding under Section 120.57, F.S., is properly requested on both the environmental resource permit and the proprietary authorization under this section, the review shall be conducted as a single consolidated administrative proceeding. If an administrative proceeding under Section 120.57, F.S., is properly requested on either the environmental resource permit or the proprietary authorization under this section, final agency action shall not be taken on either authorization until the administrative proceeding is concluded.
Appellate review of any consolidated order under this section is governed by the provisions of Section 373.4275, F.S.xvii . .
.
Before determining whether, and under what conditions, if any, it should grant a request for an environmental resource permit under Chapter 373, Part IV, Florida Statutes (made, as required by Rule 62-343.075, Florida Administrative Code, concurrently with a request for proprietary authorization to use state-owned submerged lands), the Department must evaluate the request in light of the following provisions of Section 373.414, Florida Statutes:
. . . [T]he [D]epartment shall require the applicant to provide reasonable assurance that state water quality standards applicable to waters as defined in s. 403.031(13) will not be violated and reasonable assurance that such activity in, on, or over surface waters or wetlands, as delineated in s. 373.421(1), is not contrary to the public interest. However, if such an activity significantly degrades or is within an Outstanding Florida Water, as provided by [D]epartment rule, the applicant must provide reasonable assurance that the proposed activity will be clearly in the public interest.
In determining whether an activity, which is in, on, or over surface waters or wetlands, as delineated in s. 373.421(1), and is regulated under this part, is not contrary to the public interest or is clearly in the public interest, . . . the [D]epartment shall consider and balance the following criteria:
Whether the activity will adversely affect the public health, safety, or welfare or the property of others;
Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;xviii
Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity;
Whether the activity will be of a temporary or permanent nature;
Whether the activity 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.
If the applicant is unable to otherwise meet the criteria set forth in this subsection, . . . the [D]epartment, in deciding to grant or deny a permit, shall consider measures proposed by or acceptable to the applicant to mitigate adverse effects that may be caused by the regulated activity. Such measures may include, but are not limited to, onsite mitigation, offsite mitigation, offsite regional mitigation, and the purchase of mitigation credits from mitigation banks permitted under s. 373.4136. It shall be the responsibility of the applicant to choose the form of mitigation. The mitigation must offset the adverse effects caused by the regulated
activity. . . .
. . . [T]he D]epartment, in deciding whether to grant or deny a permit for an activity regulated under this part shall consider the cumulative impacts upon surface water and wetlands, as delineated in s. 373.421(1), within the same drainage basin as defined in s. 373.403(9), of:
The activity for which the permit is sought.
Projects which are existing or activities regulated under this part which are under construction or projects for which
permits or determinations pursuant to
s. 373.421 or s. 403.914 have been sought.
Activities which are under review, approved, or vested pursuant to s. 380.06, or other activities regulated under this part which may reasonably be expected to be located within surface waters or wetlands, as delineated in s. 373.421(1), in the same drainage basin as defined in s. 373.403(9), based upon the comprehensive plans, adopted pursuant to chapter 163, of the local governments having jurisdiction over the activities, or applicable land use restrictions and regulations. . . .
"Reasonable assurance," as used in Section 373.414, Florida Statutes, "contemplates . . . a substantial likelihood that the project [for which the environmental resource permit is sought] will be successfully implemented." Metropolitan Dade
County v. Coscan Florida, Inc., 609 So. 2d 644, 648 (Fla. 3d DCA 1992).
Section 373.414, Florida Statutes, "is prohibitory.
It requires reasonable assurance before the project is started that water quality [and the public interest] will not be violated. It is not within the [Department's] province to allow [an applicant] to proceed with a project . . . with no idea as to what the effect on water quality [and the public interest] will be." Metropolitan Dade County v. Coscan Florida, Inc.,
609 So. 2d 644, 648 (Fla. 3d DCA 1992).
In determining the adverse effects of a proposed project, the Department should take into consideration not only
the direct impacts of the project, but also the "secondary" impacts caused or enabled by the project. See Florida Power Corporation v. Department of Environmental Regulation, 605 So. 2d 149, 152 (Fla. 1st DCA 1992); The Conservancy, Inc. v. A. Vernon Allen Builder, Inc., 580 So. 2d 772, 779 (Fla. 1st DCA
1991).
An applicant seeking an environmental resource permit "need not show any particular need or net public benefit as a condition of obtaining the permit." In cases where the proposed activity "would substantially degrade water quality or materially harm the natural environment, [however,] the fact that a substantial public need or benefit would be met by approving the project may be taken into consideration in balancing adverse environmental effects. This is the purpose of the public interest test and the seven statutory criteria." 1800 Atlantic Developers v. Department of Environmental Regulation, 552 So. 2d 946, 958 (Fla. 1st DCA 1989).
Where, as in the instant case, the Department issues a consolidated notice of intent to deny the environmental resource permit and proprietary authorization sought by the applicant, the applicant bears the ultimate burden (in a Section 120.57(1) hearing on such preliminary action) of demonstrating, by a preponderance of the evidence, entitlement to the requested permit and authorization. See Metropolitan Dade County v.
Coscan Florida, Inc., 609 So. 2d 644, 648 (Fla. 3d DCA 1992);
Pershing Industries, Inc., v. Department of Banking and Finance, 591
So. 2d 991, 994 (Fla. 1st DCA 1991); Cordes v. Department of Environmental Regulation, 582 So. 2d 652, 654 (Fla. 1st DCA
1991); Department of Transportation v. J.W.C., Co., 396 So. 2d 778, 787 (Fla. 1st DCA 1981); Department of Health and
Rehabilitative Services v. Career Service Commission, 289 So. 2d
412, 414-15 (Fla. 4th DCA 1974).
When the record evidence in the instant case is examined in light of the constitutional, statutory, and rule provisions cited above governing the issuance of environmental resource permits and proprietary authorizations it must be concluded that Petitioners have failed to meet their burden of proof.xix
They have not provided, through their evidentiary presentation, reasonable assurances that the Proposed Project would not be contrary to the "public interest," as that term is used in Section 373.414, Florida Statutes (relating to requests for environmental resource permits),xx and as it is defined in Rule 18-21.003(40), Florida Administrative Code (relating to requests for proprietary authorizations).
It does not appear from the evidentiary record in this case that there is a reasonable likelihood that the adverse effects of the Proposed Project, most notably those relating to the loss of seagrasses in the area Petitioners propose to dredge (which loss likely would be permanent), would be outweighed by the benefits of the Proposed Projectxxi or fully offset by the mitigation that Petitioners have offered.xxii
Accordingly, Petitioners' application for an environmental resource permit and for a lease to use sovereign submerged lands should be denied.xxiii
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Department issue a final order denying Petitioners' application for an environmental resource permit and for a lease to use sovereign submerged lands.
DONE AND ENTERED this 12th day of December, 1997, in Tallahassee, Leon County, Florida.
STUART M. LERNER
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(904) 488-9675 SUNCOM 278-9675
Fax Filing (904) 921-6847
Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1997.
ENDNOTES
1 Neither party expressed any objection when the undersigned announced, at the evidentiary hearing, that he intended to take such action.
2 In a footnote, the undersigned stated that, "[i]n view of foregoing, it [was] unnecessary to, and therefore the undersigned [would] not, rule on the timeliness of Petitioners' efforts to plead their entitlement to attorney's fees under Section 120.595(1), Florida Statutes."
3 Petitioners, however, have rejected the Department's suggestion that they abandon the Proposed Project entirely and instead dock the "Battered Bull" at one of the deep water marinas in Fort Lauderdale that can accommodate a vessel the size of their yacht.
4 Blue-green algae could be a sign of poor water quality or recent freshwater input.
5 This finding is based upon the expert testimony presented by the Department, which the undersigned has found to be more persuasive than the expert testimony to the contrary presented by Petitioners.
6 Short term periods of rapid turbidity can interfere with growth, even if water clarity is good the remainder of the time.
7 The construction of the Proposed Dock would not change the migratory patterns of these manatees. Manatees would still pass by the Project Site on their way to and from the power plants. The Proposed Dock's pilings are spaced sufficiently far apart to allow manatees to easily move between them.
8 The Department has the authority, pursuant to the Florida
Manatee Sanctuary Act (Section 370.12(2), Florida Statutes), to restrict the speed of motorboat traffic in certain areas of the state "where manatee sightings are frequent" and it can be generally assumed that manatees are found on a "regular or continuous basis." The purpose of imposing these speed restrictions is to protect manatees "from harmful collisions with motorboats or harassment."
9 Manatees do not venture out of the water.
10 The algae on these seagrasses will be ingested by the manatees, along with the seagrasses.
11 In the past, the Department has approved projects having a greater impact on manatee habitat than would the Proposed Project. These other projects, however, had a greater benefit to the general public than would the Proposed Project.
12 If there are no seagrasses anywhere around an area, it is likely that water clarity is not sufficient to sustain seagrasses.
13 There are two no entry zones in Broward County. One is in the area of the Port Everglades power plant. The other is in the area of the Fort Lauderdale power plant.
14 It is extremely difficult to predict the suitability of a particular relocation site for seagrasses because of environmental changes that may occur at the site.
15 The importance of seagrasses to the survival of manatees has been recognized by the Department in Rule 62N-22.003(1)(a)4, Florida Administrative Code.
16 Subsection (4) of Rule 18-21.004, Florida Administrative Code, prescribes "[s]tandards and [c]riteria for [d]ocking [f]acilities," but it applies only to "[o]wnership oriented facilities with three or more wetslips." The Proposed Dock would have only one wet slip.
17 Section 373.4275, Florida Statutes, provides, in pertinent part, as follows:
The final order issued under this section shall contain separate findings of fact and conclusions of law, and a ruling that individually addresses each authorization, permit, . . . and approval that was the subject of the review.
If a consolidated order includes proprietary authorization under chapter 253
. . . to use submerged lands owned by the Board of Trustees of the Internal Improvement Trust Fund for an activity for which the authority has been delegated to take final agency action without action of the [B]oard. . . ., the following additional provisions and exceptions to s. 373.114(1) apply:
The Governor and Cabinet shall sit concurrently as the Land and Water Adjudicatory Commission and the Board of Trustees of the Internal Improvement Trust Fund in exercising the exclusive authority to review the order;
The review may also be initiated by the Governor or any member of the Cabinet within
20 days after the rendering of the order in which case the other provisions of s. 373.114(1)(a) regarding acceptance of a request for review do not apply; and
If the Governor and Cabinet find that an authorization to use submerged lands is not consistent with chapter 253 . . ., any authorization, permit, . . . or approval authorized or granted by the consolidated order must be rescinded or modified or the proceeding must be remanded for further action consistent with the order issued under this section. . . .
18 "If the proposed project will have an adverse effect on the endangered species or its habitat, then the standard [described in subsection (1)(a)2 of Section 373.414, Florida Statutes] is violated. This is so even if the adverse effect is not so great as to jeopardize the continued existence of the species." Metropolitan Dade County v. Coscan Florida, Inc., 609 So. 2d 644, 650 (Fla. 3d DCA 1992).
19 It is undisputed that the environmental resource permit and proprietary authorization sought by Petitioners are required for the Proposed Project.
20 Because the Proposed Project would not "significantly degrade[] or [be] within an Outstanding Florida Water," Petitioners needed to provide reasonable assurances at the final hearing (in accordance with Section 373.414, Florida Statutes) that the Proposed Project would not be contrary to the public interest, not that it would be "clearly in the public interest."
21 While the Proposed Project would benefit certain members of the public, specifically Petitioners, to the extent that it would enable Petitioners to moor their yacht behind their Upland Property during the three month period each year that the yacht would be in the United States, the Proposed Project's benefits to the public would be minimal and not sufficient to overcome the Proposed Project's negative impacts.
22 Absent from the evidentiary record is persuasive evidence establishing the reasonable likelihood that the seagrasses Petitioners propose to transplant as part of their Revised
Mitigation Plan would grow on the Revised Mitigation Site and that therefore there would not be a net loss of seagrasses in the ICW in Broward County as a result of the Proposed Project.
23 Although the Department may have previously approved projects proposed by other applicants having seagrass impacts comparable to or greater than those involved in the instant case, it has not been shown that, as is the situation in the instant case, the public benefits of these other projects and the mitigation offered by their proponents were insufficient to overcome the projects' seagrass impacts and to justify approval of the projects. In any event, even if such proof had been submitted, the outcome of the instant case would still be the same. The Department is not required to approve a project that does not meet the criteria for approval simply because, on previous occasions, in derogation of its responsibility, it erroneously approved projects proposed by other applicants with similar adverse impacts. To the contrary, it must avoid repeating any such mistakes it may have made in the past.
COPIES FURNISHED:
Harry A. Stewart, Esquire Joan T. Dwoskin, Esquire
Akerman, Senterfitt and Eidson, P.A. Post Office Box 231
Orlando, Florida 32801
Peter Cocotos
Douglas H. MacLaughlin Assistant General Counsel
Department of Environmental Protection 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Virginia B. Wetherell, Secretary Douglas Building
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
F. Perry Odom General Counsel
Department of Environmental Protection 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Office of the General Counsel
Department of Environmental Protection Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
i Neither party expressed any objection when the undersigned announced, at the evidentiary hearing, that he intended to take such action.
ii In a footnote, the undersigned stated that, "[i]n view of foregoing, it [was] unnecessary to, and therefore the undersigned [would] not, rule on the timeliness of Petitioners' efforts to plead their entitlement to attorney's fees under Section 120.595(1), Florida Statutes."
iii Petitioners, however, have rejected the Department's suggestion that they abandon the Proposed Project entirely and instead dock the "Battered Bull" at one of the deep water marinas in Fort Lauderdale that can accommodate a vessel the size of their yacht.
iv Blue-green algae could be a sign of poor water quality or recent freshwater input.
v This finding is based upon the expert testimony presented by the Department, which the undersigned has found to be more persuasive than the expert testimony to the contrary presented by Petitioners.
vi Short term periods of rapid turbidity can interfere with growth, even if water clarity is good the remainder of the time.
vii The construction of the Proposed Dock would not change the migratory patterns of these manatees. Manatees would still pass by the Project Site on their way to and from the power plants.
The Proposed Dock's pilings are spaced sufficiently far apart to allow manatees to easily move between them.
viii The Department has the authority, pursuant to the Florida Manatee Sanctuary Act (Section 370.12(2), Florida Statutes), to restrict the speed of motorboat traffic in certain areas of the state "where manatee sightings are frequent" and it can be generally assumed that manatees are found on a "regular or continuous basis." The purpose of imposing these speed restrictions is to protect manatees "from harmful collisions with motorboats or harassment."
ix Manatees do not venture out of the water.
x The algae on these seagrasses will be ingested by the manatees, along with the seagrasses.
xi In the past, the Department has approved projects having a greater impact on manatee habitat than would the Proposed Project. These other projects, however, had a greater benefit to the general public than would the Proposed Project.
xii If there are no seagrasses anywhere around an area, it is likely that water clarity is not sufficient to sustain seagrasses.
xiii There are two no entry zones in Broward County. One is in the area of the Port Everglades power plant. The other is in the area of the Fort Lauderdale power plant.
xiv It is extremely difficult to predict the suitability of a particular relocation site for seagrasses because of environmental changes that may occur at the site.
xv The importance of seagrasses to the survival of manatees has been recognized by the Department in Rule 62N-22.003(1)(a)4, Florida Administrative Code.
xvi Subsection (4) of Rule 18-21.004, Florida Administrative Code, prescribes "[s]tandards and [c]riteria for [d]ocking [f]acilities," but it applies only to "[o]wnership oriented facilities with three or more wetslips." The Proposed Dock would have only one wet slip.
xvii Section 373.4275, Florida Statutes, provides, in pertinent part, as follows:
The final order issued under this section shall contain separate findings of fact and conclusions of law, and a ruling that individually addresses each authorization, permit, . . and approval that was the subject of the review.
If a consolidated order includes proprietary authorization under chapter 253 . . . . to use submerged lands owned by the Board of Trustees of the Internal Improvement Trust Fund for an activity for which the authority has been delegated to take final agency action without action of the [B]oard. ,
the following additional provisions and exceptions to s. 373.114(1) apply:
The Governor and Cabinet shall sit concurrently as the Land and Water Adjudicatory Commission and the Board of Trustees of the Internal Improvement Trust Fund in exercising the exclusive authority to review the order;
The review may also be initiated by the Governor or any member of the Cabinet within 20 days after the rendering of the order in which case the other provisions of s. 373.114(1)(a) regarding acceptance of a request for review do not apply; and
If the Governor and Cabinet find that an authorization to use submerged lands is not consistent with chapter 253 . . ., any authorization, permit, . . . or approval authorized or granted by the consolidated order must be rescinded or modified or the proceeding must be remanded for further action consistent with the order issued under this section.
. . .
xviii "If the proposed project will have an adverse effect on the endangered species or its habitat, then the standard [described in subsection (1)(a)2 of Section 373.414, Florida Statutes] is violated. This is so even if the adverse effect is not so great
as to jeopardize the continued existence of the species." Metropolitan Dade County v. Coscan Florida, Inc., 609 So. 2d 644, 650 (Fla. 3d DCA 1992).
xix It is undisputed that the proprietary authorization and environmental resource permit sought by Petitioners are required for the Proposed Project.
xx Because the Proposed Project would not "significantly degrade[] or [be] within an Outstanding Florida Water," Petitioners needed to provide reasonable assurances at the final hearing (in accordance with Section 373.414, Florida Statutes) that the Proposed Project would not be contrary to the public interest, not that it would be "clearly in the public interest."
xxi While the Proposed Project would benefit certain members of the public, specifically Petitioners, to the extent that it would enable Petitioners to moor their yacht behind their Upland Property during the three month period each year that the yacht would be in the United States, the Proposed Project's benefits to the public would be minimal and not sufficient to overcome the Proposed Project's negative impacts.
xxii Absent from the evidentiary record is persuasive evidence establishing the reasonable likelihood that the seagrasses Petitioners propose to transplant as part of their Revised Mitigation Plan would grow on the Revised Mitigation Site and that therefore there would not be a net loss of seagrasses in the ICW in Broward County as a result of the Proposed Project.
xxiii Although the Department may have previously approved projects proposed by other applicants having seagrass impacts comparable to or greater than those involved in the instant case, it has not been shown that, as is the situation in the instant case, the public benefits of these other projects and the mitigation offered by their proponents were insufficient to overcome the projects' seagrass impacts and to justify approval of the projects. In any event, even if such proof had been submitted, the outcome of the instant case would still be the same. The Department is not required to approve a project that does not meet the criteria for approval simply because, on previous occasions, in derogation of its responsibility, it erroneously approved projects proposed by other applicants with similar adverse impacts. To the contrary, it must avoid repeating any such mistakes it may have made in the past.
| Issue Date | Proceedings |
|---|---|
| Mar. 09, 1998 | Notice of Appeal filed. (filed by: Donald Flynn ) |
| Feb. 23, 1998 | (From A. Koski, H. Stewart) Stipulation for Substitution of Counsel filed. |
| Feb. 17, 1998 | Final Order filed. |
| Jan. 29, 1998 | Respondent`s Response to Petitioner`s Written Exceptions to the Recommended Order filed. |
| Jan. 09, 1998 | Petitioner`s Written Exceptions to the Recommended Order filed. |
| Dec. 31, 1997 | (Respondent) Order (filed via facsimile). |
| Dec. 12, 1997 | Recommended Order sent out. CASE CLOSED. Hearing held 08/26-27/97. |
| Nov. 20, 1997 | (Petitioner`s Proposed Recommended Order on Disk) Disk filed. |
| Nov. 18, 1997 | Respondent`s Proposed Recommended Order; Disk filed. |
| Nov. 13, 1997 | Notice of Filing; Petitioner`s Proposed Recommended Order filed. |
| Nov. 12, 1997 | Respondent`s Proposed Recommended Order filed. |
| Nov. 06, 1997 | Order sent out. (Petitioners` renewed request for leave to amend original petition is denied; Respondent`s pending motion is granted) |
| Nov. 04, 1997 | Department of Environmental Protection`s Response to Order Directing Response to Petitioner`s Renewed Request for Leave to Amend Their Petition (filed via facsimile). |
| Oct. 23, 1997 | Order Directing Response sent out. (Respondent to file response within 12 days as to the Petitioners renewed request for leave to amend their petition) |
| Oct. 22, 1997 | Donald and Beverly Flynn`s response to order directing response to department of Environmental Protection`s motion to dismiss amended petition filed. |
| Oct. 14, 1997 | Order Directing Response sent out. (Petitioner`s to respond to Respondent`s motion by 10/20/97) |
| Oct. 10, 1997 | (Respondent) Motion to Dismiss Petitioner`s Amended Petition filed. |
| Oct. 02, 1997 | (Petitioners) Amended Petition Challenging Consolidated Notice of Denial of Environmental Resource Permit and Lease to Use Sovereign Submerged Lands and Request for Costs and Attorney`s Fees filed. |
| Sep. 29, 1997 | (6 Volumes) Transcript filed. |
| Sep. 26, 1997 | Letter to A. Cole from Harry Stewart (RE: delivery of transcript/no enclosures) (filed via facsimile). |
| Sep. 24, 1997 | (Petitioners) Exhibits filed. |
| Sep. 12, 1997 | Video Hearing Held; see case file for applicable time frames. |
| Sep. 02, 1997 | (Petitioners) Notice of Taking Deposition Duces Tecum filed. |
| Aug. 29, 1997 | Order Scheduling Continuation of Final Hearing sent out. (video hearing set for 9/12/97; 9:00am; Ft. Lauderdale & Tallahassee) |
| Aug. 26, 1997 | Hearing Partially Held, continued to date not certain. |
| Aug. 21, 1997 | (From D. MacLaughlin) Notice of Appearance of Co-Counsel for Department of Environmental Protection filed. |
| Aug. 19, 1997 | Order Denying Petitioners` Motion for Change of Hearing Format sent out. |
| Aug. 19, 1997 | Respondents Exhibits ; (Petitioners) Exhibits ; Petitioner`s Witness and Exhibit List (untitled) filed. |
| Aug. 15, 1997 | (Petitioners) Notice of Telephone Hearing on Petitioners` Motion to change Hearing Format (8-15-97; 2:00pm) (filed via facsimile). |
| Aug. 15, 1997 | Petitioners` Motion for Change of Hearing Format (filed via facsimile). |
| Jul. 29, 1997 | (Respondent) Notice of Taking Deposition Duces Tecum filed. |
| Jul. 07, 1997 | (From P. Cocotos) Notice of Appearance of Counsel for Department of Environmental Protection filed. |
| Jun. 27, 1997 | Department of Environmental Protection`s Notice of Propounding (Separate) Interrogatories to Petitioners, Donald and Beverly Flynn; Department of Environmental Protection`s First Request for Production of Documents filed. |
| Jun. 05, 1997 | Amended Notice of Hearing by Video Teleconference (Specifying Tallahassee Location) sent out. (hearing set for Aug. 26-27, 1997; 9:15am; Ft. Lauderdale & Tallahassee) |
| May 13, 1997 | Notice of Hearing by Video Teleconference sent out. (Video Hearing set for August 26-27, 1997; 9:15am; Tallahassee & Ft. Lauderdale) |
| Apr. 10, 1997 | Department`s Response to Order Regarding Scheduling (filed via facsimile). |
| Mar. 27, 1997 | Order sent out. CASE REOPENED, parties to file response regarding hearing scheduling within 14 days. |
| Mar. 21, 1997 | Order of Remand (from DEP) filed. |
| Mar. 21, 1997 | Transcripts and Exhibits Returned from the Agency filed. |
| Feb. 06, 1997 | Recommended Order sent out. CASE CLOSED. Hearing held 12/03/96. |
| Jan. 30, 1997 | DEP`s Proposed Recommended Order on Motion to Dismiss filed. |
| Jan. 30, 1997 | Petitioners` Proposed Recommended Order on Respondent`s Motion to Dismiss filed. |
| Jan. 13, 1997 | Transcript of Proceedings filed. |
| Dec. 06, 1996 | Order sent out. (10/30/96 Notice of Hearing sent out is vacated) |
| Dec. 03, 1996 | Final Telephonic Hearing Held; for applicable time frames, refer to CASE STATUS form stapled on right side of Clerk's Office case file. |
| Dec. 02, 1996 | Notice of Filing; Affidavit of V. Casini with a copy of Respondent`s Notice of Denial dated 8/27/96; Affidavit of K. Skibicki; Affidavit of J. Adair with copies of portion of "Joint application for Environmental Resource Permit/Authorization to use state |
| Nov. 27, 1996 | (Petitioners) Notice of Filing; Affidavit of V. Casini with a copy of Respondent`s Notice of Denial, dated 8/27/96; Affidavit of K. Skibicki; Affidavit of J. Adair filed. |
| Nov. 22, 1996 | (Respondent) Index to Exhibits and Notice of Filing; Exhibits filed. |
| Nov. 14, 1996 | Order Granting Continuance sent out. (evidentiary hearing cancelled & reset for 12/3/96) |
| Nov. 14, 1996 | Notice of Evidentiary Hearing (On Motion to Dismiss) sent out. (telephonic conference call set for 12/3/96; 9:30am) |
| Nov. 13, 1996 | Petitioner`s Motion for Postponement of Hearing Date (filed via facsimile). |
| Oct. 30, 1996 | Notice of Hearing sent out. (hearing set for Feb. 27-28, 1997; 9:00am; Ft. Lauderdale; motion hearing set for 11/21/96) |
| Oct. 30, 1996 | Order Requiring Prehearing Stipulation sent out. |
| Oct. 28, 1996 | Order sent out. (evidentiary telephonic hearing on issue of Petitioners` petition being dismissed is set for 11/21/96; 9:30am) |
| Oct. 25, 1996 | Petitioners` Response in Opposition to Motion to Dismiss filed. |
| Oct. 18, 1996 | Agreed Response to Initial Order filed. |
| Oct. 16, 1996 | Order sent out. (Petitioners to file response to motion to dismiss by 10/28/96) |
| Oct. 15, 1996 | (Respondent) Motion to Dismiss Petition and Memorandum of Law in Support Thereof filed. |
| Oct. 11, 1996 | Initial Order issued. |
| Oct. 07, 1996 | Request for Assignment of Hearing Officer and Notice of Preservation of Record; Agency Consolidated Notice of Denial; Petition Challenging Consolidated Notice of Denial of Environmental Resource Permit and Lease to Use Sovereign Submerged Lands filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 13, 1998 | Agency Final Order | |
| Dec. 12, 1997 | Recommended Order | Applicant failed to show entitlement to permit and lease to use sovereign submerged lands for destruction of residential dock. |
| Mar. 21, 1997 | Remanded from the Agency | |
| Feb. 06, 1997 | Recommended Order | Equitable considerations mandated that petition filed nine days late not be dismissed on the grounds of untimeliness. |
