STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL L. GUTTMANN, )

)

Petitioner, )

)

vs. ) Case No. 00-2524

) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION and ADR OF )

PENSACOLA, INC., )

)

Respondents. )

)

RECOMMENDED ORDER ON REMAND

Pursuant to notice, this matter was heard before the Division of Administrative Hearings on October 23, 2001, by video teleconference by its assigned Administrative Law Judge, Donald R. Alexander.

APPEARANCES

For Petitioner: Michael L. Guttmann, Esquire

314 South Baylen Street, Suite 201 Pensacola, Florida 32501-5949

For Respondent: Charles T. Collette, Esquire (Department) Lucinda R. Roberts, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

For Respondent: David A. Sapp, Esquire (ADR) 1017 North 12th Avenue

Pensacola, Florida 32501-3306

STATEMENT OF THE ISSUE

The issue is whether ADR of Pensacola, Inc.'s proposed mitigation measures offset the adverse impacts of a dock project on the public interest criteria in Section 403.918(2)(a)2., 4., 5., and 7., Florida Statutes (1991).

PRELIMINARY STATEMENT

This matter began on May 15, 2000, when Respondent, Department of Environmental Protection, issued its Consolidated Notice of Intent to Issue Wetland Resource Permit and Sovereign Submerged Lands Authorization to Respondent, ADR of Pensacola, Inc. The permit and authorization allow the construction of a 30-slip docking facility on Big Lagoon in Escambia County, Florida.

After a challenge to the proposed agency action was filed by Petitioner, Michael L. Guttmann, hearings were conducted on November 30 and December 13, 2000. In a Recommended Order entered on February 28, 2001, the undersigned recommended that the application be denied on the ground that the proposed project was contrary to the public interest within the meaning of Section 403.918(2)(a)2., 4., 5., and 7., Florida Statutes

(1991).

On April 13, 2001, the Department of Environmental Protection entered its Order of Remand and requested that

further proceedings be held to allow the applicant "an opportunity to propose mitigation measures acceptable to DEP to offset the adverse impacts of the dock project on the public interest criteria." By Order dated April 20, 2001, the case was reopened for that limited purpose. The matter was then temporarily abated pending an appeal of the Order of Remand by Petitioner. That appeal was later dismissed for lack of jurisdiction. Guttmann v. Dep't of Envir. Prot. and ADR of Pensacola, Inc., 787 So. 2d. 977 (Fla. 1st DCA 2001).

By Notice of Hearing dated August 1, 2001, a hearing was scheduled by video teleconference on October 23, 2001, with the parties participating in Pensacola and Tallahassee, Florida.

At the hearing, Petitioner presented the testimony of Dr. Kenneth L. Heck, Jr., a marine biologist and ecologist who was accepted as an expert, and James Veal, an architect who resides near the project site. Also, he offered Petitioner's

Exhibits 1 and 2, which were received in evidence. Respondent, ADR of Pensacola, Inc., presented the testimony of Terrence C. Bosso, an environmental consultant who was accepted as an expert, and Dr. Joe A. Edminsten, an environmental consultant who was accepted as an expert. Also, Respondent offered Respondent's Exhibits 1-3, 6, and 8, which were received in evidence. Respondent, Department of Environmental Protection,

presented the testimony of Larry O'Donnell, environmental manager for permitting for the Pensacola District Office, who was accepted as an expert. Finally, the undersigned took official recognition of Section 403.918, Florida Statutes (1991), which governs this proceeding, and Part III, Chapter 62- 312, Florida Administrative Code, which contains mitigation standards for projects in Escambia County, Florida.

A Transcript of the hearing (two volumes) was filed on December 6, 2001. By agreement of the parties, the time for filing proposed findings of fact and conclusions of law was extended to January 15, 2002. The same were timely filed by the parties, and they have been considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Background

   
   

   1. This matter is on remand from Respondent, Department of Enviromental Protection (DEP), for further proceedings to allow Respondent, ADR of Pensacola, Inc. (applicant), "an opportunity to propose mitigation measures acceptable to DEP to offset adverse impacts of the dock project on the public interest criteria [in Section 403.918(2)(a), Florida Statutes (1991)]."

      The applicant proposes to construct a 442 foot x 4 foot access pier with seventeen 30 foot x 1.5 foot finger piers, thirteen 40 foot x 1.5 foot finger piers, and a 74 foot x 1.5 foot terminal platform to form a 30-slip docking facility on Big Lagoon, a Class III water in Escambia County, Florida. The application is opposed by Petitioner, Michael L. Guttmann, who resides within a mile of the project site.

   2. In a Recommended Order entered on February 28, 2001, the undersigned found that "the proposed activity will adversely affect fish and their habitat by virtue of the applicant's docking 30 boats in a small area just beyond a healthy seagrass area" [Section 403.918(2)(a)2.]; that "the proposed activity will adversely affect marine productivity because the fish nursery habitat will decline through a further thinning out of the seagrass colony in Big Lagoon" [Section 403.918(2)(a)4.]; that "the activity is permanent in nature" [Section 403.918(2)(a)5.]; and that "the 'current conditions' and 'relative value' of [the] functions [of seagrass] will be negatively impacted if the dock is constructed" [Section 403.918(2)(a)7.]. Based on these expected adverse impacts, the undersigned recommended that the application be denied on the ground that the project was contrary to the public interest.

   3. Because DEP had made a preliminary determination that the project complied with all applicable criteria, and its staff had presented evidence in support of the application at the hearing, DEP concluded in an Order of Remand dated April 13, 2001, that "it would not be appropriate to enter a final order denying the requested permit and authorization without first affording ADR an administrative forum for proposing mitigation measures for consideration by DEP." (Order of Remand, page 17). The applicant then filed proposed mitigation measures, as later amended, and these proceedings followed.

2. Mitigation measures

1. The negative impacts which formed the basis for finding that the project would be contrary to the public interest were secondary in nature. That is to say, the facility itself (the dock, platform, and pilings) will not cause the negative impacts described in the Recommended Order. Rather, unless appropriate mitigation measures are implemented, secondary impacts associated with additional boat traffic would likely cause increased turbidity (and a diminution of water clarity in the areas where seagrass currently thrives) due to wave action from the boats, and the boat propellers would likely cause the scarring of seagrass which grows near the shoreline. Thus, the secondary impacts were found to have an adverse impact on fish

   and habitat, the fishing and marine productivity in the area, and the current condition and relative value of functions being performed by the areas.

2. To mitigate the secondary impact of propeller scarring, applicant proposes "to place [8] pilings on 20 feet centers on the southernmost margins [of the project] to further deter boats from accessing across and navigating in the seagrasses in the vicinity of the proposed dock." In addition, the pilings will have signage stating "NO BOATING BEYOND THIS POINT."

3. The piling system will consist of four pilings placed

   
   

   20 feet apart on each side of the dock along the outer edge of the seagrass bed (approximately 175 to 200 feet from the shoreline) and which will parallel the shoreline. The pilings (with signage) are designed to deter boaters from entering the area where the seagrass thrives and scarring the grass with their boat propellers.

4. This type of barrier (pilings with signage) has been successfully used in other areas around the State to mitigate concerns about encroachment into shallow areas by boat traffic. It is designed to deter not only members of the general public, but also boaters docking at the facility.

5. Similar pilings have been placed at a project known as Landfall which is located on the north shore of Big Lagoon

   around a mile away. Landfall has 50 boat slips and utilizes concrete piling structures to provide a visible and psychological barrier for the seagrass beds. Like the applicant's proposal, Landfall's dock extends a substantial distance from the shoreline (550 feet), and boats are moored beyond the seagrass beds. That marina has been in place for more than a decade, and the more persuasive evidence shows that the pilings have had a positive impact on the protection of seagrass beds.

6. To mitigate the turbidity (or decline in water clarity) caused by wave action from the boats, the applicant proposes to place "a[n] [aluminum] baffle system along the outermost slips (waterward side) of the facility." The system will be installed approximately 400 feet from the shoreline where the water reaches a depth of 17 feet, will be 78-feet long, and is designed to eliminate or minimize wave energy from stirring and re-suspending shoreline sediment. The baffles will be 8 feet wide aluminum slats, 6 feet long, and spaced 8 feet apart to allow the re-flow of water. However, the baffles will disperse the wave action over a much greater area than the actual length of the system. Besides dispersing the wave action from boats using the dock, the system will also minimize the wave action created by boats traversing the main channel. Currently, no

   such protection is afforded the shoreline from boats used by the general public or other Big Lagoon residents.

7. Once the baffle system is installed, it will become colonized with sessils (barnacles and oysters), which should provide a new habitat for fish in the area.

8. The evidence shows that similar baffle systems have been used in other areas of the State, especially in South Florida along the Intercoastal Waterway. There, the systems have successfully minimized the wave action on shorelines which are caused by the numerous boats using that waterway.

9. The more persuasive evidence supports a finding that the mitigation plan, as proposed by the applicant, will likely be successful and will offset the expected adverse impacts described in the Recommended Order of February 28, 2001. Therefore, the applicant has given reasonable assurance that the proposed mitigation measures will offset the adverse impacts of the project.

10. Through testimony of an expert witness and argument advanced in his Proposed Recommended Order, Petitioner contends that the mitigation plan is flawed and does not offset the adverse impacts with any degree of reasonable certainty. These contentions have been carefully considered but are rejected as being contrary to the more credible evidence.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2001).

12. As the party proposing mitigation measures, the applicant bears the burden of providing reasonable assurances that the measures offset the adverse impacts of the project. Rule 62-312.340, Florida Administrative Code.

13. The role of an administrative law judge in determining the sufficiency of mitigation measures is limited to resolving "any factual disputes on mitigation." Collier Develop. Corp. v. State, Dep't of Envir. Reg., 592 So. 2d 1107, 1109 (Fla. 2d DCA 1991). This is because "DEP has the exclusive final authority to determine the sufficiency of the proposed seagrass mitigation," and the "'findings' related to the sufficiency of mitigation are essentially conclusions of law and not binding on DEP." Save Anna Maria, Inc. v. Dep't of Trans. et al., 700 So. 2d 113, 116 (Fla. 2d DCA 1997). See also 1800 Atlantic Developers v. Dep't of Envir. Reg., 552 So. 2d 946, 955 (Fla. 1st DCA 1989)("It is the responsibility of [DEP], not the [administratative law judge], to define mitigative measures that would be sufficient to offset the perceived adverse effects of

    the dredging and filling contemplated by the project in accord with the statutory criteria for determining public interest.")

14. "Mitigation" is defined as "an action or series of actions that will offset the adverse impacts on the waters of the state that cause a proposed dredge and fill project to be not permittable." Rule 62-312.310(6), Florida Administrative Code. "The goal of the mitigation proposal shall be to offset the expected adverse impacts of the project that have resulted in the project being deemed unpermittable such that the resulting project with mitigation is not contrary to the public interest." Rule 62-312.330, Florida Administrative Code. In considering these measures, each proposal "must be evaluated on a case by case basis," including the "likelihood that the mitigation will be successful." Rule 62-312.340, Florida Administrative Code.

15. In the Recommended Order entered on February 28, 2001, the undersigned concluded that the project was contrary to the public interest because it adversely impacted the public interest criteria under Section 403.918(2)(a)2., 4., 5., and 7., Florida Statutes (1991).1 Those provisions require that the Department consider and balance the following factors:

    2. Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;

    1. Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity;

       
       

    2. Whether the activity will be of a temporary or permanent nature;

    
    

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

    
    

16. Rule 62-312.060(10), Florida Administrative Code, provides that "[w]hen the Department determines that a project, as submitted or modified, fails to meet the criteria in Sections 403.918(1) and (2)(a)1.-7. and 403.919, F.S., the applicant may propose mitigation measures to the Department as provided in Chapter 62-312, Part III, F.A.C." The purpose of this proceeding is to consider the applicant's mitigation measures.

17. The more persuasive evidence supports a conclusion that the applicant's mitigation plan offers reasonable assurance that the expected adverse effects of the project will be offset, and that the project will not be contrary to the public interest. Therefore, the application should be approved.

18. In reaching this conclusion, the undersigned has considered Petitioner's contention that the mitigation measures fail to address the effects of wave action on other areas of Big Lagoon. However, the applicant only has the responsibility of mitigating impacts in the area of the project site, and not the

    entire 13 miles of Big Lagoon. Likewise, concerns about lifts, paint leaching, future monitoring of the site, and full-time pumpout station assistance have already been addressed in the Recommended Order in the form of recommended conditions, and they need not be incorporated into the mitigation plan, which addresses only turbidity and prop scarring. Petitioner also contends that no scientific studies have been conducted as to the reliability of pilings and baffles, and therefore these measures are suspect. The more persuasive evidence, however, reflects that these measures have been successfully used on projects not only in other areas of the State, but also at a similarly-sized project no more than a mile away. The Department has had an opportunity to assess the use of pilings at the latter project for more than a decade. As to this contention, the statute only requires reasonable assurance, not scientific certainty.

19. Finally, as noted in the Recommended Order, it is fair to infer that Petitioner's and his neighbors' primary concern is the proposed construction by the applicant of a fairly large condominium in an area where single-family homes are the norm. Understandably, they are opposed to such a project. This proceeding, however, is concerned only with the dock, and not

with the wisdom of placing a condominium next to single-family homes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Environmental Protection enter a final order approving the application of ADR of Pensacola, Inc., as modified by the proposed mitigation plan.

DONE AND ENTERED this 1st day of February, 2002, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(850) 488-9675, SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2002.

ENDNOTE

1/ Because the project is located within the jurisdiction of the Northwest Florida Water Management District, even though the statute has been repealed, Section 403.918(2)(a), Florida Statutes (1991), continues to be the governing statutory basis for the public interest criteria applicable to the project. See Section 373.4145(1)(b), Florida Statutes (2001).

COPIES FURNISHED:

Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Michael L. Guttmann, Esquire

314 South Baylen Street, Suite 201 Pensacola, Florida 32501-5949

Charles T. Collette, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

David A. Sapp, Esquire 1017 North 12th Avenue

Pensacola, Florida 32501-3306

Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

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 render a final order in this matter.

Docket for Case No: 00-002524

Orders for Case No: 00-002524