STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BERNARD SPINRAD AND MARION SPINRAD,
vs.
Petitioners,
Case No. 13-2254
WILLIAM GUERRERO, CHRISTINA BANG, a/k/a CHRISTINA GUERRERO, AND DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Respondents.
/
RECOMMENDED ORDER
Pursuant to notice, a final hearing was held in this case on November 18-21, 2013 and March 31-April 4, 2014, by video teleconference at sites in Tallahassee, Florida and in Marathon, Florida, before E. Gary Early, a designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioners: Patricia M. Silver, Esquire
John W. Annesser, Esquire Silver Law Group
Post Office Box 710 Islamorada, Florida 33036
For Respondent, Department of Environmental Protection:
Brynna J. Ross, Esquire Patricia E. Comer, Esquire
Department of Environmental Protection Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
For Respondents William Guererro and Christina Bang, a/k/a Christina Guerrero:
Luna E. Phillips, Esquire Deborah K. Tyson, Esquire
Gunster, Yoakley and Stewart, P.A. Suite 1400
450 East Las Olas Boulevard Fort Lauderdale, Florida 33301
John J. Fumero, Esquire Nason, Yeager, Gerson, White,
and Lioce, P.A. Suite 2201
7700 Congress Avenue
Boca Raton, Florida 33487 STATEMENT OF THE ISSUE
The issue to be determined is whether the applicants, William Guererro and Christina Bang, a/k/a Christina Guerrero (Applicants), are entitled to issuance of a Consolidated Environmental Resource Permit and State Lands Approvals for various structures on the Applicants’ property at 58458 Overseas Highway, Marathon, Florida.
PRELIMINARY STATEMENT
On February 20, 2013, the Department of Environmental Protection (DEP) issued a proposed authorization for “repair of the shoreline, repair of the NE and SW jetties, replacement of
an earthen boat ramp with a concrete boat ramp, repair and replacement of a wood dock, replacement of mooring piles, removal of the mid-jetty extension, and maintenance dredging of an existing channel (the Permit).”1/
The regulatory history preceding the issuance of the Permit is lengthy and complex. As a result, Respondents sought to have the petition filed by the Petitioners, Bernard Spinrad and Marion Spinrad (Petitioners), dismissed on the grounds that Petitioners had waived their right to challenge some or all of the Permit, suggesting that the regulatory approvals were nothing more than a modification of previously revoked agency action, and that the petition was untimely. A thorough recitation of the history of this case, and analysis of the effect of previous action related thereto, was provided in the July 23, 2013, Order Denying Respondent’s Motions to Dismiss and Motion for Attorney’s Fees and Costs,2/ which is hereby adopted in its entirety as though fully set forth herein, and shall be considered as part of this Recommended Order. Since this is a de novo proceeding, designed to formulate agency action and not to review preliminary action previously taken, further discussion of the history of this proceeding is unnecessary.
On or about March 5, 2013, Petitioners timely filed their Petition for Administrative Hearing. The DEP dismissed the Petition on April 26, 2013, with leave to amend. Petitioners
filed an Amended Petition for Formal Administrative Hearing on May 13, 2013. That Amended Petition was referred to the Division of Administrative Hearings on June 14, 2013.
In the response to the Initial Order, which was joined by all parties, the parties estimated that the hearing would take no more three days to complete. Due to the facially simple nature of the issues, the hearing was initially scheduled to be held on August 26 and 28, 2013. The hearing was continued several times, and was finally scheduled for four days, November 18-21, 2013, in Marathon, Florida.
On September 20, 2013, the DEP provided notice of an additional basis for its proposed agency action, that being that the proposed activities are exempt from the need to obtain an Environmental Resource Permit because the activities will have only minimal or insignificant individual or cumulative adverse impacts on water resources grounds as set forth in section 373.406(6), Florida Statutes. This matter being de novo in nature, the hearing proceeded on the issues noticed.3/
Prior to the commencement of the final hearing, the parties engaged in a vigorous motion practice. Due to the sheer volume of the motions, their disposition will not be recited here, but may be determined by reference to the docket in this case.4/
The final hearing was commenced on November 18, 2013. At the final hearing, the undersigned expressed his opinion that
the general permit for the boat ramp would be subject to the modified burden of proof established in section 120.569(2)(p), Florida Statutes, but that the exemptions for the dock, channel dredging, and work to the southwest jetty, northeast jetty, and mid-bulkhead would proceed with the burden on Applicants to demonstrate that the structures were exempt from regulation. It was not disputed that the burden to demonstrate entitlement to proprietary approvals required for each of the project components rested with Applicants. To minimize any confusion, the case proceeded with Applicants presenting a full case-in- chief to demonstrate entitlement to all permits, exemptions, and approvals, with the burden of proof to be determined in accordance with applicable law. The applicability of the burden of proof provisions of section 120.569(2)(p) to structures authorized by exemption rather than by permit is discussed in the Conclusions of Law herein.
The final hearing was not completed within the time allotted, and was thereafter scheduled to reconvene for an additional five days commencing on January 6, 2014.
On December 12, 2013, Applicants filed a Notice of Filing Proposed Changes to the Pending Agency Action, by which they agreed to several permit conditions, and proposed conforming modifications to the “Background Facts” of the proposed agency
action. This matter being de novo in nature, the proposed changes shall be considered herein.
On January 6, 2014, as a result of an emergency telephonic conference, the parties agreed to a continuance of the final hearing to accommodate the undersigned. The final hearing was thereafter scheduled for March 31 through April 4, 2014, and was held as scheduled.
The following exhibits were received in evidence by stipulation of the parties: DEP Exhibits 1, 11, 22, 23, 26, 80,
and 95; Guerrero Exhibit 474; and Spinrad Exhibits 31 and 32.
Applicants called as witnesses: Gerald Ward, a professional engineer, who was tendered and accepted as an expert in water resources and coastal engineering; Dr. Michael Dennis, who was tendered and accepted as an expert in biology, ecology, water quality as related to natural resources, water resources, and aerial photo-interpretation; and William Guerrero, the property owner and applicant. Guerrero Exhibits 401-407, 412-414, 418,
422, 424, 434-435,5/ 453, 469, 474, 478-479, 494, 497-499, 501-
502, 506-508, 511, and 522-525 were received in evidence. Guerrero Exhibits 522 and 523 consist of the deposition transcript and exhibits of Bernard Spinrad, and Guerrero Exhibits 524 and 525 consist of the deposition transcript and exhibits of Marien Spinrad, both of whom are parties to this proceeding. Guerrero Exhibits 418, 424, 469, and 507 were
offered but not received in evidence. Guerrero Exhibit 430 was offered but not received in evidence, and was thereafter subject to a proffer. Official recognition was requested and granted for Guerrero Exhibits 410 and 411, consisting of, respectively, DEP Emergency Final Order No. 06-0010 and DEP Emergency Final Order No. 06-0143.
Respondent, DEP called as witnesses: Jon Iglehart, Director of the DEP South District Regulatory Office (the proffer for
Mr. Iglehart as contained in the DEP's prehearing stipulation is biology, ecology, water quality and navigation)6/; Ralph Clark, who was tendered and accepted as an expert in coastal engineering with limited expertise in photo-interpretation based on experience; and Rod Maddox, chief of the DEP Division of State Lands, Bureau of Survey and Mapping. DEP Exhibits 10, 106, 110, 429, and 453 were received in evidence. DEP Exhibits
14 and 15 were offered but not received in evidence.
Petitioners called as witnesses: Lucy Blair, who at all times pertinent was an environmental administrator in the DEP Environmental Resource Permitting section; Gustavo Rios, environmental administrator for the DEP Marathon branch office; Scott Woolam, an official with the DEP Division of State Lands; Bruce Franck, who at all times pertinent was an Environmental Manager in the DEP Marathon branch office; Richard Malloy, a project manager and professional land surveyor for the DEP;
Dr. Paul Lin, who was tendered and accepted as an expert in coastal engineering, survey interpretation, and photo- interpretation of shorelines; and Marion Spinrad, a Petitioner. Petitioners’ Exhibits 8, 33-34, 49, 50 (pages 4-6), 59, 74,
76-77, 88-89, 101, 124, 144-145, 148, 178, and 180 were received
in evidence. Petitioners’ Exhibits 66, 90, and 175 were offered but not received in evidence. Petitioners’ Exhibit 177, having not been timely identified as required by the July 24, 2013, Amended Order of Prehearing Instructions and the November 12, 2013, Order on Motions for Protective Orders and Order Modifying Prehearing Instructions, was not received in evidence.
Petitioners’ Exhibits 175 and 177 were proffered.
The eighteen-volume Transcript was filed on April 18, 2014. Thirty days from the date of the filing of the Transcript having been established as the time for filing post-hearing submittals, the parties filed Proposed Recommended Orders on May 19, 2014, which have been considered in the preparation of this
Recommended Order.
FINDINGS OF FACT
The Parties
Petitioners Bernard Spinrad and Marian Spinrad are the owners of adjoining parcels of property with the addresses of 58418 and 58420 Overseas Highway, Marathon, Florida. They acquired the property in December 2001. They recently completed
construction of two residential structures on the properties. The structure at 58418 Overseas Highway is currently listed for sale. The structure at 58420 Overseas Highway is a vacation rental property. Neither structure is Petitioners’ permanent residence.
The DEP is the state agency with the power and duty to regulate activities in waters of the state pursuant to chapter 373, Florida Statutes. The DEP also serves as staff to the Board of Trustees of the Internal Improvement Trust Fund (“Board of Trustees”) to review and act on activities on state sovereignty submerged lands under chapter 253.
The Applicants, are the owners of adjoining parcels of property with the address of 58478 Overseas Highway, Marathon, Florida (the Property). They purchased the Property in June 2010. The structures that are the subject of the Permit are to be constructed near or waterward of the shoreline of the Property.
The Property
The Property is located on Grassy Key, an island in the middle Florida Keys, within limits of the city of Marathon, Monroe County, Florida. U.S. Highway 1 passes through Grassy Key. The Property -- as is that of Petitioners -- is situated between U.S. Highway 1 and the open waters of the Atlantic Ocean.
In the early part of the 20th century, a portion of Grassy Key was platted as the Crains Subdivision. The properties owned by Applicants and Petitioners are within the Crains Subdivision.
During the periods of time directly relevant hereto, the Property has been owned by Burgess Levine, who owned the property during the period prior to the October 2006, landfall of Hurricane Wilma until June 2010, and by Applicants, who have owned the Property since June, 2010.
Grassy Key
Grassy Key is three-miles long, and has 6800 feet of beaches, none of which are designated as critically eroded. The island fronts the Atlantic Ocean to the east, and the more protected waters of Florida Bay to the west.
The waters along the Atlantic Ocean shoreline of Grassy Key in the area at issue are shallow, with an extremely flat bottom having a very gradual slope of approximately 1 to 30, meaning there is a one foot vertical change over 30 horizontal feet. The mean tide range at the Property is about 1.7 feet.
Under normal conditions, the stretch of Grassy Key at issue is fairly characterized as a zero-wave energy shoreline. Waves break well offshore and there is negligible wave energy propagating beyond that point. What shoreline energy exists is produced by small tide currents and wind-shear on the water
surface that moves water along the shoreline. The direction of the water movement is dependent on tides and wind direction, with the predominant direction being from north to south.
Erosive and other significant changes to the shoreline of Grassy Key, including that stretch fronting the Property, are event driven, meaning when there is a coastal storm that causes a rise in the water level, substantially higher than the astronomical tide, waves can propagate onto the shoreline of Grassy Key. The wind and waves can come from virtually any direction depending on the storm. A storm of greater intensity will create higher energy-wave conditions. Although storm conditions may only occur over 1 to 3 percent of a given year, with the rest of the year having zero-wave energy, on average the coastline may be considered to be of moderate-wave energy.
The beach sediment along the Grassy Key shoreline in all areas pertinent hereto consists of calcareous material, made up of the breakdown of corals and coralling algae, with a significant fraction of other detrital marine material.
The upper beaches of Grassy Key, including that on the Property, generally consist of coarse, calcareous sand with a small fraction of calcareous silt-size particles.
The inter-tidal areas along Grassy Key consist of predominantly fine calcareous sand, with a greater fraction of calcareous silt.
Extending out into the nearshore area all along Grassy Key, including that fronting the properties owned by Petitioners and Applicants, the sediment becomes a very fine calcareous sand, with a greater fraction of the material being calcareous silts and clays, and with a substantial amount of organic mud of a marine origin, classified as Islamorada muck.
Since at least the 1970s, one wading in the nearshore waters along Grassy Key could expect to sink into the surface muck to a depth of anywhere from six inches to two feet. The depth of muck becomes less as one moves further out and approaches the offshore Thalassia beds. Although some areas offer more resistance than others, it is routine to experience difficulty in walking and wading along the coast of Grassy Key because of the high percentage of clays and silts in the substrate. The band of muck narrows as one proceeds towards the northern stretches of Grassy Key, until one reaches the furthest areas to the northeast where the nearshore transitions to exposed rock and hard bottom.
The surface muck that exists in the nearshore waters of Grassy Key, having a sizable component of decaying organic material, gives off an odor of hydrogen sulfide when disturbed that some find to be unpleasant. The odor is a naturally- occurring condition of the sediment, and is common in mucky areas all around the southern coasts of Florida.
The suggestion that the shoreline in the vicinity of the Petitioners’ property, and that of Applicants, was a naturally occurring white, sandy beach is contrary to the greater weight of the evidence. To the extent the shoreline at Petitioners’ property may have been temporarily altered by the overwash from Hurricane Wilma as discussed herein, Petitioners’ own post-Wilma man-made efforts at beach stabilization, or the redistribution of sediments occasioned by Hurricanes Isaac and Sandy in 2012, the evidence demonstrates the “mucky” condition described herein to be more consistent with the natural and long-standing conditions of Grassy Key. Thus, as Grassy Key exists in the present time, one may expect to encounter six inches to two feet of loose muck anywhere along the nearshore area.
Close to shore of Grassy Key are scattered beds of Halodule, a species of seagrass that tends to emerge and grow in shallow waters. The growth of Halodule is influenced by the nature of the sediments, the salinity temperature, and clarity of the water. Storm events have a significant effect on its growth. Given its transient nature, Halodule may vary in any given area from nonexistent, to spotty, to well-established
beds.
As one moves further offshore, the Halodule
transitions to large, continuous beds of Thalassia. Thalassia
grows in deeper water, and is common to a depth of about 12 feet. Being deeper and less affected by storm energy, the line of the Thalassia beds off of Grassy Key has not substantially changed over time.
As wind and waves come across the grass beds, and as tides ebb and flow, grass blades are cropped. The amount of grass varies seasonally to a degree. The cropped and dislodged seagrasses, along with other organic material entrained therein, are naturally carried by the tides and wind and stranded along the shoreline. The stranded material is known as wrack, and the line of stranded material is known as the wrack line.
Grassy Key is well known for the large seagrass wracks that pile up on the shoreline. A wrack line is a normal and natural occurrence in marine environments like that of Grassy Key, and can be a good indicator of the upper edge of the water action at a particular time.
The cropping and dislodging of seagrass is accentuated during major or minor storm events. During Hurricane Rita in 2005, a very large seagrass wrack was blown onto the shoreline of Grassy Key. It was subsequently blown back out to sea by the overwash from Hurricane Wilma.
The decomposition of the seagrass and other organic materials creates a significant odor that is not uncommon. That
odor of decomposing material is well-recognized as being associated with Grassy Key.
Areas along the shoreline of Grassy Key have been used by sea turtles for nesting. However, the nature of the substrate in the area of the Property is not optimal for nesting. Generally, sea turtles require a nesting site with 15 to 20 inches of sand above the water table so as to allow them to dig a suitably deep and dry cavity for their eggs. The natural substrate along the section of Grassy Key at issue is coarser and more difficult to dig into, and does not have the depth of sand for the best chance of a successful nest.
Despite the nature of the substrate, Petitioner testified as to her observation of turtle nests along her property in each year from 2006 through 2010. Since the SW Groin, the Mid-bulkhead, and the NE Groin were all in existence and functioning during that period, with work to the SW Groin having been completed by 2008, the preponderance of the evidence demonstrates that those structures have no effect on the success or failure of sea turtles to nest along the property. To the extent nesting has been disrupted since 2011, the most logical inference that can be drawn from the evidence is that such disruption is the result of the Mid-Jetty Extension, which is slated for removal under the terms of the Permit. The preponderance of the evidence demonstrates that the structures
and activities authorized by the Permit will have no adverse effect on sea turtles.
Hurricane Wilma
In October, 2005, Grassy Key was pounded by Hurricane Wilma. The storm passed to the north, and created a substantial storm surge that moved from west to east across Grassy Key. The storm surge created a “ridge and runnel” effect on the Atlantic facing shoreline, with the channelization of the storm tide flow creating erosion and gullies on upland shore-adjacent properties. The storm surge and flooding across Grassy Key caused substantial wash-outs of sand; transported a large volume of sandy, upland sediments into the nearshore waters of the Atlantic Ocean; and created washover “fans” of material along the shoreline of Grassy Key.
The effects of the Hurricane Wilma storm surge manifested just north of the Property, became substantial at the Property, and continued south down the shoreline for a considerable distance. At the Property, sand was pushed from 50 to 100 feet waterward from the existing shoreline, and a substantial runout was created running parallel and north of the SW Jetty. The sand pushed into the water buried everything in its path, including seagrasses. In short, the post-Wilma shoreline from the Property south along Grassy Key was left in a completely disrupted state.
The nearshore waters fronting the properties owned by Petitioners and Applicants were affected by the deposition of sandy, upland sediments, which temporarily created areas of substantially harder-packed sediment. Over time, as the shoreline equilibrated and the sandy sediment distributed through a broader area, more typical shoreline conditions returned.
The photographic evidence demonstrates that the Mid- bulkhead and the SW jetty structures were impacted by the Hurricane Wilma storm surge. In addition, the sandy area between the mid-bulkhead and the SW jetty was pushed seaward from its previous location.
The scars from Hurricane Wilma remain evident through the most recent aerial photographs received in evidence. It is visually apparent that seagrass, though reappearing in patches, has not reestablished in the nearshore areas along the affected shoreline of Grassy Key -- including the areas in front of the Property and the property owned by Petitioners -- to the extent that it existed prior to the storm.
Post-Wilma Activities
When Hurricane Wilma hit, the Property was owned by Burgess Lea Levine. Not long after Hurricane Wilma, Ms. Levine shored up the SW Jetty, and performed work in the “beach” area between the mid-bulkhead and the SW jetty. The photographic
evidence also supports a finding that the rock outline of the Mid-jetty was reestablished to its pre-Wilma configuration.
The repairs to the SW Jetty resulted in a structure that is virtually indistinguishable in size and shape to the SW Jetty as it presently exists.
The wrack line at the beach area after it was “worked” following the passage of Wilma, shows the area in which work was done to be generally consistent with -- though slightly seaward of -- the 2005 post-Wilma shoreline.
In 2008, Ms. Levine applied for a series of exemptions and for consent of use for state-owned lands for “shoreline repair, replace earthen ramp with a concrete ramp, repair wood deck, replace mooring piles & maintenance dredge existing channel w/in Atlantic Ocean.”
On September 19, 2008, the DEP issued a regulatory authorization and proprietary submerged land approval. The Rights of Affected Parties that accompanied the September 19, 2008, notice provided that “[t]his letter acknowledges that the proposed activity is exempt from ERP permitting requirements” and that “this determination shall expire after one year.” The notice of Rights of Affected Parties did not apply to the proprietary authorization.
At some time after issuance of the regulatory authorization, Ms. Burgess initiated additional work to repair
the SW Jetty. The photographic evidence, which is persuasive, indicates that the work on the SW Jetty, including the concrete cap, was complete by the end of 2008.
When Applicants purchased the Property, the determination of exemption issued in 2008 had, by application of the notice of Rights of Affected Parties, expired.
Shortly after the Applicants purchased the property, they had the existing family home demolished. Applicants intend to construct a winter vacation home for their personal use on the property.
2012 Storms
In August and October 2012, Grassy Key was subject to event-driven conditions as a result of the passage of Hurricanes Isaac and Sandy. Those storms redistributed large areas of sediments that had been moved offshore by the effects of Hurricane Wilma.
The Proposed Permit
The February 20, 2013, Permit provides that the structures described herein do not require the issuance of an Environmental Resource Permit, subject to the criteria and conditions in Florida Administrative Code Rule 40E-4.051. The Permit provides that the boat ramp is eligible to use the general permit in Florida Administrative Code Rule 62-330.417, the repair and replacement of the dock is exempt pursuant to
section 403.813(1)(b), Florida Statutes, the maintenance dredging of the Channel is exempt pursuant to section 403.813(1)(f), and that the repair and replacement of the NW Jetty, the SW Jetty, and the Mid-bulkhead are exempt because the structures are “historic in nature and pre-dates Department regulations.”
In addition to the regulatory authorizations, the Permit granted proprietary authorization by Letter of Consent for the dock pursuant to Florida Administrative Code Rule 18- 21.005(1)(c)4., and for the Channel, the NW Jetty, the SW Jetty, and the Mid-bulkhead pursuant to rule 18-21.005(1)(c)7. The Permit established the mean high-water line as that existing in 1974 and depicted on the “Richmond Survey.” Proprietary authorization for the boat ramp was determined to be unnecessary due to its location above the mean high-water line. Finally, proprietary authorization for the “Sandy Area” or beach between the Mid-bulkhead and SW Jetty was granted by Letter of Consent pursuant to rule 18-21.005(1).
On September 20, 2013, the DEP filed a Notice of Additional Grounds for Exemption Determination, in which it found each of the structures subject to the regulatory review to “have only minimal or insignificant individual or cumulative adverse impacts on water resources” and to thus be exempt from
the need to obtain an Environmental Resource Permit pursuant to section 373.406(6), Florida Statutes.
On December 12, 2013, Applicants filed a Notice of Filing Proposed Changes to the Pending Agency Action in which they agreed to certain additional conditions, and which referenced the October 1, 2013, repeal of rule 40E-4.051, and its replacement by the “Statewide ERP rules.”
For purposes of this de novo proceeding, the proposed Permit at issue includes the February 20, 2013, Permit; the September 20, 2013, Notice of Additional Grounds for Exemption Determination; and the December 12, 2013, Notice of Filing Proposed Changes to the Pending Agency Action.
The Proposed Structures Groins
There has been some confusion relating to the names of the structures that are subject to the proposed Permit. Two of the structures are referred to as jetties, the NE Jetty and the SW Jetty, and the middle structure is referred to as the Mid- bulkhead.
A jetty is a navigation structure that is constructed at a barrier inlet. Its purpose is to stabilize the inlet and prevent shoaling by “jetting” current and wave-driven sand further offshore, such that the offshore bar is moved into deep enough water to allow navigation in and out of the tidal inlet,
and allowing the tidal current between the ocean and the receiving body of water to keep the inlet scoured and open. There are 48 jetties on the open coast of Florida, none of which are in the Florida Keys.
A groin is a structure designed for shore protection purposes. A groin is typically aligned perpendicular to the shoreline, or “shore normal.” The structures identified in the Permit as the NE Jetty and the SW Jetty are clearly groins, and not jetties. The mid-bulkhead is a groin, generally for shore confinement, with a channel-facing bulkhead. For purposes of continuity, the structures will be identified by the names given them in the Permit.
Since there is negligible wave energy along the shoreline normal conditions, the groins have little or no day- to-day effect on longshore transport. Under storm conditions, the structures affect longshore transport, as evidenced by accretional “fillets,” and function as shoreline protection and confinement structures.
The rock groins provide shelter, habitat and structure for corals, sponges, lobster, and fish in the area. The preponderance of the evidence demonstrates that the groins authorized by the Permit will have no adverse effect on fish and wildlife resources.
NE Jetty
The NE Jetty was originally constructed in the early 1960s, likely concurrent with the dredging of the navigational channel. The quality of the aerial photographs of the period make it difficult to tell if the NE Jetty was a loosely-placed rock embankment or a more well-designed and constructed structure. However, the fillet of sand accreted to the north of the Channel demonstrates that the jetty was in existence and functioning as a shore-protection structure.
By the 1970s, the NE Jetty had become overwhelmed by longshore sediment transport from the northeast. Sediment overtopped the NE Jetty and filled in the landward reaches of the Channel. At that point, ability of the NE Jetty to perform as a shore protection structure was compromised to the point that it could no longer hold the shoreline out of the basin or the landward portion of the Channel. The Mid-bulkhead became the dominant structural control over the shoreline and started to accrete the shoreline to the northeast.
At some time between 1977 and 1981, the Channel was maintenance dredged pursuant to a permit issued by the Department of Environmental Regulation, DEP’s predecessor agency. The NE Jetty appeared on the plans for the maintenance dredging. Thus, the most reasonable inference that can be drawn from the evidence is that the NE Jetty was repaired and restored
in conjunction with the approved maintenance dredging. By 1981, the NE Jetty had been restored as the dominant shore protection structure north of the Channel, and a fillet of accreted material had been reestablished. The aerial photographs from that period are not sufficiently distinct to determine the precise size, shape, and configuration of the NE Jetty at that time. However, there is no evidence of additional work having been performed on the NE Jetty between 1981 and 1985.
By 1985, the NE Jetty existed in substantially the size, shape, and configuration as it existed at the time of Hurricane Wilma.
Between 1981 and the 2005 arrival of Hurricane Wilma, the evidence is convincing that the NE Jetty was holding up the shoreline to the northeast and preventing sediment from filling in the upper reaches of the Channel. Although the evidence suggests that the NE Jetty had, by 2005, begun to show its age, the continuous presence of an accretional fillet demonstrates that it continued to serve its function as a shore-protection structure.
Although the NE Jetty suffered damage from Hurricane Wilma, it continued to perform its shoreline protection function. Aerial photographs taken in 2009 and 2011 show a relatively distinct structure with a well-defined accretional
fillet. Thus, the greater weight of the evidence demonstrates that, at the time of its repair in May 2011, the NE Jetty was a functional groin.
The NE Jetty, as repaired in 2011, is of substantially the same size, shape, and location as the structure depicted in aerial photographs taken in 1985, 2009, and early 2011.
Although the elevation of the structure was increased over its pre-repair elevation, the increase was that reasonably necessary to prevent the function of the structure from being compromised by the effects of age and weather. The work performed on the NE Jetty, consisting of new rock laid on top of the existing rock, constituted repair and maintenance of the existing structure.
Since 2005, and at the present time, the shoreline north of the NE Jetty has reached a state of equilibrium and stability, and is not expected to change significantly from its current condition. The preponderance of the competent, substantial evidence demonstrates that the effect of the NE Jetty on the shoreline and water resources of Grassy Key in the vicinity of the properties owned by Applicants and Petitioners is minimal and insignificant.
The sand and sediment accreted to the north of the NE Jetty since 1981 is in the range of 250 square feet.
SW Jetty
The aerial photographs from 19647/ demonstrate that some form of structure then existed at the location of the current SW Jetty. The structure is indistinct due to what appears to be sidecast material from a small channel in front of the property to the immediate south of the Property.
By 1971, the SW Jetty had become more distinct. From that time forward, the SW Jetty, and its accompanying fillet of accreted material, appears in roughly the size and shape of the structure as it appeared immediately prior to the arrival of Hurricane Wilma.
The SW Jetty was heavily impacted by Hurricane Wilma.
The overwash from the storm created a substantial runout alongside the SW Jetty, and the post-storm aerials suggest that the jetty boulders were undermined and shifted from their more uniform 2003 appearance.
Immediately after Hurricane Wilma, the owner of the Property commenced restoration and repair activities. As part of the activities, the SW Jetty was repaired with the addition of boulders, which were often three feet and every now and then as much as four feet across. The boulders, being irregularly shaped, could not be stacked like Legos®, so the repairs were not neatly within the precise pre-Wilma footprint. However, the repaired SW Jetty was substantially in the length and location
as existed prior to Hurricane Wilma, though it may have had a slightly wider cross-section.
By 2007, the work on the SW Jetty was complete, and it had assumed its present appearance with the addition of a concrete cap. Its appearance -- i.e. length, width, and location -- in 2007 and 2008 was not dissimilar from its appearance in 2003. As repaired, the SW Jetty effectively constitutes the same structure that it has been since its initial construction.
From a coastal engineering perspective, the work that was performed on the SW Jetty, consisting generally of new rock laid on top of the existing rock, constituted repair and maintenance of the existing structure.
Dr. Lin testified that between 1974 and 2011, the area to the southwest of the southwest jetty was “about equalized,” though it was “accreting a little bit.” Thus, the effect of the SW Jetty on the shoreline of Grassy Key in the vicinity of the properties owned by Applicants and Petitioners from 1974 to 2011 was minimal and insignificant. Dr. Lin testified that, since 2011, the same area had eroded. The only substantive shoreline change that logically accounts for that subsequent erosion is the Mid-bulkhead extension, which is slated for removal under the terms of the proposed Permit.
Petitioner testified that she observed no adverse effects from activities on the Property until after February 2011.8/ Since work on the SW Jetty was complete by no later than 2008, Petitioner’s testimony supports a finding that the SW Jetty has had no measurable effect on the water resources in the vicinity of the properties owned by Applicants and Petitioners.
The preponderance of the competent, substantial evidence demonstrates that the effect of the SW Jetty on the shoreline and water resources of Grassy Key in the vicinity of the properties owned by Applicants and Petitioners is minimal and insignificant.
Mid-bulkhead
The structure of the Mid-bulkhead first appeared as part of the sidecast material from the excavation of the navigation channel in 1964. It coalesced into a defined but smaller and more rudimentary structure in the 1971-1972 time period. At that time, it was acting as the predominant shore protection structure due to the overtopping of the NE Jetty with sediment, which also filled in the landward reaches of the Channel.
By 1981, after the maintenance dredging of the Channel, the Mid-bulkhead had assumed substantially the size, shape, and location that it has currently. The Mid-bulkhead has a navigation function of protecting the landward extent of the
Channel from the collapse of adjacent sand and sediment, and a shore protection and compartmentalization function. Those functions have been consistent since 1981.
The Mid-bulkhead appears to have been subjected to the overwash of sand and sediment from Hurricane Wilma, though it maintained its shape and form.
The outline of the Mid-bulkhead appears to be more well-defined after the initial post-Wilma repairs. In any event, the configuration and size of the Mid-bulkhead is substantially the same as it had been since 1981.
At some point, the interior section of the Mid- bulkhead was topped with soil that is inconsistent with that naturally occurring in the area. That fill was confined, and brought the Mid-bulkhead to a more even grade with the rock outline, but could have had no measurable effect on the shoreline and water resources of Grassy Key in the vicinity of the properties owned by Applicants and Petitioners.
The preponderance of the competent, substantial evidence demonstrates that the effect of the Mid-bulkhead is minimal and insignificant.
Channel
In 1961, the Department of the Army authorized dredging of a navigation channel at the Property. The approved channel was to be 700 feet long, 30 feet wide, and to a depth of
five feet below mean low water. The Florida Trustees of the Internal Improvement Fund issued a letter of no objection.
By 1964, the Channel that is the subject of this proceeding had been dredged, though not to the 700-foot length approved. Rather, the Channel was dredged to a length of approximately 290 feet. Much, if not all of the dredge spoil was sidecast, creating a rock structure alongside the Channel.
Measurements taken during the course of this proceeding demonstrate that the initial dredging resulted in near vertical side slopes, which shows that the bailing of the bedrock was accomplished to the limits. The width of the Channel is from 28 feet to 32 feet wide, which is within an acceptable tolerance of the 30-foot approved width.
In 1976, the then-owner of the Property sought a permit from the DEP’s predecessor, the Department of Environmental Regulation, to maintenance dredge the Channel to a dimension of 290 feet long and 30 feet wide, to a depth of minus 8-feet mean high water, and to construct a new rock jetty to extend 230 feet waterward from the existing terminus of the NE Jetty. Given the mean tide range of 1.7 feet at the Property, the depth of the proposed dredging would have been minus 6.3 feet mean low water, or 1.3 feet deeper than originally approved. The permit drawings depict the existing NE Jetty, the Channel boundary, the outline of the Mid-bulkhead, and the
sidecast rock structure alongside the southern side of the Channel. The permit was denied.
In 1977, the owner of the property reapplied for a permit to maintenance dredge the Channel to a dimension of 290 feet long and 30 feet wide, and to a depth of minus 4.0 feet below mean low water nearshore to minus 6 feet below mean low water at the waterward end. The proposal to construct an extension of the NE Jetty was deleted. The permit was issued, and a severance fee for the dredged material was paid based on a projected 700 cubic yards of material removed. The permit drawings and photographs depict the existing NE Jetty, the nearshore Channel boundary, and the general outline of the Mid- bulkhead.
By 1981, aerial photographs demonstrate that the maintenance dredging of the Channel was complete, the NE Jetty was in place and functioning to protect the shoreline as evidenced by the accretional fillet, and the Mid-bulkhead had assumed its approximate current shape and configuration.
Although the Channel has varied in depth over the years since the maintenance dredging and Hurricane Wilma, the greater weight of the evidence, including photographic evidence, indicates that the Channel was well-defined and remained navigable during that period.
The Channel is an open-water exposed channel. Water in the Channel mixes due to direct tidal flow and the sheet flow of water due to shear wind stress. As water passes over the Channel, it sets up gyre, which is a mixing process. The open- water exposed Channel is subject to a high degree of mixing, even on normal waveless conditions, because of the wind transport of water and the tidal transport of water.
The Channel is not a semi-enclosed basin. A semi- enclosed basin does not receive the direct forcing functions that an open-water channel receives. A semi-enclosed basin has no direct connection to open waters, but is connected to open waters by a narrower opening. Although a semi-enclosed basin exchanges water via every tidal cycle, the flushing process is one of slow mixing, in which a little bit of water is added to and withdrawn from the larger basin through the narrow opening during each tidal cycle. In such a case, a flushing analysis may be necessary to determine how much time and how many tidal cycles it may take to effect a complete exchange of the water in the semi-enclosed basin, and thus, for example, to dilute a pollutant to an acceptable level.
A flushing analysis is not needed in this case because the Channel is an open-water, openly-exposed location subject to a high degree of mixing under normal day-to-day tidal processes. There is no greater basin connected by a restricting connection
as with a semi-enclosed basin. Rather, the Channel has direct exposure to the tides, along with wind shear stress moving the water. The evidence in this case is substantial and persuasive, because the Channel is highly exposed to the open water and the tides, and a well-mixed and well-flushed aquatic system, that a flushing analysis is neither required nor necessary.
Dock
The dock made its first obvious appearance in 1981.
It appears in a consistent shape and appearance through 2011. Aerial photographs taken in 2012, after the maintenance dredging of the Channel was conducted, show the dock had been removed.
At the time of the hearing, the Applicants had installed new pilings and vent boards for the replacement dock, but the decking had not been installed. Work to complete the replacement of the dock was halted due to the pendency of the litigation challenging the structures.
The proposed dock is less than 500 square feet. It is proposed for non-commercial, recreational activities. It is the sole dock proposed on the Property. The proposed dock will not impede the flow of water or create a navigational hazard.
Boat Ramp
Since the issuance of the 2008 approval, the boat ramp site was graded and stabilized in limerock material. The concrete ramp was not completed due to the pendency of the
litigation challenging the structures. However, Applicants propose to pave the ramp with concrete.
Based on Mr. Clark’s observations during his site visits, the boat ramp is landward of the mean high waterline depicted on the survey.
The preponderance of the evidence demonstrates that the proposed boat ramp will provide access to the Channel, which provides a minimum navigational access of two feet below mean low water to the ramp. Applicants have agreed to install depth indicators at the ramp to identify the controlling depths of the navigational access. The work on the ramp involves no seagrass beds or coral communities. The ramp as proposed will require no more than 100 cubic yards of dredging.
The total width of the ramp is to be 20 feet and the ramp surface will be no wider than 12 feet.
Beach Area
The area between the SW Jetty and the Mid-bulkhead is an accreted beach-type area that has been confined and protected by the Mid-bulkhead and the SW Jetty. The shoreline landward of the mean high water line, from the dry beach and to the upland, is somewhat steeper than adjacent unprotected shorelines, which is indicative of the grooming of the upper beach sediment and the stability of the shoreline between the Mid-bulkhead and the SW Jetty.
As a result of the Hurricane Wilma storm surge, a substantial amount of sediment was swept across the Property and into the Atlantic waters. The beach area was inundated with sand and sediment from the overwash, which appears to have moved the shoreline well waterward of its previous position. Along the northern side of the SW Jetty, a substantial channelized gully was created.
The configuration of the shoreline post-Wilma suggests that efforts were made by the then-owner of the Property to fill in the gully on the northern side of the SW Jetty, and to groom and restore the shoreline by redistributing sand and sediment on the Property.
It is typical, and allowable under DEP emergency final orders, for affected property owners to redistribute overwashed deposits and place them back within the beach system. In that regard, the DEP encourages the redistribution of clean beach sand back onto the beach. The then-owners of the Property were not alone in taking steps to address the effects of Hurricane Wilma on their adjacent shorelines. The photographic evidence demonstrates that Petitioners engaged in similar restorative activities, which included bringing in material purchased from a contractor to fill in a gully created on their property by the overwash.
Observation of representative soil samples from the beach area demonstrate that the soils are consistent with those in the upper beach areas found throughout the area. The only areas of inconsistent soils were found in the interior of the rock structure of the Mid-bulkhead, which contained a four to six-inch layer of soil with a different consistency and darker brown color, and small area of similar soil directly adjacent thereto and well above the mean high water line. The greater weight of the competent, substantial, and credible evidence demonstrates that there was no substantial amount of “fill” from off-site placed on or adjacent to the beach area. Rather, the nature, appearance, and composition of the soils suggests that the temporary increase in the size of the beach area after Hurricane Wilma was the result of grooming and redistribution of sand and sediment pushed onto the Property and into the nearshore waters by the Hurricane Wilma storm surge.
In the years since Hurricane Wilma, the influence of normal tidal and weather-driven events has returned the beach area between the mid-bulkhead and the SW jetty to roughly the configuration that existed prior to the passage of Wilma, though it remains somewhat waterward of its pre-Wilma location.
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2013). Standing
As the persons asserting party status, Petitioners have the burden of demonstrating that they have standing to initiate and maintain this proceeding. Palm Beach Cnty. Envtl. Coal. v. Fla. Dep't of Envtl. Prot., 14 So. 3d 1076, 1078 (Fla.
4th DCA 2009); Agrico Chem. Co. v. Dep't of Envtl. Reg., 406 So. 2d 478, 482 (Fla. 2nd DCA 1981).
In the seminal case of Agrico Chemical Corp. v. Dep't of Envtl. Reg., 406 So. 2d 478 (Fla. 2d DCA 1981), the Court
established a two-pronged test for standing in formal administrative proceedings, holding:
We believe that before one can be considered to have a substantial interest in the outcome of the proceeding, he must show
that he will suffer an injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing and 2) that his substantial injury is of a type or nature which the proceeding is designed to protect. The first aspect of the test deals with the degree of injury. The second deals with the nature of the injury.
Id. at 482.
Agrico was not intended as a barrier to the
participation in proceedings under chapter 120 by persons who are affected by the potential and foreseeable results of agency action. Rather, “[t]he intent of Agrico was to preclude parties from intervening in a proceeding where those parties' substantial interests are totally unrelated to the issues that are to be resolved in the administrative proceedings. Mid-
Chattahoochee River Users v. Fla. Dep't of Envtl. Prot., 948 So.
2d 794, 797 (Fla. 1st DCA 2006)(citing Gregory v. Indian River Cnty., 610 So. 2d 547, 554 (Fla. 1st DCA 1992)).
The standing requirement established by Agrico has been refined, and now stands for the proposition that standing to initiate an administrative proceeding is not dependent on proving that the proposed agency action would violate applicable law. Instead:
[s]tanding is “a forward-looking concept” and “cannot ‘disappear’ based on the ultimate outcome of the proceeding.” . . . When standing is challenged during an administrative hearing, the petitioner must offer proof of the elements of standing, and it is sufficient that the petitioner demonstrate by such proof that his substantial interests “could reasonably be affected by . . . [the] proposed activities.”
Palm Beach Cnty. Envtl. Coal. v. Fla. Dep't of Envtl. Prot.,
14 So. 3d at 1078(citing Peace River/Manasota Reg'l Water Supply
Auth. v. IMC Phosphates Co., 18 So. 3d 1079, 1083 (Fla. 2nd DCA
2009) and Hamilton Cnty. Bd. of Cnty. Comm'rs v. State, Dep't of
Envtl. Reg., 587 So. 2d 1378 (Fla. 1st DCA 1991)); see also St. Johns Riverkeeper, Inc. v. St. Johns River Water Mgmt.
Dist., 54 So. 3d 1051, 1055 (Fla. 5th DCA 2011) (“Ultimately, the ALJ's conclusion adopted by the Governing Board that there was no proof of harm or that the harm would be offset went to the merits of the challenge, not to standing.”).
Petitioners assert that they have standing since they reside in close proximity to the Applicants, and that the activities proposed will have detrimental effects on, among other things, water quality and shoreline processes that will adversely affect their enjoyment of their property.
Petitioners meet the second prong of the Agrico test, that is, this proceeding is designed to protect them from potential adverse impacts on water quality and other alleged adverse effects caused by the proposed construction, impacts that are the subject of chapters 373 and 403, and the rules adopted thereunder.
The question for determination as to the first prong of the Agrico test is whether Petitioners have alleged injuries in fact of sufficient immediacy as a result of the proposed project to entitle them to a section 120.57 hearing.
In Reily Enterprises, LLC v. Florida Department of
Environmental Protection, 990 So. 2d 1248, 1251 (Fla. 4th DCA
2008), the Court found that a challenger to a permit, alleged to adversely affect an adjacent water body, met the Agrico test for standing. The facts upon which the court found standing were that the petitioner in that case:
can see the Indian River from his house across the Reily property. He and his family have “spent time down at the causeway,” and they have “enjoyed the river immensely with all of its amenities” over the years. He is concerned that the project will affect his “quality of life” and “have effects on the environment and aquatic preserve [that he and his family] have learned to appreciate.”
Petitioners interests are more than the type of general “quality of life” issues alleged in Reily, but include direct impacts to their property from activities subject to the regulatory approval and proprietary authorization.
Petitioners have sufficiently alleged the possibility of “injury in fact which is of sufficient immediacy to entitle [them] to a section 120.57 hearing,” and as such have proven that they have the requisite standing to initiate and maintain this proceeding.
Nature of the Proceeding
This is a de novo proceeding, intended to formulate final agency action and not to review action taken earlier and preliminarily. Young v. Dep’t of Cmty. Aff., 625 So. 2d 831,
833 (Fla. 1993); Hamilton Cnty. Bd. of Cnty. Comm'rs v. Dep't of
Envtl. Reg., 587 So. 2d 1378, 1387 (Fla. 1st DCA 1991); McDonald
v. Dep’t of Banking & Fin., 346 So. 2d 569, 584 (Fla. 1st DCA 1977). Therefore, the February 20, 2013, notice of proposed agency action; the September 20, 2013, Notice of Additional Grounds for Exemption Determination; and the December 12, 2013, Notice of Filing Proposed Changes to the Pending Agency Action are properly at issue.
Burden of Proof
Petitioner has challenged the issuance of a general permit for the construction of the concrete boat ramp; the determination that the NE Jetty, the SW Jetty, the Mid-bulkhead, the dock, and the Channel qualify for exemptions; and the proprietary authorizations related thereto.
Section 120.569(2)(p) provides that:
For any proceeding arising under chapter 373, chapter 378, or chapter 403, if a nonapplicant petitions as a third party to challenge an agency's issuance of a license, permit, or conceptual approval, the order of presentation in the proceeding is for the permit applicant to present a prima facie case demonstrating entitlement to the license, permit, or conceptual approval, followed by the agency. This demonstration may be made by entering into evidence the application and relevant material submitted to the agency in support of the application, and the agency's staff report or notice of intent to approve the permit, license, or conceptual approval.
Subsequent to the presentation of the applicant's prima facie case and any direct evidence submitted by the agency, the
petitioner initiating the action challenging the issuance of the permit, license, or conceptual approval has the burden of ultimate persuasion and has the burden of going forward to prove the case in opposition to the license, permit, or conceptual approval through the presentation of competent and substantial evidence.
A general permit is a license, permit, or conceptual approval to which section 120.569(2)(p) applies. Helen J.
Crenshaw v. Vista of Fort Walton Beach, LLC and NWFWMD, Case No.
12-3280 (Fla. DOAH Mar. 11, 2013; NWFWMD Apr. 11, 2013).
Applicants made their prima facie case of entitlement to the general permit for the construction of the concrete boat ramp and, therefore, the burden of ultimate persuasion is on Petitioners to prove their case in opposition to the permit by a preponderance of the competent and substantial evidence.
Precedent is mixed as to whether an exemption is not a “license, permit, or conceptual approval.”
In the Recommended Order in Elizabeth Padron vs. Carl
J. Ekblom and Department of Environmental Protection, Case No. 12-3280 (Fla. DOAH Mar. 11, 2013; DEP Aug. 29, 2013), the
presiding administrative law judge concluded that “[t]he burden of showing entitlement to an exemption is on the applicant.
Because no permit is being issued by the Department, section 120.569(2)(p), Florida Statutes, does not apply.” The DEP Final Order, which was entered prior to the commencement of the final
hearing in this case, adopted the Recommended Order in its entirety. The undersigned relied on Padron in the initial ruling regarding the burden of proof and order of presentation in this case.
After the final hearing in this case was commenced, the case of Gary Pirtle v. Roy D. Voss and Department of Environmental Protection, Case No. 13-0515 (Fla. DOAH Sept. 27,
2013; DEP Dec. 26, 2013), became final. In the Recommended Order, the presiding administrative law judge, construing the effect of the “written determination” provisions of section 373.406(6), concluded that:
[T]he Department refers to Voss's “application” and states that the determination the proposed mooring pilings are exempt was made under section 373.406(6). That section requires a written request for a Department determination that proposed activities are exempt from permitting and advises the applicant that the activities shall not be commenced without the written determination of exemption . . . . The Department’s written determination is a license issued under chapter 373 and subject to section 120.569(2)(p). Therefore, Pirtle has the burden of ultimate persuasion that Voss is not entitled to the exemption.
The DEP Final Order adopted the Recommended Order in its entirety, stating that “Section 120.52(10), F.S., defines a ‘license’ as ‘a franchise, permit, certification, registration, charter, or similar form of authorization required by law,’” and
that “[t]he definition of ‘license’ in Section 120.52, F.S., encompasses the ‘form of authorization’ issued by the Department under Section 373.406(6), F.S.”
Having reviewed the cases cited herein, the undersigned agrees that in cases in which an exemption is subject to a case-by-case determination and written approval from the relevant regulatory authority, as is the case for exemptions under section 373.406(6), the Pirtle case controls.
However, since this case was commenced while the Padron Final Order was the only applicable authority, and since the parties were governed by and relied upon the procedural rulings entered in reliance on the Padron Final Order, the Respondents are found
to have the burden of proof with regard to the exemptions, and thus bear the burden of demonstrating, by a preponderance of the evidence, that the qualifying conditions for the exemptions have been met.
The consent to use sovereignty submerged lands is an authorization issued under chapter 253. Such authorizations are not subject to section 120.569(2)(p). Applicants therefore bear the burden of ultimate persuasion to demonstrate entitlement to that authorization. See Fla. Dep't of Transp. v. J.W.C. Co.,
Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Save our Creeks, Inc. v. Fla. Fish & Wildlife Conser. Comm’n, Case No. 12-3427 (Fla.
DOAH July 3, 2013; DEP Jan. 14, 2014).
The standard of proof is preponderance of the evidence. § 120.57(1), Fla. Stat.
Exemptions
The proposed Permit, which was issued on February 20, 2013, provides that the structures that are the subject of this proceeding do not require an Environmental Resource Permit so long as the applicants “comply with the criteria and limiting conditions of Section 40E-4.051(2)(a) and (3)(a) and (3)(d) and (3)(e) and (4)(b), Florida Administrative Code.”
In 2012, the Florida Legislature enacted section 373.4131, which requires the adoption of statewide environmental resource permitting rules. Ch. 2012-94, § 1, Laws of Fla. As amended in 2013, the statute now provides, in pertinent part, that:
The department shall initiate rulemaking to adopt, in coordination with the water management districts, statewide environmental resource permitting rules governing the construction, alteration, operation, maintenance, repair, abandonment, and removal of any stormwater management system, dam, impoundment, reservoir, appurtenant work, works, or any combination thereof, under this part.
The rules must provide for statewide, consistent regulation of activities under this part and must include, at a minimum:
* * *
4. Exemptions and general permits that do not allow significant adverse impacts to occur individually or cumulatively.
* * *
6. General permit conditions, including monitoring, inspection, and reporting requirements.
On April 10, 2013, the South Florida Water Management District published a Notice of Proposed Rule, for which the undersigned takes official recognition, providing for the repeal of rule 40E-4.051 “to be consistent with Section 373.4131, F.S. (2012).”
The Notice of Proposed Rule further provides that “the District proposes to amend Rule 40E-4.010 to conform to DEP’s amendments to Chapter 62-330, F.A.C., by referencing Chapter 62-330, F.A.C., and to repeal Rules . . .
40E-4.051, . . . as the substance of these rules will be addressed in Chapter 62-330, F.A.C.”
Effective October 1, 2013, rule 40E-4.051 was repealed.
“Florida case law holds that ‘[w]here there is a change in the law during the pendency of a license application, the law in effect at the time of the final hearing controls, rather than a law in effect when the application was filed or when the agency reached its preliminary or initial decision.’”
Jim and Nancy Buntin, and Penelope and Paul Stovall v. Dep’t of
Envtl. Prot., Case No. 08-1086 (DOAH Nov. 30, 2009; DEP Jan. 21,
2010), see also, Ag. for Health Care Admin. v. Mount Sinai Med.
Ctr., 690 So. 2d 689, 692-693 (Fla. 1st DCA 1997) and Lavernia v. Dep't of Prof’l Reg., 616 So. 2d 53 (Fla. 1st DCA 1993).
For purposes of this proceeding, the exemptions for the structures described will be gauged against the standards established for exempt activities by applicable statutes and the currently valid rules promulgated thereunder.
Petitioners assert in their Proposed Recommended Order, paraphrasing rule 62-330.051(8), that “[n]otwithstanding the above, any activity conducted in accordance with an exemption under § 373.406, Fla. Stat., remains subject to other applicable permitting, authorization, and performance requirements of the agencies, the Board of Trustees, and other federal, state, and local governments.” Petitioners provide no explanation of that statement, or of the applicability of rule 62-330.051(8) to this proceeding. Rule 62-330.051 establishes exemptions for all manner of structures and activities. It is foreseeable that some may require permits and authorizations for ancillary activities, and that some may be subject to the jurisdiction of other federal, state and local jurisdictions separate and apart from that of the DEP or the water management districts. Clearly the issue of proprietary authorization by
the Board of Trustees remains applicable to exempt activities. However, to the extent Petitioners suggest that the “catch-all” language in rule 62-330.051(8) creates standards to be applied by the DEP and water management districts for exempt activities beyond those directly established by the statutes and rules applicable thereto, that contention is rejected.
Finally, Petitioners attempt to graft the permitting standards established in section 373.414(1) that are applicable to “an activity regulated under this part,” particularly the “reasonable assurance” and “public interest” standards included therein, to activities that are “exempt from regulation under this part” pursuant to section 373.406(6). Section 373.414(1) is not applicable to activities determined to be exempt from regulation. As stated by the DEP, at pages 8-9 of its Final Order in Lardas v. Department of Environmental Protection, Case No. 05-0458 (Fla. DOAH Aug. 24, 2005; DEP Oct. 24, 2005):
I conclude that the reasonable assurance rationale is not applicable to exemption requests. “Reasonable assurance” only applies to applications for permits and related approvals of activities regulated by DEP or the water management districts. See § 373.414(1), Fla. Stat., stating in part that: “As part of an applicant’s demonstration that an activity regulated under this part will not be harmful to the water resources . . . the governing
board or the department shall require the applicant to provide reasonable assurance that state water quality standards . . . will not be violated.”
* * *
In this case, however, the Petitioner did not seek an environmental resource permit from DEP to fill the remnant mosquito ditch on his property. Instead, the Petitioner requested a favorable exemption determination from DEP, which would actually relieve him from the burden of having to apply for a regulatory permit.
Unlike the reasonable assurance rationale applicable to a permit application, a party claiming an exemption from general requirements imposed on the public at large must “clearly” establish entitlement to the exemption. Green v. Pederson, 99 So. 2d 292, 296 (Fla. 1957); Robison v. Fix, 113
Fla. 151, 151 So. 512 (Fla. 1933).
Functionality
Over the years, the DEP has developed and applied a test of “functionality” as a condition of exempt repair, maintenance and replacement activities. The test of functionality is applied so as to require that the structure being repaired or replaced pursuant to an exemption be functional, i.e. still capable of serving its intended purpose. An exemption for maintenance and repair is applicable so long and the structure has not completely ceased to function, even if it has been compromised to a degree. Save the St. Johns River
v. St. Johns River Water Mgmt. Dist., 623 So. 2d 1193, 1202-1203
(Fla. 1st DCA 1993). If a structure requires extensive rebuilding to return it to a functioning condition, a maintenance exemption will not apply. Church of Jesus Christ of
Latter-Day Saints v. St. Johns River Water Mgmt. Dist., 489 So.
2d 59, 60 (Fla. 4th DCA 1986).
As related to the maintenance dredging of a channel, the DEP has determined that the exemption applies even when the remains of the original channel are indistinct and difficult to define, and is navigable for only half of the time. In its Final Order in Manasota 88, Inc. v. Hunt Building Corp. and
Department of Environmental Regulation, Case No. 90-2350 (Fla.
DOAH Jan. 3, 1991; DER Jan. 31, 1991), the DEP accepted the conclusion of the administrative law judge that:
Examination of the historic photographic evidence presented by the applicant clearly shows that the channel was originally dredged at its current location. Though there was question as to the current navigability of the channel as a result of the shoaling at the mouth of the canal, and while there is substantial evidence that, especially at low tide, the water depth is too shallow for more than minimum draft motorless passage, the fact is clear that the channel can be traversed at most times by a vessel and while navigability may be minimal, it is sufficient to meet those exemption requirements.
Exemption - Groins - NE Jetty, SW Jetty, Mid-Bulkhead
Section 373.406(6) provides that:
(6) Any district or the department may exempt from regulation under this part those activities that the district or department determines will have only minimal or insignificant individual or cumulative adverse impacts on the water resources of the district. The district
and the department are authorized to determine, on a case-by-case basis, whether a specific activity comes within this exemption. Requests to qualify for this exemption shall be submitted in writing to the district or department, and such activities shall not be commenced without a written determination from the district or department confirming that the activity qualifies for the exemption.[9/]
Rule 62-330.051, entitled Exempt Activities, provides in pertinent part, that:
The activities meeting the limitations and restrictions below are exempt from permitting. However, if located in, on, or over state-owned submerged lands, they are subject to a separate authorization under Chapters 253 and 258, F.S., and Chapters 18-18, 18-20, and 18-21, F.A.C., as
applicable.
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(2) Activities conducted in conformance with the exemptions in Section 373.406, 373.4145(3), or 403.813(1), F.S.
In addition to the foregoing, on October 25, 2005, the DEP entered an Emergency Final Order and First Amended Emergency Final Order (Emergency Orders) to respond to conditions resulting from Hurricane Wilma, which orders applied to damaged structures in Monroe County. The Emergency Orders authorized activities necessary to repair, restore, or replace structures damaged by the storm, but was not intended to limit statutory and regulatory exemptions.
The Emergency Orders applied to shore stabilization structures, including groins. That Order provided for the temporary and permanent repair or restoration of structures “to the conditions, dimensions, and configurations that were authorized or legally existing immediately prior to the Hurricane,” and further provided that such repair or restoration “may include use of different construction materials or minor deviations to allow upgrades to current structural and design standards ”
The preponderance of the evidence in this case supports a conclusion that the three groin structures were functional at the time the repairs were made on each, with the SW Jetty and the Mid-bulkhead exhibiting evidence of functionality since their construction, and the NW Jetty, though rendered temporarily non-functional in the 1970s, being returned to its shore and channel protection function by 1981.
The repair and restoration of the groins did not involve structures that had been neglected for decades to the point at which they no longer served their intended function when the repairs were made. See, Church of Jesus Christ of Latter-Day Saints v. St. Johns River Water Mgmt. Dist., supra
(dikes which had no maintenance for more than 25 years, had been reduced to vestigial remnants, and which did not perform their function of keeping water off of the property were not eligible
for a maintenance exemption). Rather, the evidence is persuasive that the SW Jetty and Mid-bulkhead have served their intended purposes since their construction, and that the NW Jetty, though overwhelmed for a period, was in a sufficient state of existence to be depicted in the drawings and photographs accompanying the 1977 Channel dredging application, and was returned to its shore and Channel protection function by the completion of the authorized maintenance dredging of the Channel.
The preponderance of the evidence in this case demonstrates that the three groin structures have been maintained and repaired to substantially the size, shape and dimensions as they existed since 1971 in the case of the SW Jetty, and 1981 in the case of the NE Jetty and Mid-bulkhead. Given the nature of the materials from which the structures were made, and the damage that was occasioned by Hurricane Wilma, any deviation from original dimensions is minor.
The preponderance of the evidence in this case demonstrates that, given the site-specific conditions existing on the relevant stretch of Grassy Key, the groins authorized by the proposed Permit will have, at most, minimal or insignificant individual or cumulative adverse impacts on water resources, fish, and wildlife.
For the reasons set forth herein, Applicants have clearly established that the three groin structures, the NE Jetty, the SW Jetty, and the Mid-bulkhead are eligible for and comply with the standards applicable to them under section 373.406(6), rule 62-330.051, and the Emergency Order. Exemption - Channel
Section 403.813(1)(f) provides, in pertinent part, that:
(1) A permit is not required under this chapter [or] chapter 373 . . . for activities associated with the following types of projects; . . . :
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(f) The performance of maintenance dredging of existing manmade . . . channels, . . . where the spoil material is to be removed and deposited on a self- contained, upland spoil site which will prevent the escape of the spoil material into the waters of the state, provided that no more dredging is to be performed than is necessary to restore the . . . channels . .
. to original design specifications or configurations, provided that the work is conducted in compliance with
s. 379.2431(2)(d) [relating to protection of manatees or sea cows], provided that no significant impacts occur to previously undisturbed natural areas, and provided that control devices for return flow and best management practices for erosion and sediment control are utilized to prevent bank erosion and scouring and to prevent turbidity, dredged material, and toxic or deleterious substances from discharging into adjacent waters during maintenance dredging. . . . The Board of Trustees of
the Internal Improvement Trust Fund may fix and recover from the permittee an amount equal to the difference between the fair market value and the actual cost of the maintenance dredging for material removed during such maintenance dredging.
The maintenance dredging exemption is incorporated in rule 62-330.051(7)(a).
The burden is on the person seeking the exemption to establish with some degree of specificity the original design specifications and configurations, including bottom width, length, and depth. See e.g. Sheridan v. Deep Lagoon Boat Club & Dep’t of Envtl Prot., Case No. 98-3901 (Fla. DOAH Nov. 24, 1999;
DEP Jan. 28, 2000).
The evidence in this case, including aerial photographs, permit drawings, and the physical observations of the bottom width and depth to rock are sufficient to establish that the maintenance dredging performed was consistent with the original design specifications and configurations. Such evidence is recognized and accepted by the DEP, as memorialized in SLER 1114-A of its SLERP Procedures Manual.
The maintenance dredging exemption has historically been construed to include only “routine, custodial maintenance,” and not the rebuilding of a system that over the years has not been maintained and lost its essential character. Manasota 88,
Inc. v. Hunt Building Corp. and Dep’t of Envtl. Reg., Case No.
90-2350 (Fla. DOAH Jan. 3, 1991; DER Jan. 31, 1991); citing
Church of Jesus Christ of Latter-Day Saints v. St. Johns River Water Mgmt. Dist., 489 So. 2d at 59. There is no set time
period which must elapse before the maintenance dredging exemption is no longer applicable, rather that period is based on a factual case-by-case decision. In re Petition for Declaratory Statement by James D. Bunch, 1996 Fla. ENV LEXIS
107, *13, fn. 4 (DEP Aug. 9, 1996).
In this case, the preponderance of the evidence demonstrates that the essential character of the Channel was not lost over the years. The Channel was maintained between 1977 and 1981, and the photographic evidence is persuasive that, even if navigability may have been minimal in the years leading to the most recent dredging, the channel remained well defined. Thus, the dredging proposed meets the exemption requirements.
Finally, Petitioners argue that an area of seagrass had become established at the far waterward edge of the Channel, within its original designed and excavated boundary. The language of the statutory exemption carves out no exception for avoidance of seagrass or other biological resources that may have established within a channel after its construction. The creation of an exception to the statutory exemption is not warranted. In that regard, the DEP has recognized that the maintenance dredging exemption applies regardless of criteria
that might be applicable to a regulated and permitted facility, and in SLER 1114-A of its SLERP Procedures Manual has established that:
Maintenance dredging of a legally existing area that qualifies for an exemption under
s. 403.813(2)(f), F.S., can be conducted under the terms of the exemption, and no mitigation is required regardless of the presence of resources located within the channel, canal, berth, or basin.
See also Manasota 88, Inc. v. Hunt Building Corp. and Dep’t of
Envtl. Reg., Case No. 90-2350 (Fla. DOAH Jan. 3, 1991; DER
Jan. 31, 1991)(“The seagrass beds currently existing in the historic channel would be substantially damaged by a maintenance dredging in the area . . . . the Department has no authority to require mitigation for this impact should Hunt exercise[] its right to maintenance dredge.”).
Although the then-owner of the property paid a severance fee for dredged spoil in conjunction with the maintenance dredging of the Channel in 1977, Applicants have agreed to further payment for the spoil material removed from the Channel during the current maintenance.
For the reasons set forth herein, Applicants have clearly established that the maintenance dredging of the Channel is eligible for and complies with the applicable standards under section 403.813(1)(f) and rule 62-330.051(7)(a).
Exemption - Dock
Section 403.813(1) provides, in pertinent part, that:
(1) A permit is not required under this chapter [or] chapter 373 . . . for activities associated with the following types of projects; . . . :
* * *
(b) . . . the installation of private docks, piers and recreational docking facilities, . . . any of which docks:
Has 500 square feet or less of over- water surface area for a dock which is located in an area designated as Outstanding Florida Waters . . .;
Is constructed on or held in place by pilings . . . ;
Shall not substantially impede the flow of water or create a navigational hazard;
Is used for recreational, noncommercial activities associated with the mooring or storage of boats and boat paraphernalia; and
Is the sole dock constructed pursuant to this exemption as measured along the shoreline for a distance of 65 feet, unless the parcel of land or individual lot as platted is less than 65 feet in length along the shoreline, in which case there may be one exempt dock allowed per parcel or lot.
Nothing in this paragraph shall prohibit the department from taking appropriate enforcement action pursuant to this chapter to abate or prohibit any activity otherwise exempt from permitting pursuant to this paragraph if the department can demonstrate
that the exempted activity has caused water pollution in violation of this chapter.
* * *
(d) The replacement or repair of existing docks and piers, except that fill material may not be used and the replacement or repaired dock or pier must be in the same location and of the same configuration and dimensions as the dock or pier being replaced or repaired. This does not preclude the use of different construction materials or minor deviations to allow upgrades to current structural and design standards.
Rule 62-330.051(5) provides, in pertinent part, that:
The activities meeting the limitations and restrictions below are exempt from permitting . . . .
Dock, Pier, Boat Ramp and Other Boating-related Work ‒
Installation or repair of pilings and dolphins associated with private docking facilities or piers that are exempt under Section 403.813(1)(b), F.S.;
Installation of private docks, piers, and recreational docking facilities, and installation of local governmental piers and recreational docking facilities, in accordance with Section 403.813(1)(b), F.S. This includes associated structures such as boat shelters, boat lifts, and roofs, provided:
The cumulative square footage of all structures located over wetlands and other surface waters does not exceed the limitations in Section 403.813(1)(b), F.S.;
No structure is enclosed on more than three sides with walls and doors;
Structures are not used for residential habitation or commercial purposes, or storage of materials other than those associated with water dependent recreational use; and
Any dock and associated structure shall be the sole dock as measured along the shoreline for a minimum distance of 65 feet, unless the parcel of land or individual lot as platted is less than 65 feet in length along the shoreline, in which case there may be one exempt dock allowed per parcel or lot.
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(d) Replacement or repair of existing docks and piers, including mooring piles, in accordance with Section 403.813(1)(d), F.S., provided the existing structure is still functional or has been rendered non- functional within the last year by a discrete event, such as a storm, flood, accident, or fire.
The photographic evidence in this proceeding demonstrates that the dock has been in existence since at least 1981, and was substantially intact even after the passage of Hurricane Wilma. At the time the work began to repair or replace the dock, the dock was functional. Work was halted on the dock construction as a result of the commencement of this proceeding.
The dock framing plan that accompanies the permit drawings indicate that the dock will be slightly less than 400- square feet.
Petitioners correctly admit that, even if the proposed dock did not meet the standards for replacement or repair, “the dock qualifies for exemption from permitting pursuant to § 403.813(1)(b),” and propose that the undersigned enter an order recommending that DEP grant regulatory approval.
Applicants have clearly established that the dock is eligible for and complies with the standards applicable to it under section 403.813(1)(d) and rule 62-330.051(5)(d). General Permit - Concrete Boat Ramp
“A ‘noticed general permit’ is a type of permit for a particular activity within specific parameters which has essentially been pre-approved by rule.” Wentworth v. State,
Dep't of Envtl. Prot., 771 So. 2d 1279, 1280 n.2 (Fla. 4th DCA 2000).
Florida Administrative Code Rule 62-330.417 provides, in pertinent part, that:
A general permit is granted . . . for construction, alteration, maintenance, and operation of a single boat ramp for the following entities or facilities:
An individual, detached single-family dwelling unit . . . .
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The boat ramp and associated facilities must meet all of the following conditions:
The work is not part of a larger plan of development that requires a permit under Part IV of Chapter 373, F.S.
A minimum navigational access of two feet below mean low water in tidal waters or mean annual low water in non-tidal waters must already exist to the proposed ramp. Depth indicators shall be installed at the ramp to identify the controlling depths of the navigational access.
There shall be no work in, on, or over submerged grassbeds or coral communities.
Dredging shall be limited to no more than 100 cubic yards, and in no case shall be more than is necessary to construct the boat ramp surface or restore the ramp to its original configuration and dimension.
The above-water portion of the boat ramp shall be paved or otherwise stabilized to prevent turbidity.
Work under this general permit shall not commence until the Agency has provided written confirmation that the applicant qualifies to use the general permit.
This general permit is limited to one use per parcel of property and cannot be combined with other general permits or exemptions.
Construction of the boat ramp is limited as follows:
The boat ramp for a single-family or multi-family dwelling unit, under paragraph (1)(a) or (b), is limited to a single lane and must not exceed a width of 20 feet, including the side slopes, with the boat ramp surface not to exceed a width of 12 feet.
Petitioners argue that the general permit for the boat ramp cannot be used since other structures on the property are being repaired, replaced, or maintained pursuant to exemptions, relying on the language in rule 62-330.417(2)(g). In response, the DEP argues that “language of the rule prohibits use of a General Permit to construct a boat ramp on a property in combination with other general permits or exemptions for a boat ramp. A General Permit can be used for a boat ramp and other permits or exemptions can be used for other types of activities.” There is simply no logical reason why an applicant’s intent to perform activities that are exempt from DEP regulation should negate the ability to use a general permit to construct a separate structure on the same property. Thus, the DEP’s construction of its rule is not only entitled to deference (see, DeLong v. Fla. Fish & Wildlife Conser. Comm’n,
So. 3d , 39 Fla. L. Weekly D1128 (Fla. 3rd DCA 2014); Fla. Wildlife Fed'n v. Collier Cnty., 819 So. 2d 200, 203 (Fla.
1st DCA 2002)), but is the more logical construction.
Given the findings of fact set forth herein, Applicants have clearly established that they meet the regulatory standards, and are therefore eligible to use the general permit for the boat ramp established by rule 62- 330.051(5)(d).
Proprietary Authorization
A request to use sovereignty submerged lands involves consideration of a number of general policies, standards, and criteria set forth in rule 18-21.004. Subsections applicable to this proceeding include portions of rule 18-21.004(1), (2), (3), and (7). The primary issues raised and argued by Petitioners include those provisions related to consideration of the public interest, and to consideration of riparian rights. Those issues are discussed in detail herein.
As to other issues set forth in rule 18-21.004, including but not limited to issues of water quality; sovereignty lands and associated resources; fish and wildlife habitat; and navigation, Applicants have proved, by a preponderance of competent, substantial, and credible evidence, that the proposed Permit meets the standards imposed by that rule.
Public Interest
Rule 18-21.004(1)(a) provides, in pertinent part, that “[f]or approval, all activities on sovereignty lands must be not contrary to the public interest ”
Rule 18-21.003(51) defines “public interest” as
follows:
(51) “Public interest” 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 board shall consider the ultimate project and purpose to be served by said use, sale, lease, or transfer of lands or materials.
The factors that go into a determination of the public interest are not otherwise defined in chapter 18-21. However, section 373.414(1) sets forth factors that are to be balanced in determining public interest in the context of obtaining individual or conceptual approval permits. Section 373.414(1) is not applicable to authorizations for use of sovereignty submerged lands. However, the factors set forth in section 373.414(1) are useful and instructive -- though not dispositive -- as to the nature of the criteria that may go into a determination of public interest. In that regard, section 373.414(1)(a) provides that:
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 governing board or the department 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;
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.
The preponderance of the evidence in this case demonstrates that the structures authorized by the Permit will not cause adverse effects to or otherwise be inconsistent with the criteria listed in section 373.414(1)(a).
In addition to the foregoing, Applicants have agreed to a donation of $10,000.00 to The Turtle Hospital, a 501(c)(3) organization, located in Marathon, Florida, with a mission of protection, rescue, and rehabilitation of injured or diseased
sea turtles. That donation and support of the hospital benefits the public.
Given the totality of the evidence adduced at the hearing in this case, the undersigned concludes that sovereign submerged lands authorization for the structures will not be contrary to the public interest.
Riparian Rights
Rule 18-21.004(3) provides that
(3) 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, as defined in Section 253.141, F.S., of upland property owners adjacent to sovereignty submerged lands.
Satisfactory evidence of sufficient upland interest is required for activities on sovereignty submerged lands riparian to uplands, unless otherwise specified in this chapter . . . .
* * *
(d) Except as provided herein, all structures, including. . . jetties and groins . . ., must be set back a minimum of
25 feet inside the applicant’s riparian rights lines. . . . Exceptions to the setbacks are: . . . bulkheads, seawalls, riprap or similar shoreline protection structures located along the shoreline;
. . . structures and activities built or occurring prior to any requirement for Board authorization; [or] when a letter of concurrence is obtained from the affected
adjacent upland riparian owner . . . (emphasis added).
Applicants obtained letters of concurrence from the owners of the adjacent upland riparian properties. Petitioners are not owners of adjacent upland riparian property.
The structures for which sovereignty lands authorization is sought are shoreline protection structures of sufficient similarity to the listed forms of shoreline stabilization to fall within the ambit of the exception to the setback requirement, or were originally constructed prior to any requirement for authorization from the Board of Trustees.
Given the totality of the evidence adduced at the hearing in this case, the undersigned concludes that sovereign submerged lands authorization for the structures will not violate the riparian rights provisions of rule 18-21.004(3). Criteria for a Letter of Consent
Florida Administrative Code Rule 18-21.005(1) provides, in pertinent part, that:
(1) The appropriate form of authorization, for activities that meet the applicable rules and statutes of the Board, shall be determined based on consideration of all of the provisions of this rule. It is the intent of the Board that the form of authorization shall grant the least amount of interest in the sovereignty submerged land necessary for the activity. For
activities not specifically listed, the Board will consider the extent of interest needed and the nature of the proposed
activity to determine which form of authorization is appropriate . . . .
* * *
(c) Letter of Consent. Written authorization is required for each of the following activities. These authorizations shall be subject to the payment of any applicable severance fees.
1. One minimum-size private residential single-family dock or pier per parcel.
* * *
4. Activities that are exempt from the requirement to obtain a permit under Section 403.813(1) . . . (d)[and](f) . . .
, F.S., but that are not eligible for consent by rule.
* * *
7. Unless addressed in a currently valid Board authorization, repair or replacement of a functional structure or activity, including maintenance dredging, in the same dimensions and for the same type of use.
Groins
Rule 18-21.005(1) provides that “[f]or activities not specifically listed, the Board will consider the extent of interest needed and the nature of the proposed activity to determine which form of authorization is appropriate.”
The three groins at issue clearly meet the standard established in rule 18-21.005(1)(c)7., since the work performed constitutes the repair of functional structures in the same dimensions and for the same type of use.
Rule 18-21.005(1)(e)3. provides that a sovereignty submerged land easement is required for “[g]roins, breakwaters, and shoreline protection structures, except when constructed as part of a docking structure that requires a lease.”
Since both of the referenced sections apply to the groins at issue, consideration must be given to the provision in rule 18-21.005(1) that “the form of authorization shall grant the least amount of interest in the sovereignty submerged land necessary for the activity.” A Letter of Consent is a lesser form of authorization than is an Easement. Thus, the Letter of Consent is the appropriate form of authorization pursuant to rule 18-21.005(1).
For the reasons set forth herein, Applicants have established, through a preponderance of competent, substantial evidence, that the NE Jetty, the SW Jetty, and the Mid-bulkhead meet the standards for, and are therefore eligible to receive a proprietary Letter of Consent pursuant to rule 18-21.005(1)(c)7.
Channel
Applicants have established, through a preponderance of competent, substantial evidence, that the Channel meets the standards for, and is therefore eligible to receive a proprietary Letter of Consent pursuant to rule 18- 21.005(1)(c)4., since the dredging of the Channel constitutes exempt maintenance dredging under section 403.813(1)(f).
Dock
Applicants have established, through a preponderance of competent, substantial evidence, that the proposed dock meets the standards for, and is therefore eligible to receive a proprietary Letter of Consent pursuant to rule 18- 21.005(1)(c)4., since the repair and replacement of the dock is exempt under section 403.813(1)(d).
In recognition of the standard applicable to sovereignty submerged lands approval for a private residential single-family dock, Petitioners have proposed that the undersigned enter an order recommending that the dock be approved.
Boat Ramp
The boat ramp is to be constructed entirely above the mean high water line. Thus, proprietary authorization from the Board of Trustees is not required.
In recognition of the standard applicable to sovereignty submerged lands approval for a boat ramp constructed above the mean high water line, Petitioners have proposed that the undersigned enter an order recommending that the boat ramp be approved, with the condition that any construction below mean high water line be removed.
Beach Area
The beach area was formed from sand and sediment trapped between the SW Jetty and the Mid-bulkhead since their construction. Hurricane Wilma deposited substantial amounts of sand and sediment onto and waterward of the pre-Wilma shoreline. The evidence suggests that the sand and sediment was moved around to fill in the gully created adjacent to the SW Jetty, and to groom and restore the shoreline. The preponderance of the competent, substantial, and credible evidence adduced at the hearing demonstrates that there was no off-site fill placed on the beach area, either immediately after Hurricane Wilma or in conjunction with construction occurring in early 2011, except for a small amount upland of the line of mean high water which is suggestive of an incidental spillover of fill used to raise the elevation of the interior of the Mid-bulkhead. The action of tides and weather since Hurricane Wilma has returned the beach area and shoreline to substantially that which existed before the storm.
Rule 18-21.005 does not provide a listing for an area of the nature of the beach area. Thus, it is appropriate to rely on the provision of rule 18-21.005(1) which provides that “[f]or activities not specifically listed, the Board will consider the extent of interest needed and the nature of the
proposed activity to determine which form of authorization is appropriate.”
Due to the nature of the beach area as one created as a result of the combined effect of otherwise lawful shoreline stabilization structures and significant natural storm events, the Board of Trustees has proposed to issue a Letter of Consent as proprietary authorization for the area waterward of the mean high water line. Since the beach area is generally similar in use and impact to those activities listed in rule 18- 21.005(1)(c), including exempt activities, it was well within the discretion of the Board of Trustees to authorize a Letter of Consent for the accreted encroachment of the beach area onto
sovereign lands.
ATTORNEY’S FEES
On November 18, 2013, Applicants filed a “Motion for Attorney’s Fees and Costs” against Petitioners under the authority of section 120.595 and section 120.569(2)(e). Ruling on that motion was reserved.
On April 10, 2014, after the completion of the final hearing, Applicants filed an “Amended Motion for Sanctions, Attorney’s Fees, and Costs and Request to Retain Jurisdiction to Determine Amount of Sanctions, Attorney’s Fees and Costs.” The motion sought attorney’s fees, costs and sanctions under the authority of section 120.595, section 120.569(2)(e), and section
57.105. On April 22, 2014, Petitioners filed a response in opposition to the motion.
On April 29, 2014, the DEP filed a “Motion for Attorney’s Fees, Costs, and Sanctions” under the authority of section 120.595 and section 120.569(2)(e). On May 5, 2014, Petitioners filed a response in opposition to the motion.
On May 2, 2014, Applicants filed a “Motion for Sanctions, Attorney’s Fees, Costs, and Damages Against Petitioners, Spinrads, pursuant to Section 57.105(5), Florida Statutes.”
On June 17, 2014, the DEP filed a “Motion for Attorney’s Fees pursuant to Section 57.105, Florida Statutes Against Petitioners, William and Christina Guerrero.” The substance of the motion indicates that it is, its title notwithstanding, directed at Petitioners, Bernard Spinrad and Marien Spinrad. The motion sought attorney’s fees under the authority of section 57.105. On June 19, 2014, Petitioners filed a response in opposition to the motion.
Section 120.569(2)(e)
Section 120.569(2)(e) provides that:
(e) All pleadings, motions, or other papers filed in the proceeding must be signed by the party, the party’s attorney, or the party’s qualified representative. The signature constitutes a certificate that the person has read the pleading, motion, or other paper and that, based upon
reasonable inquiry, it is not interposed for any improper purposes, such as to harass or to cause unnecessary delay, or for frivolous purpose or needless increase in the cost of litigation. If a pleading, motion, or other paper is signed in violation of these requirements, the presiding officer shall impose upon the person who signed it, the represented party, or both, an appropriate sanction, which may include an order to pay the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.
A frivolous claim is not merely one that is likely to be unsuccessful. Rather, it must be so clearly devoid of merit that there is little, if any, prospect of success. French v. Dep't of Child. & Fams., 920 So. 2d 671, 679 (Fla. 5th DCA
2006). “[A] finding of improper purpose could not stand ‘if a reasonably clear legal justification can be shown for the filing of the paper.’” Procacci Commer. Realty v. Dep’t of HRS, 690 So. 2d 603, 608 (Fla. 1st DCA 1997), citing Mercedes Lighting &
Electrical Supply v. State, Dep’t of Gen. Servs., 560 So. 2d
272, 277 (Fla. 1st DCA 1990).
Based upon a full review and consideration of the record in this proceeding, and applying an objective standard based on reasonable inquiry regarding pertinent facts and applicable law, the undersigned finds that the facts of this case, and the application of the law as asserted by Petitioners
were not made for an improper purpose under section 120.569(2)(e), Florida Statutes.
Section 120.595
Section 120.595 provides, in pertinent part, that:
(1) CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION 120.57(1).—
* * *
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. 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:
1. “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 litigation, licensing, or securing the approval of an activity.
For the reasons set forth in the analysis of the motions filed under section 120.269(2)(e), and based upon a full review and consideration of the record in this proceeding, the undersigned finds that the facts of this case, and the application of the law as asserted by Petitioners were not made for an improper purpose under section 120.595(1).
Section 57.105
Section 57.105 provides, in pertinent part, that:
Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee, . . . on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
Was not supported by the material facts necessary to establish the claim or defense; or
Would not be supported by the application of then-existing law to those material facts.
At any time in any civil proceeding or action in which the moving party proves by a preponderance of the evidence that any action taken by the opposing party,. . . was taken primarily for the purpose of unreasonable delay, the court shall award damages to the moving party for its reasonable expenses incurred in obtaining the order, which may include attorney’s fees, and other loss resulting from the improper delay.
* * *
A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.
In administrative proceedings under chapter 120, an administrative law judge shall award a reasonable attorney’s fee and damages to be paid to the prevailing party in equal amounts by the losing party and a losing party’s attorney or qualified representative in the same manner and upon the same basis as provided in subsections (1)-(4). Such award shall be a final order subject to judicial review pursuant to
s. 120.68 . . . .
The motions for attorney’s fees under section 57.105 filed by Applicants and the DEP concern actions that occurred well before the motions were served on Petitioners, and pleadings that were filed and disposed of without a motion for
attorney’s fees having been filed within the “safe harbor” period established in section 57.105(4). The purpose of the requirement that a party first serve a motion seeking fees, followed by its filing 21 days later, is to afford a pleading party a last clear chance to withdraw a frivolous claim. Global
Xtreme, Inc. v. Advanced Aircraft Ctr., 122 So. 3d 487, 490 (Fla. 3rd DCA 2013). The failure of Applicants and the DEP to file a motion under section 57.105 contemporaneously with the allegedly offending action or pleading does not comply with section 57.105(4).
The motions for attorney’s fees under section 57.105 were also filed after the conclusion of the final hearing. As stated by the Fourth District Court of Appeal:
The statute must be strictly construed as it awards attorney's fees in derogation of the common law . . . . Filing the motion with the court after the proceedings concluded also does not comply with the statute, as Anchor did not then have the statutorily required twenty-one days in which to withdraw the objected to
claims. O'Daniel v. Bd. of Comm'rs, 916 So. 2d 40 (Fla. 3d DCA 2006) (striking attorney's fees under section
57.105(4) where the defendant waited until the case was over to file its fee motion). Therefore, we reverse with directions that the administrative law judge vacate the order awarding attorney's fees to Sunshine.
Anchor Towing, Inc. v. Dep’t of Transp., 10 So. 3d 670, 671-672
(Fla. 3d DCA 2009). Based thereon, the service and filing of
motions after the final hearing was completed does not meet the “safe harbor” provision as established in section 57.105(4).
Since most of the activities authorized by the Permit had been completed at the time of the hearing, there is little to suggest that the actions of Petitioners in challenging the Permit were taken for purposes of delaying the outcome.
In addition to the foregoing, “section 57.105 does not require a finding of frivolousness to justify sanctions, but only a finding that the claim lacked a basis in material facts or then-existing law.” Martin Cnty. Conser. Alliance v. Martin
Cnty., 73 So. 3d 856, 858 (Fla. 1st DCA 2011); see also Gopman
v. Dep’t of Educ., 974 So. 2d 1208, 1210 (Fla. 1st DCA 2008).
The First District Court of Appeal has established that:
[S]ection 57.105 must be applied carefully to ensure that it serves the purpose for which it was intended, which was to deter frivolous pleadings.
In determining whether a party is entitled to statutory attorney's fees under section 57.105, Florida Statutes, frivolousness is determined when the claim or defense was initially filed; if the claim or defense is not initially frivolous, the court must then determine whether the claim or defense became frivolous after the suit was filed. In so doing, the court determines if the party or its counsel knew or should have known that the claim or defense asserted was not supported by the facts or an application of existing law. An award of fees is not always appropriate under
section 57.105, even when the party seeking fees was successful in obtaining the dismissal of the action or summary judgment in an action. (internal citations omitted).
Wendy's v. Vandergriff, 865 So. 2d 520, 523 (Fla. 1st DCA 2003)
The standard under section 57.105 is to be applied on a case-by-case basis. In that regard:
While the revised statute incorporates the ‘not supported by the material facts or would not be supported by application of then-existing law to those material facts’ standard instead of the ‘frivolous’ standard of the earlier statute, an all encompassing definition of the new standard defies us. It is clear that the bar for imposition of sanctions has been lowered, but just how far it has been lowered is an open question requiring a case by case analysis.
Id. at 524 (citing Mullins v. Kennelly, 847 So. 2d at 1155, n.4. (Fla. 5th DCA 2003)).
The term “supported by the material facts” in section 57.105(1)(a), means that the “party possesses admissible evidence sufficient to establish the fact if accepted by the finder of fact.” Albritton v. Ferrera, 913 So. 2d 5, 7, fn.1 (Fla. 1st DCA 2005).
Based upon a full review and consideration of the record in this proceeding, the undersigned finds that the evidence relied upon by Petitioners and the application of the law as asserted by Petitioners were not so lacking in merit as
to warrant an award of attorney’s fees or costs under section 57.105, Florida Statutes.
Nonetheless, section 57.105(5) is a “prevailing party” statute. Thus, until the final order is entered in this case, the undersigned cannot rule on the motions requesting fees under the authority of section 57.105. As to those claims, jurisdiction is reserved in the event Applicants and DEP are ultimately determined to be the prevailing parties in this proceeding.
Conclusion
Based on the findings of fact and legal authority set forth herein, Applicants’ November 18, 2013, Motion for Attorney’s Fees and Costs; Applicants’ April 10, 2014, Amended Motion for Sanctions, Attorney’s Fees, and Costs and Request to Retain Jurisdiction to Determine Amount of Sanctions, Attorney’s Fees and Costs (for relief sought under sections 120.569(2)(e) and 120.595); and DEP’s April 29, 2014, Motion for Attorney’s Fees, Costs, and Sanctions are DENIED.
Jurisdiction is reserved by the undersigned to rule, by separate order after issuance of the final order in this proceeding, on Applicants’ April 10, 2014, Amended Motion for Sanctions, Attorney’s Fees, and Costs and Request to Retain Jurisdiction to Determine Amount of Sanctions, Attorney’s Fees and Costs (for relief sought under section 57.105); Applicants’
May 2, 2014, Motion for Sanctions, Attorney’s Fees, Costs, and Damages Against Petitioners, Spinrads, pursuant to Section 57.105(5), Florida Statutes; and DEP’s June 17, 2014, Motion for Attorney’s Fees pursuant to Section 57.105, Florida Statutes.
Based on the foregoing Findings of Fact and Conclusions of Law set forth herein it is RECOMMENDED that the Department of Environmental Protection enter a final order approving the February 20, 2013, proposed Permit, as conditioned by Applicants’ December 12, 2013, Proposed Changes to the Pending Agency Action.
DONE AND ENTERED this 25th day of July, 2014, in Tallahassee, Leon County, Florida.
S
E. GARY EARLY Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 2014.
ENDNOTES
1/ The undersigned recognizes that much of the construction authorized by the February 20, 2013, notice of proposed agency action has been substantially completed. However, since a petition for hearing was timely filed, the Permit remains proposed agency action, subject to the imposition of additional conditions or denial.
2/ The Order may be found at https://www.doah.state.fl.us/DocDoc/2013/002254/13002254OGEN- 072313-14385438.pdf
3/ See Petitioner's September 23, 2013, Motion to Exclude from Trial Certain Testimony Related to Florida Statute § 373.406(6) by DEP Personnel, and the September 14, 2013, Order Denying Motion to Exclude Testimony.
4/ By rough count of the undersigned, between the June 14, 2013 commencement of this proceeding, and the November 18, 2013, commencement of the final hearing, the parties filed no fewer than 37 motions seeking affirmative relief of one type or another, for which no fewer than 14 telephonic motion hearings and pre-hearing conferences were conducted (not including teleconferences requested by the parties for the undersigned to resolve witness questioning disputes during depositions), and which resulted in the issuance of no fewer than 21 written orders, a number of which made substantive rulings on multiple motions.
After the March 31-April 4, 2014, portion of the hearing was commenced and to the present, 13 written motions were filed, in addition to several ore tenus motions made during the hearing, which resulted in the issuance of no fewer than eight written orders.
In addition to the foregoing, interlocutory appeals were taken of two orders of the undersigned, one by the Applicants and one by Petitioners, both of which were dismissed by the Third District Court of Appeal.
5/ Only a limited number of photographs from the multi-page Guerrero Exhibits 434 and 435 were offered and received in the Applicants’ case-in-chief. The remaining photographs in each exhibit were offered and received in evidence during Petitioner’s case-in-chief.
6/ Although Mr. Iglehart was not tendered, his qualifications were such that, in accordance with his listing in the DEP prehearing statement, he exhibited a degree of knowledge, skill, experience, training, and education in the areas listed that served to assist the undersigned in understanding the evidence or in determining a fact in issue, to warrant his being accepted as an expert, thus allowing consideration of his testimony offered in the form of an opinion.
7/ There was considerable discussion during the hearing as to the accuracy of the dates depicted on the individual pages of Guerrero Exhibit RG-402. Some of the dates were agreed upon due to identifying information on the photographs themselves, which were in many cases were taken by or for the Florida Department of Transportation, Monroe County, or the City of Marathon. As discussed on the record, the undersigned is able to ascertain the sequence in which other photographs were taken by observation of features and structures. The precise dates of the photographs are not as important as the order in which various features appear.
8/ Both Ms. Spinrad, in her testimony at the hearing, and
Mr. Spinrad, in his deposition testimony, stated that everything was fine at their property until February, 2011 when they noticed construction at the Applicants’ property. Ms. Spinrad, when asked whether she observed any muck for the ten years that Petitioners owned the property prior to February 2011, testified that “[p]rior to that, no, we never had any muck and I was never stuck in any muck in the water. I was able to go in the water and reach the swimmable part and swim freely, bring a kayak, take it out without getting stuck.” She testified that prior to February 2011 and for the ten years preceding, there had been seagrass beds “quite visible from the shoreline as well as from our terrace.” She testified that prior to February 2011, there was “no smell or noticeable odor.” She testified that turtles nested on her beach from 2006 through 2010 nesting seasons, and that it was only after February 2011 that she no longer observed them. Similar to Ms. Spinrad, Mr. Spinrad testified that the accumulation of muck started “[p]robably within three to six months [of the 2011 construction], shortly thereafter.” He testified that he observed turtle nesting on Petitioners’ property “sometime in early 2011, maybe a few weeks after our complaint.”
The evidence in this case is clear that the southwest jetty was in existance in its approximate size and location since no later than 1985, has served as a shore protection structure
since that time, was repaired and in its current configuration by 2006, and had its concrete cap installed by late in 2008.
From 1974 to 2011, the area to the southwest of the southwest jetty was “about equalized.”
The evidence is equally clear that the mid-bulkhead was continuously functional and in existance at its approximate size and location since no later than 1985.
Finally, the northeast jetty was in its approximate size and location since no later than 1985, and although it may have suffered some degradation in the intervening years, remained functional as a shoreline stabilization structure up to the time of its repair in 2011.
If there was a change in the consistency and smell of the substrate, or of conditions that affected sea turtles, seagrass, or other biota from that naturally existing on Grassy Key, as asserted by Petitioners -- a finding that is not made herein -- Petitioners’ testimony would suggest that such changes could only have been occassioned by the singular material change in the structures that occurred in 2011, that being the construction of the mid-bulkhead extension, a structure that is slated for removal under the terms of the proposed permit.
Thus, the testimony of Petitioners supports a finding that the southwest jetty, the mid-bulkhead, and the northeast jetty have no effect on the Petitioners’ shoreline, the composition of the substrate of nearshore areas near their shoreline, or of plant, fish, or wildlife resources in the area.
9/ Petitioners argue that “[t]he activities proposed by GUERRERO are within waters which are subject to federal jurisdiction under Section 404 of the federal Clean Water Act, and are therefore not eligible for a de minimis exemption under
§ 373.406, Fla. Stat.,” citing the last sentence of section 373.406(14) as authority for their statement. That final sentence of section 373.406 provides that:
This exemption does not expand the jurisdiction of the department or the water management districts and does not apply to activities that discharge dredged or fill material into waters of the United States, including wetlands, subject to federal jurisdiction under s. 404 of the federal Clean WaterAct, 33 U.S.C. s. 1344." Id. (Emphasis added).
Taken in total isolation, the last sentence of section 373.406(14) could support Petitioner’s assertion that the structures subject to the Permit are not eligible for an exemption under section 373.406(6).
Petitioners’ argument is obviously predicated on the belief (or hope) that the undersigned would not bother to read the entirety of section 373.406(14). That portion of section 373.406(14) that was omitted by Petitioners reads as follows:
Nothing in this part, or in any rule, regulation, or order adopted pursuant to this part, may require a permit for activities affecting wetlands created solely by the unauthorized flooding or interference with the natural flow of surface water caused by an unaffiliated adjoining landowner. Requests to qualify for this exemption must be made within 7 years after the cause of such unauthorized flooding or unauthorized interference with the natural flow of surface water and must be submitted in writing to the district or department.
Such activities may not begin without a written determination from the district or department confirming that the activity qualifies for the exemption. (Emphasis added).
There is no allegation or evidence that the Property contained “wetlands created solely by the unauthorized flooding or interference with the natural flow of surface water caused by an unaffiliated adjoining landowner.” Thus, section 373.406(14) is plainly inapplicable to this proceeding, and Petitioners’ assertions regarding the effect of that section are rejected.
COPIES FURNISHED:
Brynna J. Ross, Esquire
Department of Environmental Protection Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Patricia Eileen Comer, Esquire Department of Environmental Protection Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32399
Patricia M. Silver, Esquire Silver Law Group
Post Office Box 710 Islamorada, Florida 33036
John William Annesser, Esquire Silver Law Group
Post Office Box 710 Islamorada, Florida 33036
Luna E. Phillips, Esquire Deborah K. Tyson, Esquire
Gunster, Yoakley and Stewart, P.A.
450 East Las Olas Boulevard, Suite 1400 Fort Lauderdale, Florida 33301-4206
John J. Fumero, Esquire
Nason, Yeager, Gerson, White, and Lioce, P.A. 7700 Congress Avenue, Suite 2201
Boca Raton, Florida 33487
Lea Crandall, Agency Clerk
Department of Environmental Protection Douglas Building, Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Matthew Z. Leopold, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection Douglas Building
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.
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 08, 2014 | Agency Final Order | |
| Jul. 25, 2014 | Recommended Order | The Applicants demonstrated that they were entitled to the exemptions and general permit for structures and activiites on their property, and to the soverign submerged lands authorizations related thereto. |
