STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FREDERICK B. SPIEGEL, )

)

Petitioner, )

)

vs. ) CASE NO. 78-233

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, STATE OF FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter on January 3-4, 1979, at Naples, Florida, and on January 29, 1979, at Tallahassee, Florida.

APPEARANCES

For Petitioner: Howard Horowitz, Esquire

3550 Biscayne Boulevard, Suite 402

Miami, Florida 33137

For Collier William Blackwell, Esquire Development 3003 North Miami Trail Corporation: Naples, Florida

For Respondent: H. Ray Allen, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301 STATEMENT OF THE ISSUE

Whether Petitioner should be granted a permit pursuant to Chapters 253 and 403, Florida Statutes, and Public Law 92-500, to place approximately 90,000 cubic yards of material into approximately 16 acres of land for future development in Collier County.

FINDINGS OF FACT

1. Collier Development Corporation, Naples, Florida, owns a triangular tract of land consisting of approximately 16 acres in Naples, Florida. In 1958, the Trustees of the Internal Improvement Fund conveyed by quitclaim deed to Collier Development Corporation all its interests in the property. A 1958 affidavit of Collier's surveyor who prepared the legal description of the land was filed in the Collier County public records and states that the land conveyed by the quitclaim deed was "high land" erroneously shown as bay bottom land according to the original government survey, and that the deed was executed in exchange for the conveyance of certain parcels of bay bottom land in Naples Bay to the Trustees. (Exhibits 1-2)

2. In 1976, Petitioner executed an option agreement with Collier Development Corporation to purchase the land in question, contingent upon certain conditions including a requirement to obtain any required fill permits. On December 27, 1976, Petitioner assigned the option agreement to Michael S. Spiegel and himself as joint tenants. On March 14, 1977, a "short form" application was filed by Petitioner, as authorized by Collier Development Corporation, with Respondent to fill the land above the mean high water line to building grade for future residential, multi-family, or commercial uses. The application reflected that 400 cubic yards of rock riprap would be placed at least five feet upland of the designated mean high water line along the boundary of the property that faced the Gordon River and Rock Creek. The riprap revetment is designed to provide a method of containing upland fill material. The application contemplates that a fabric-like material "Mirafi" will be placed on the ground and wrapped over the riprap barrier. The application further provides that approximately 90,000 pounds of fill material will be trucked into the site and placed behind the riprap material to fill the land to a minimum elevation of four feet. It is also proposed to slope the fill material behind the riprap and plant grass seed thereon. In October, 1977, Petitioner filed a "long form" application which merely amplified the original application. The mean high water line was established by a survey performed under standard procedures and which utilized the existing bulkhead line as a point of reference. The survey was conducted in 1977 and 1978, and the procedures used were approved by and the survey filed in the Department of Natural Resources on June 26, 1978. (Testimony of Park, Lawson, Exhibits 4, 6, 8, 11)

   
   

3. By letter dated January 26, 1978, Respondent provided notice of its intent to deny the permit application pursuant to Chapters 253 and 403, Florida Statutes, and Public Law 92-500. The reasons stated for the proposed denial generally were that filling the land would destroy mangrove vegetation which provides a major input of organic material to estuarine tropic webs, and filters and assimilates pollutants from upland runoff. It was stated that the proposed project would eliminate approximately 15 acres of submerged lands and transition zones, as defined in Chapter 17-4, Florida Administrative Code, which would reduce the quality and quantity of the state's marine resources adjacent to Class II waters and "tend to cause degradation of water quality conditions." Thereafter, on January 25, 1978, Petitioner submitted a petition for hearing wherein the jurisdiction of the Respondent in the matter and its grounds for the proposed denial were challenged. (Exhibit 5)

   
   

4. The land in question is located south and adjacent to the confluence of the Gordon River and Rock Creek along the north side of U.S. Highway 41. The Gordon River and Rock Creek are tributaries of Naples Bay and all are Class II waters. The area is vegetated by red mangroves with a lesser number of white and black mangroves. A pond of about one-half acre surrounded by red mangroves is located in the southern section of the tract which occasionally overflows into a ditch running parallel to U.S. 41 located within the highway right-of- way. There is a berm alongside the ditch designed to prevent highway runoff from flowing onto Petitioner's land. During high tides, most of the land is inundated to varied depths ranging from two to eight inches. Certain marine vegetational species are present on portions of the land, such as sea grape, sea purslane, sea daisy, and button wood. Certain marine animal life is present in the mangrove area, including coffee bean snails, ribbed mussels, marsh clams, mangrove crabs, fiddler crabs, and mosquito fish. Other marine species, such as common oysters, scorched mussels, and barnacles inhabit the Rock Creek shore line. There is sparse bird population on Petitioner's land that may in part be

   due to the proximity of Naples Airport. (Testimony of Lawson, Park, Carroll, Fields, M. Spiegel, Exhibits 3, 7, 10)

   
   

5. The quality of water in the Gordon River and Rock Creek is adversely effected to some degree by receipt of sewage plant effluent, discharge from nearby canals and runoff from residential and commercial areas. As a result of high bacterial count in these waters, shell fishing and swimming is not permitted. The mangrove forest on Petitioner's property is in a stressed condition as evidenced by the thinness of the canopy. It is probable that this condition was caused primarily by the introduction of fresh water from canals into the surrounding waters. (Testimony of Carroll, Fields, Erwin, Yokel)

   
   

6. Mangrove wetlands are an important component of the estuarine ecosystem which provide nutrient stabilization and transformation in the supply of an organic base to the estuarine food chain, filtration of upland runoff, and storage of storm waters. They are a nursery for fish and invertebrate species, and a fish and wildlife habitat. The mangrove system on Petitioner's property is productive and contributing to the needs of marine life in the Naples Bay area. In this respect, most of the detritus produced by the mangrove system occurs below the mean high water line. However, the tidal flow during storm conditions at certain times of the year can release accumulated organic matter from the higher areas. This generally occurs in late summer and early fall when feeding demands of organisms are high. (Testimony of Erwin, Yokel)

   
   

7. Although no system for containing surface water runoff was set forth in Petitioner's permit application, it is planned that such runoff will be retained on the site by a site drainage plan that would be accomplished by grading and the use of the existing pond or other means of retention, in addition to the natural percolation into the sandy fill material. (Testimony of Park)

   
   

8. The application did not specify the precise distance from the mean high water line at which fill would be placed, but Petitioner clarified this point at the hearing. Fill material will not be placed closer than 100 feet upland of the mean high water line. The mangrove area left intact below that point will enable the ecological system to survive. However, due to the fact that the Naples Bay area does not produce sufficient organic matter to fully support animal life in the area, the loss of a substantial portion of mangroves will impact on the detrital food chain to some extent. (Testimony of Carroll, Yokel)

   
   

   CONCLUSIONS OF LAW

   
   

9. Respondent predicates its proposed denial of Petitioner's permit application on both Chapter 253 and 403, Florida Statutes. Although Section

   253.124 requires local governmental approval and that of the Trustees of the Internal Improvement Trust Fund to fill land "bordering on or in the navigable waters of the state," Respondent's Rule 17-4.29(1), F.A.C., requires a departmental permit only for such activities conducted "at or below the line of mean high water." Here, the application is to fill the land in question not less than 100 feet landward of the mean high water line as established by a survey conducted under proper procedures that were approved by the Department of Natural Resources. No competent evidence was presented by Respondent to impeach or otherwise show that the established mean high water line on Petitioner's property is erroneous. Accordingly, it is concluded that Respondent has no juridiction in this matter under Chapter 253, F.S. Therefore, those Chapter 253 considerations of conservation of fish, marine and wildlife or other natural resources that serve as habitat or feeding grounds are not in issue in this proceeding.

10. Respondent bases its Chapter 403 jurisdiction on the claim that the proposed filling activity will be conducted in the submerged land and transitional zone of natural tributaries to Naples Bay, i.e., the Gordon River and Rock Creek, as provided by its Rule 17-4.28, F.A.C. The rule states that since the natural border of certain water bodies may be difficult to establish, the vegetation indices in Rule 17-4.02(17(19) is a guide for such a determination. It further states the intent of the rule to include in the boundaries of water bodies defined therein areas that are customarily submerged and which exchange waters with a recognizable water body described in the rule. The definition of "submerged land" found in Rule 17-4.02(17) includes black, white and red mangrove, and subparagraph (19) of the rule includes sea grape, sea daisy, button wood, and sea purslane as being species found in the "transitional zone." "Filling," by definition in Rule 17-4.02(16), is "the deposition, by any means, of materials onto submerged lands or the transitional zone of a submerged land." The evidence establishes that the vegetational species present on all but a small portion of Petitioner's land are such as to fall within the definitions of submerged lands and transitional zone, and thus provide Respondent with Chapter 403 jurisdiction as to water quality. Petitioner contends that Respondent is estopped from making such determination due to the fact that the quitclaim deed to Petitioner from the Trustees of the Internal Improvement Trust Fund relinquished any claim to the "high lands" in question and that any denial of the requested permit would constitute the assertion of a right against such land contrary to contract between Petitioner and the state. This argument is without merit in that Respondent makes no affirmative claim against the land, but merely is exercising its statutory function to control any use which would contravene existing state laws and regulations. The fact that the aforesaid deed may have described Petitioner's property as "high lands" cannot serve to negate or overcome the existing rules which specify the physical characteristics governing the delineation of lands within Respondent's jurisdiction.

    
    

11. The remaining question is whether or not Petitioner has provided reasonable assurances that the short-term and long-term effects of the proposed filling of the land in question will not result in violations of the water quality criteria, standards, requirements and provisions of Chapter 17-3, F.A.C., (Rule 17-4.28(3)) Respondent's main assertion in this regard is that retention of the mangrove area is important from a water quality standpoint since it serves to filter and assimilate pollutants from upland runoff. In view of the fact that Petitioner intends to take measures designed to retain such runoff, and will preserve a substantial fringe of mangroves which will serve as filter to any escaping storm water runoff from the riprap barrier, it is concluded that the necessary assurances have been provided that water quality will not be degraded in violation of state standards.

    
    

12. Respondent's Proposed Findings of Fact, Conclusions of Law and Recommended Order has been fully considered, and any parts thereof not adopted in this Recommended Order are not deemed warranted.

RECOMMENDATION

That Respondent issue the requested permit to Petitioner, subject to the modification thereto made at the hearing with regard to the 100' setback as set forth in paragraph 8 of the foregoing Findings of Fact.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of February, 1979.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1979.

COPIES FURNISHED:

H. Ray Allen, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Howard Horowitz, Esquire 3550 Biscayne Boulevard

Suite 402

Miami, Florida 33137

William Blackwell, Esquire 3003 North Miami Trail Naples, Florida

Docket for Case No: 78-000233

Orders for Case No: 78-000233