STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
KYLE BROTHERS LAND COMPANY, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 81-1240
) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held before the Division of Administrative Hearings by its duly designated Hearing Officer, DONALD R. ALEXANDER, on October 5 and 6, 1981, in Key West, Florida.
APPEARANCES
For Petitioner: Michael E. Egan, Esquire
Jane E. Heerema, Esquire Post Office Box 1386 Tallahassee, Florida 32302
For Respondent: Paul R. Ezatoff, Jr., Esquire
2600 Blair Stone Road Tallahassee, Florida 32301
BACKGROUND
By application dated November 12, 1980, Petitioner, Kyle Brothers Land Company, Inc., 1/ sought the issuance of a permit/water quality certification to excavate four canals 525 feet long by 25 feet wide each with sixteen 10 feet wide by 35 feet long boat moorings, and to complete excavation on two partially completed canals, connecting them to an existing 50 foot main canal, all of which are located in Big Pine Key, Monroe County, Florida.
On April 8, 1981, Respondent, Department of Environmental Regulation, issued its Intent to Deny the requested permit application on the grounds (a) ".... applicant (had) not provided reasonable assurance pursuant to Rules 17-
and 17-4.28, Florida Administrative Code, that long-term impacts of the project would not result in violations of State Water Quality Standards for all surface waters and for Class III surface waters...", those standards being biochemical oxygen demand, detergents, oils and greases, bacteriological quality, dissolved oxygen and nutrients; (b)" .... the project (would) result in the following matter adverse to the public interest: [i]nterference with the conservation of fish, marine and wildlife", and " .... the applicant (had) not provided an affirmative showing of the public interest which will be served by the proposed dredging."
Petitioner disputed the allegations set forth in the intent to Deny and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. The matter was transferred by Respondent to the Division of Administrative Hearings on April 28, 1981, with a request that a Hearing Officer be assigned to conduct a hearing. By Notice of Hearing dated June 13, 1951, the final hearing was scheduled to commence on August 4, 1981, in Key West, Florida. At the request of the parties, the final hearing was rescheduled to begin on August 10 and then finally to October 5, 1981, at the same location.
At the final hearing Petitioner presented the testimony of George W. Kyle, Paul C. Kenson, Jr., Dr. John D. Wang, Donna D. Rich, Dr. Eugene F. Corcoran, Dr. Earl Robert Rich and John Myers and offered Petitioner's Exhibits 1-11. All were received into evidence except Exhibits 3 and 11 which were conditionally received subject to further review by the undersigned. Also testifying in support of the application were Chester Closson, Dan G. Wood, Guy E. Morton, Rex Hopkins and Kenneth D. Johnson, all residents of the subdivision where the project is located. Respondent presented the testimony of Richard A. Lotspeich, George T. Baragona, Dr. Landon Ross and Pamela A. Sperling, and offered Respondent's Exhibits 1-5, each of which was received into evidence.
The transcript of hearing (two volumes) was filed on November 5, 1981.
Proposed findings of fact and conclusions of law were filed by the parties on December 7, 1981. Notices of supplemental authority were filed by Respondent and Petitioner on December 10 and 23, 1981, respectively. Proposed findings of fact have been considered by the undersigned in the preparation of this order. Findings of fact not included in this order were considered immaterial, not relevant to the issues, or were not supported by competent and substantial evidence. The parties have agreed to waive the requirement that a recommended order be entered within thirty days after the filing of the transcript of hearing.
The issue herein is whether Petitioner is entitled to the issuance of the requested permit/water quality certification to excavate four dead-end canals and to complete excavation of two partially constructed dead-end canals in Big Pine Key, Monroe County, Florida.
Based upon all of the evidence, the following findings of fact are determined:
FINDINGS OF FACT
Petitioner, Kyle Brothers Land Company, Inc., is a land development and sales firm with principal offices located in Coral Gables, Florida.
On November 12, 1980, Petitioner filed an application seeking the issuance of a permit/water quality certification by Respondent, Department of Environmental Regulation, to authorize the excavation of four canals 525' long x 2' wide each with sixteen 10' x 35' boat moorings and to complete excavation on three partially completed canals, all lying in Sections 4 and 5, Township 665, Range 29E, Big Pine Key, Monroe County, Florida. 2/ A copy of the permit application may be found as Petitioner's Exhibit 2.
Petitioner's application was received by the Department on November 25, 1980, and reviewed for compliance with applicable state water quality standards, conservation criteria in Chapters 253 and 403, and rules promulgated thereunder. Additional information requested by Respondent was furnished by Petitioner in early 1981. A field appraisal of the project site was submitted by the
Department staff on March 16, 1981. On April 8, 1981, the Department issued its intent to Deny the requested permit. A copy of the intent to Deny may be found as Petitioner's Exhibit 6. The Department based its intention to deny the permit on the grounds (a) applicant had not provided reasonable assurance that long-term impacts of the project would not result in violation of State Water Quality Standards for all surface waters and for Class III surface waters, and specifically including the following standards: biochemical oxygen demand, detergents, oils and greases, bacteriological quality, dissolved oxygen and nutrients, (b) applicant had not affirmatively shown the project would not interfere with the conservation of marine resources, and (c) applicant had not provided an affirmative showing of the public interest which would be served by the proposed dredging.
Petitioners disputed the allegations set forth in the intent to Deny and requested a formal hearing to contest the denial of its application. That request precipitated the instant hearing.
The proposed project is located within Port Pine Heights, a subdivision located on the northern end of Big Pine Key which lies approximately 25 miles east-northeast from the City of Key West. More than seven hundred lots have been sold within the subdivision since 1959 although only forty homes have been built to date. Of that total, approximately fifteen homes are located in the southern half of the subdivision where the proposed project is found. Two main canal systems have been constructed in the subdivision, each having an east-west channel that opens directly to Pine Key Channel to the west, and a number of closed-end finger canals extending to the north and south. The two east-west channels and the finger canals are artificially created bodies of water. The specific project site involves the southern canal system which is approximately six thousand feet long and fifty feet wide. It has fourteen finger canals extending from its northern side, including those to be unplugged and excavated, and twelve to the south. The finger canals are 525 feet long by 25 feet wide. The canals to be dredged lie on the landward end of the east-west channel and were constructed by blasting around 1960. A cease and desist order issued by the United States Army Corps of Engineers in 1973 halted completion of the canals at issue and they have remained either plugged or unexcavated since that time.
Petitioner wishes to undertake the proposed work so that it may complete the subdivision begun in 1959. Upon completion, the six canals will have ninety-six waterfront single-family residential homesites of which twenty have already been sold. Because many homesites have more than one lot, a saturation of the area with homes is unlikely. Additionally, the construction of homes within the subdivision has been extremely slow (only forty homes built in twenty years) and no substantial increase in that pace is expected even after the project is completed.
Under applicant's proposal the excavated canals will have depths of -4 feet mean low water (MLW) at the dead end increasing to -6 feet MLW at the connection of the existing fifty foot main canal, or an average depth of five feet. The existing canals are all deeper than the proposed canals. The excavation will be done in native oolite limerock and the spoil from the canal system will be used to grade the adjacent upland and form a rip-rap shoreline above the rock level. The entire area will be enclosed by turbidity screens until all work is completed.
The substrate at the location is Miami oolite, a type of limestone which is characterized by the presence of fissures and hollows. Even though some groundwater-to-canal water interchange will occur, stormwater runoff has had no deleterious effects on other areas of the canal system since residential development began in the subdivision some years ago. Additionally, oolite rock is typically filled with crevices and dead-ends which hold water or leachate and can aid in minimizing the groundwater-to-canal water interchange.
A modified tidal flushing analysis was performed by Dr. John D. Wang, Jr. on behalf of Petitioner in July, 1981. 3/ The analysis investigated the mixing and circulation (flushing) of tidal water in the existing canal system and determined the quantity of water exchange between Pine Channel and the existing canal system.
After the project is completed, the overall flushing characteristics and concomitant water quality in the proposed system will be significantly improved. These improved characteristics are primarily due to the new canals having a favorable ratio of MLW volume to tidal prism 4/. As such, there will be higher tidal velocities and more favorable mixing between the canals and the ocean. This is Particularly true for those canals that lie closest to Big Pine Channel. Because the overall flushing time will be reduced on almost all of the system, its ability to purge itself of unwanted constituents will also improve. The Department's concern that boat slips to be cut into the sides of the new canals will cause dead areas of water is not valid. The moorings will not affect flushing because the proposed canals are sufficiently shallow to insure good mixing.
Water quality tests within the existing canal system were made by Petitioner in 1980 and 1981 and by Respondent in 1981. The results of applicant's 1981 testing may be found as Petitioner's Exhibit 5, and include samplings of dissolved oxygen, temperature, oils and greases, detergents, total and fecal coliforms, biochemical demand (BOD), and nutrients. Respondent's testing included only dissolved oxygen and has been received as Respondent's Exhibit 5.
Water quality sampling reflected only one total coliform and no fecal coliforms in the most developed canal in the southern canal system. Readings in the older area of the subdivision adjacent to a septic tank disclosed an extremely low bacteria count. Given the rate of growth over the past twenty years, and the almost nonexistent presence of bacteria, the proposed canals should not cause a violation of the bacteriological criterion.
Measurements of dissolved oxygen (DO) in the existing canal system and offshore ambient waters were taken by both Petitioner and Respondent. Dissolved oxygen is the amount of oxygen in the water, usually measured in a liter of sea water, and is needed for respiration of animals and organisms in the water. Biochemical demand (BOD) was also measured in the existing canal system. This measures the amount of oxygen demanded by organics or organisms in the water to convert oxygen to dioxide and water. High BOD levels indicate high amounts of organic debris in the water. High BOD and a lack of dissolved oxygen would cause an anaerobic environment which would probably produce hydrogen sulfide.
State water quality standards require that the concentration of dissolved oxygen "shall never be less than 4 milligrams per liter" in predominately marine waters. Rule 17-3.121(14), Florida Administrative Code. Measurements in the open canal system taken by Petitioner in August, 1980, and by Respondent in September, 1981, reflected readings of less than 4 milligrams
per liter during the early morning hours. However, such readings are not unusual in natural settings such as Big Pine Key following a long period without light or photosynthesis. The values did not fall below the minimum standards in the canal system on samples taken after 10:00 a.m. Measurements taken in the ambient waters adjacent to the canal system reflected lower readings than those in the canal system. These values also increased during the later hours of the day. increased flushing in the proposed system and shallower depths will increase oxygen throughout the canals. Therefore, its construction cannot be expected to cause DO levels to drop below the present levels found in the canals and ambient waters. Indeed, the shallower canals will be strong producers of oxygen with a high degree of photosynthetic activity and will contribute oxygen to the rest of the canal system.
With the exception of one BOD reading of 1.02, all were less than one unit, and may be characterized as extremely low. These levels will not be increased as a result of the proposed activity to the extent that dissolved oxygen will be depressed below 4 milligrams per liter.
Oil and grease concentrations may not exceed 5 milligrams per liter under state standards. Readings taken by Petitioner in the canals and ambient waters were less than 0.01 milligrams at every station. Automobiles and boat traffic are generally the primary source of oils and greases. The Department's concern that subsequent development within the subdivision will substantially increase the input of oils and greases into the waters is speculative at best, particularly in view of the low rate of growth in the subdivision over the past twenty years, the extremely low readings in already developed areas, the fact that present concentrations would have to be multiplied 5,000 times to approach proscribed levels, and the back-sloping of lots by Petitioner to minimize stormwater runoff into the canals.
Detergents are barely measureable in the existing canal system and ambient waters. In order to exceed state standards, the present levels would have to be increased at least 500 times. Although the Department expects detergents to be added to the waters through stormwater runoff and septic tank leachate, this assertion is inconsistent with present readings taken at stations near homes with septic tanks.
In the context of this proceeding, nutrients may be defined as fertilizers or food for marine plants. An excess of nutrients in sea water can increase the level of biochemical demand which in turn decreases dissolved oxygen thereby causing eutrophication of the canal system. The nutrient levels of the present system are low. This was evidenced by Petitioner's measurements of ammonium, nitrates, inorganic phosphate and silicate. The low readings were present even in the older, more developed areas of the canal system. Respondent fears that development would hasten eutrophication in the canal system because bacteria and nutrients would be introduced through septic tanks and stormwater runoff. However, stormwater and septic tank leachate have had no adverse effects on the main canal system which has been in use since 1967. Indeed, continual monitoring of the system by Petitioner since 1974 reveals that the system is a thriving biological community in which nutrients are being utilized by animals at the rate the system produced them. No violation of applicable state standards is expected after the project is completed.
The present canal system has a rich and diverse natural population of flora and fauna. However, all areas are not uniform in their attributes or communities. The water within the system is clear. The biological communities are more extensive and diverse within the existing canal system than offshore.
Because the new canals will not exceed six feet in depth, they can be expected to develop quite extensive communities of plant life on their bottoms.
Colonization of algae on the sides of the canals should occur within a few weeks after the canals are opened. The optimum level of diversity of plants and animals should be reached within four years. The amount of photosynthetic activity on the walls and bottom of the new system due to its shallow depth will contribute oxygen to the other canals within the system. The new canals will make a significant contribution to the total marine ecosystem.
The method of sewage disposal utilized by homes that have been built at the subdivision is septic tanks. Septic tanks would likely be used by any new homes built in the area in the immediate future. Petitioner is willing to construct a central sewage treatment plant whenever development is sufficient to make a plant economically feasible. in Petitioner's judgment, at least thirty homes on or around the new canal system must be built before it is willing to undertake such a project.
The use of septic tank by the forty homes now built in the subdivision has not caused violations of any bacteriological quality standards to date. Moreover, testing of those same standards in another canal system on Big Pine Key by Respondent disclosed that septic tank leachate had not contravened those standards. (Respondent's Exhibit 1). The addition of thirty more homes in the subdivision over an extended period of time should not increase the amount of contaminants to a level that violates state water quality standards.
Petitioner commenced development of its subdivision at Port Pine Heights in 1959. The southern portion of the subdivision in which the proposed canal system is located was first platted in 1963. Five lots on the unfinished canals have been sold prior to April 3, 1970. Completion of the canals was a condition of the contracts for deed to those lots. Petitioner has unsuccessfully sought to obtain the necessary permits to complete the canal project in issue in 1974 and 1976.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.
The following procedural matters remain pending and require resolution before addressing the merits of the case.
Chapter 253 Jurisdiction
At issue is whether the proposed activity is within a navigable waterway and subject to the provisions of Subsection 253.123(1), Florida Statutes, and Rule 17-4.29(6), Florida Administrative Code. This issue matured when Petitioner filed a pleading styled "Motion for an Order that Respondent has no Jurisdiction Pursuant to Chapter 253 over the Proposed Project". By agreement of the parties, a ruling on the Motion was reserved until the entry of the Recommended Order, and the parties have conducted their evidentiary presentations as if the project was subject to DER's Chapter 253 jurisdiction.
Petitioner generally points out that its proposed activity involves the connection of six artificially-created inland canals to another artificially-created inland canal, which in turn is connected to Big Pine Channel, a navigable water. Because all excavation activity will occur in
artificial water, and Subsection 253.123(1), Florida Statutes, specifically excepts dredging activities in artificial waters from the Department's jurisdiction, it contends the project is exempt from DER's Chapter 253 jurisdiction. The Department asserts that the project is not entitled to the statutory exemption unless each of the following conditions are met: (1) the water bodies are artificially-created, (2) they are entirely upland, (3) they are entirely owned by one person, and (4) all work is to be conducted within the artificially-created water bodies. Respondent also relies upon Rule 17- 4.29(1)(b), Florida Administrative Code, which provides in part that ".....
dredging to connect artificial waterways or waterbodies to navigable waters. "
is subject to permitting requirements. Respondent contends the project meets this criterion and therefore the canal construction falls within the ambit of the rule.
Subsection 253.123(1), Florida Statutes, provides as follows:
No private person, firm or corporation shall construct islands or add to or extend existing lands or islands bordering on or being in the navigable waters of the state as defined in s. 253.12(1) by pumping sand, rock or earth from such
waters or by any other means without first complying with s. 253.122; provided, nothing herein contained shall relate to artificially created navigable waters. (Emphasis supplied)
Accordingly, DER dredge and fill jurisdiction under Chapter 253 is limited to the control of certain activities in navigable waters. An applicant subject to the provisions of Section 253.123 must meet those criteria contained in Subsection 253.123(2)(d) Florida Statutes, and codified in Rule 17-4.29(6), Florida Administrative Code. In summary form, they require that an applicant affirmatively demonstrate that (a) the proposed activity will not interfere with the conservation of fish, marine and wildlife, or other natural resources to such an extent as to be contrary to the public interest, (b) the proposed activity will not result in the destruction of oyster beds clam beds, or marine productivity, and (c) the proposed activity will not create a navigational hazard, or a serious impediment to navigation, or substantially alter or impede the natural flow of the navigable waters, so as to be contrary to the public interest. If Petitioner's claim is meritorious, it need not prove that the deleterious effects described above will not occur.
There is very little case law interpreting the term "artificially created navigable waters" within the context of Department jurisdiction. However, both parties have relied upon State Department of Environmental Regulation v. Oyster Bay Estates, Inc., 304 So.2d 891 (Fla. 1st DCA 1980) and Trustees of internal improvement Fund v. Sea-Air Estates, Inc., 327 So.2d 823 (Fla. 3rd DCA 1976) to support their respective positions, and these two cases appear to be the only pertinent decisional law on the subject. 5/
In Oyster Bay, the appellees-developers had received a permit in 1969 from the Trustees of the Internal Improvement Fund (Trustees) to construct a navigation channel in Apalachee Bay adjacent to appellees' upland property. Appellees also intended to construct two interior canals connecting with another canal that extended into the navigation channel. As a result of legislation enacted subsequent to 1969, and over appellees' objection, the Trustees required appellees to obtain additional permits to complete the project. While most of the litigated issues in the decision are immaterial to the issue at hand, the
appellees did contend that "the Trustees' issuance of the permit with knowledge of the proposed inland canal construction constituted approval not only of the navigation channel to be dredged in Apalachee Bay, but also the inland canals to be constructed on appellees' upland property." In rejecting this argument, the Court described the nature of the Department's jurisdiction over the inland canals as follows:
Chapter 253... contained no requirements pertaining to inland canals, and the Trustees had no authority to either approve or disapprove such canals. The trustees authority was limited, by law, to control over dredging and filling in navigable waters.
Under the applicable statutes ... no further permits were required for completion of navigational access to the interior canals to be located on appellees' property, and no state permits were needed for construction of the interior canals. We therefore find no basis upon which it can be concluded that action by the Board in approving the navigational channel (a matter within its jurisdiction), conferred rights upon appellees with respect to construction of inland canals upon appellees' upland property (over which the Board had no jurisdiction). Id. at 592-893 (Emphasis supplied)
The Department asserts that the canals at issue in Oyster Bay were entirely upland, and not connected to any navigable body of water. Thus, because they are unlike the canal structure in the case at bar, it argues the decision cannot support the Petitioner's claim. A reading of Oyster Bay reveals that the actual configuration of the canal system therein is somewhat sketchy. Indeed, the court itself acknowledged that "[m]any of the maps and plats in the file (were) almost illegible." (page 892, ln. 2). However, it is clear that appellees were attempting to connect "two 40-foot interior canals" to "a 60-foot canal extending into the navigation channel." (page 892) The latter body of water (the navigation channel) was a navigable water within the meaning of Chapter
253. When the Court stated that "[n]o further permits were required for completion of navigational access to the interior canals to be located upon appellees' property", (page 893) it was obviously referring to excavation work on the 60-foot canal on which a permit had presumably already been obtained. The Court went on to hold that excavation work on the two 40-foot canals was exempt from permitting requirements since "the Board had no jurisdiction" on appellees' upland property. Accordingly, even though the two 40-foot canals were to be connected to another waterbody (the 60-foot canal) providing access to the navigation channel in Apalachee Bay, the construction work on the inland canals was nevertheless exempt from DER's Chapter 253 jurisdiction. This is true even though Rule 17-4.29(1)(b), supra, provides that DER shall have jurisdiction over "dredging to connect artificial waterways or waterbodies to navigable waters 6/. In the case at bar, Petitioner intends to pull the plugs
to two existing dead end canals, excavate four other dead-end canals and connect the same to an existing upland canal system on its property. The latter canal then connects with Pine Island Channel, a waterbody that both parties agree is a navigable water. The canal structures in both Oyster Bay and the instant case appear to be identical, at least in terms of inland canals and their relationship to and connection with navigable waters. In both cases, the construction work is on inland canals connected to another waterway on private property which in turn connects to a navigable body of water. This being so, the Oyster Bay decision supports the theory advocated by Petitioner, and is
deemed to be controlling to the factual situation herein. 7/ Accordingly, it is concluded that (1) the excavation work in the case at bar will occur wholly within artificially-created navigable waters, (2) under the principle enunciated in Oyster Bay, the Department has no jurisdiction over the construction of inland canals (artificial waters) on Petitioner's upland property, even though they are connected to an access canal which runs into a navigable water, and (3) the project is exempt from Chapter 253 permitting requirements pursuant to the exception contained in Subsection 253.123(1), supra. In making this determination, it must be remembered that Petitioner is not relieved of all obligations to conform with environmental standards. Rather, it must still comport with the dredge and fill permitting requirements of Chapter 403, Florida Statutes, and applicable rules promulgated thereunder. Thus, the conclusion that Chapter 253 is not applicable under the factual circumstances herein merely exempts Petitioner from a small part of the many standards and regulations contained in the Department's regulatory arsenal to insure that the environment is protected.
Although both parties have relied upon the Sea-Air decision to support their respective positions, the undersigned concludes it is not dispositive of the issue at hand. In Sea-Air appellee-landowners had pulled the plugs on two artificially- created canals which lay on appellees' upland property and above the high water mark. The Trustees sought a mandatory injunction to compel appellees to replace fill material which they contended had been illegally excavated. In rejecting the Trustees claim for relief, the Court sustained the trial court's finding that the water-bodies involved were artificially created navigable waters within the meaning of Subsection 253.123(1), and were accordingly beyond the Trustees' regulatory jurisdiction The decision does not reveal whether the artificially created navigable waters at issue were, or in what manner, connected to navigable waters. While it is logical to assume that they were, for otherwise there would have been no purpose in the construction work, this essential factor was not disclosed and it is concluded the case neither favors or contradicts the respective positions of the parties.
B. The Outstanding Florida Water Issue
Respondent has contended the proposed activity is located within an Outstanding Florida Water (OFW), and therefore is subject to additional requirements on the part of applicant. (See Rule 17-4.242, Florida Administrative Code). Specifically, it is alleged that the project is located within National Key Deer and Great White Heron in Monroe County, both of which are defined to be Outstanding Florida Waters in Rule 17-3.041(4)(a), Florida Administrative Code. The issue first arose over Petitioner's objection when the parties prepared and executed a prehearing stipulation filed with the undersigned on September 21, 1981. The undersigned then ruled the OFW issue had not been timely raised. Further explanation as to that ruling is deemed appropriate.
A chronological recitation of the sequence of events which has occurred is necessary in order to place the matter in proper perspective. The application herein was dated November 12, 1980. On April 8, 1981, the Department issued its Intent to Deny which articulated its reasons for denying the application. 8/ Some five and one-half months later, and two weeks prior to the final hearing, the Department raised the OFW issue for the first time as a further basis for rejecting the application.
It is well-established that the constitutional guarantee of due process of law applies in administrative proceedings. Persons who appear before administrative agencies must be accorded procedural due process. This includes the right of a party to receive a timely notice advising him with reasonable certainty of the matters which he must defend, or objections he must overcome in resolving his dispute or claim with the agency. Here the agency identified with particularity its objections to granting the requested permit in April, 1981, after having reviewed the application for almost five months. Petitioner understandably relied upon that representation in good faith in preparing its case to counter and meet those objections. Some five months later, the Department belatedly and unexpectedly sought to add yet another objection to the granting of the permit. It did so without giving timely notice or seeking authority to amend its pleading, and without the consent of the opposing party. Cf. Rule 28-5.202, Florida Administrative Code. Moreover, Petitioner was not alerted to the OFW issue by other pleadings and documents previously filed in this cause. Hovnanian Fla., Inc. v. Division of Florida Land Sales, 401 So.2d 851, 855 (Fla. 1st DCA 1981). If the issues were expanded as Respondent sought to do, Petitioner would have been required to stand a more stringent test in supporting its claim. See Rule 17-4.242, supra. When substantive changes in the Department's objections to granting the permit are made in mid-proceeding, it ".... may well constitute a due process problem of notice to the (applicant)." Hopwood v. Department of Environmental Regulation, 402 So.2d 1296, 1299 (Fla. 1st DCA 1981). Admittedly, a postponement of the hearing could have been ordered, but the Petitioner is entitled to have its application heard and considered "with reasonable dispatch and with regard to (its) rights and privileges." Subsection 120.60(2), Florida Statutes. In an administrative context, due process requires that Petitioner be given reasonable opportunity to know the claims of Respondent and to meet them -- here due process was lacking and the attempt to enlarge the grounds for denying the permit was properly denied.
C. Intervention by Port Pine Heights Property Association
During the course of the hearing intervention was sought by the Port Pine Heights Property Association, an organization made up of many of the homeowners within the subdivision where the proposed activity will take place. The Association supports the position of applicant. Respondent objected to granting intervention, and a ruling on its right to intervene was reserved pending further argument by the parties. After further review, it is concluded that it should not be afforded party status, and its request to intervene denied. 9/
Rule 28-5.207, Florida Administrative Code, governs intervention in Section 120.57(1) proceedings and it provides as follows:
Persons other than the original parties to a pending proceeding who have a substantial interest in the proceeding, and who desire to become parties may petition the Presiding officer for leave to intervene. Petitions for leave to intervene must be filed at least five (5) days before the final hearing, and should be in con- formance with 28-5.201(2) and shall also include allegations sufficient to demonstrate that the intervenor is entitled to participate in the proceeding as a matter of constitutional or statutory right or pursuant to agency, rule, or
that the substantial interests of the intervenor are subject to determination or will be affected through the proceeding.
Here the Association did not file for leave to intervene in accordance with the time limitations prescribed by the Rule 10/ Further, the Association failed to show that its environmental interests were substantially affected by the agency question. 11/ Agrico Chemical Company v. Department of Environmental Regulation, So.2d (Fla. 1st DCA 1981 op. filed 10/7/81). This being so, its request to intervene should be denied.
Despite the denial of its request to intervene, the individual members who testified are entitled to be heard. Therefore, the testimony of the five property owners who appeared has been considered in this context, and appropriate weight accorded thereto. See Subsection 120.57(1)(b)4, Florida Statutes.
The Department has jurisdiction of the project herein pursuant to Subsection 403.087(1), Florida Statutes, which provides as follows:
No stationary installation which will reasonably be expected to be a source of air or water pollution shall be operated, maintained, constructed, expanded, or modified without an appropriate and currently
valid permit issued by the department, unless exempted by department rule.
Because a canal is a stationary installation which may reasonably be expected to be a source of water pollution, the proposed construction is subject to the provisions of the foregoing statute.
Applicants for dredge and fill permits must "affirmatively provide reasonable assurance to the department that the short-term and long-term effects of the activity will not result in violations of the water quality criteria, standards, requirements and provisions of Chapter 17-3, Florida Administrative Code." Rule 17-4.28(3), Florida Administrative Code.
The allocation of burden of proof in a dredge and fill permit proceeding has been enunciated by the First District Court of Appeals in Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Once the applicant has established a prima facie showing of entitlement to the requested permit, the Court held:
The "burden of proof" is upon the (Department) to go forward with evidence to prove the truth of the facts asserted in (its) petition. If the (Department) fails to prevent evidence, or fails
to carry the burden of proof as to the controverted facts asserted -- assuming that the applicant's preliminary showing before the hearing officer warrants a finding of "reasonable assurances" -- then the permit must be approved. Id. at 789.
The underlying basis for the Department's objections centers around the long-term effects of future development after the project is completed. The Department fears that a saturation of homes in the new canal area will occur, and cause the introduction of contaminants into the canal system which will
result in violations of the water quality standards. These concerns are speculative at best since housing construction to date has averaged only two homes per year over the last twenty, and the existing development has not affected the water quality to any degree.
Respondent also contends that once development occurs, septic tanks will be installed at each homesite and constitute a source of pollution. However, septic tank permitting is a function of the Department of Health and Rehabilitative Services under Chapter 381, Florida Statutes, and Chapter 10D-6, Florida Administrative Code, and as such, is not subject to the Department's permitting authority. Moreover, the stationary objects that give rise to the Department's Chapter 403 jurisdiction are the six canals to be unplugged and excavated; thus, the canals vis a vis septic tanks are the expected source of water pollution within the meaning of Subsection 403.087(1), supra. Even if the prospective septic tank installation can be properly considered, water quality sampling near septic tanks in the existing canal system and on other areas of Big Pine Key do not corroborate Respondent's fears.
The remaining principal objection relates to low dissolved oxygen readings found in the existing canal system and ambient offshore waters during the early morning hours. Admittedly, these measurements fell short of minimum state standards contained in Rule 17-3.121(14), Florida Administrative Code. However, these low readings were the result of a productive biological community and were not caused by pollution from the canals. Moreover, they improved to satisfactory levels during the later hours of the day. The evidence reveals that once the new canals are opened, improved flushing will occur thereby leading to an overall improvement in water quality.
Petitioner having affirmatively provided reasonable assurance that the short-term and long-term effects of the activity will not result in violations of the water quality criteria, standards, requirements and provisions of Chapter 17-3, Florida Administrative Code, and Respondent having failed to controvert this showing, the requested permit should be approved. J.W.C. Co., Inc., supra.
Because Petitioner is entitled to a dredge and fill permit under the more stringent test now used in evaluating this type of application, its request for special consideration under Rule 17-4.28(7), Florida Administrative Code, is rendered moot. Accordingly, Respondent's Motion for Partial Summary Judgment is denied and Petitioner's Exhibit 3 and 10 are hereby received into evidence.
Also remaining at issue is Petitioner's renewed Motion to Award Attorney's Fees. A similar Motion was denied by order dated August 7, 1981. Having considered the same, the prior ruling denying the Motion is reaffirmed and the Motion is hereby denied.
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Kyle Brothers Land Company, Inc. for a
permit/water quality certification to excavate four dead end canals and to complete excavation of two partially constructed dead end canals on Petitioner's subdivision in Big Pine Key, Monroe County, Florida, be GRANTED.
DONE and ENTERED this 20th day of January, 1982, in Tallahassee, Florida.
DONALD R. ALEXANDER
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1982.
ENDNOTES
1/ The original Petition was filed by George Kyle and the style of the case reflected him as being Petitioner. By agreement of the parties, the pleadings were amended to reflect Kyle Brothers Land Company, Inc. as the party Petitioner.
2/ Although the application sought to complete excavation on three partially completed canals, subsequent pleadings and testimony refer to only two and the latter number has been used by the undersigned.
3/ Flushing may be described as a relative measure of the ability of a system to purge itself of a given constituent.
4/ In simplest terms, tidal prism is the amount of water that enters and exits on every tidal cycle. Because new canals will be opened in the present system, the amount of water, or tidal prism, will necessarily increase.
5/ The parties agree, as does the undersigned, that a third appellate decision on the subject, Jefferson National Bank v. Metropolitan Dade County, 271 So.2d
207 (Fla. 3rd DCA 1972) is not on point and has no application to the factual situation herein.
6/ The Court's result is not inconsistent with the Department's Rule for it concluded that dredging on the 60-foot canal providing access from the inland canals to the navigable channel in Apalachee Bay was subject to DER permitting requirements. In contrast, however, there will be no excavation work on the access waterway between Petitioner's dead-end canals and Big Pine Channel.
7/ In reaching this conclusion, the undersigned has not ignored the request of Respondent's counsel that the precedential value of prior DER decisions be considered. However, research by the undersigned has failed to disclose any DER final orders that are controlling, or indeed even pertinent to the issue at hand, and counsel furnished no citations on this point.
8/ These reasons included: (1) a failure by applicant to provide reasonable assurance, pursuant to Rules 17-4.07 and 17-4.28, Florida Administrative Code, that long-term impacts of the project would not result in violations of certain State Water Quality Standards for all surface waters and for Class III surface waters, (2) that the project would interfere with the conservation of fish,
marine and wildlife, and (3) that the applicant had not provided an affirmative showing of the public interest to be served by the proposed dredging. (Petitioner's Exhibit 6).
9/ This is not to suggest that the Department cannot amend its proposed agency action (letter of intent to deny) once this preliminary step is taken for the 120.57(1) hearing is a de novo proceeding to formulate agency action.
Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Whenever such modification is sought on a timely basis and with adequate notice to the other parties, it should be permitted. However, in the proceeding at bar this was not the case. Hopwood, supra.
10/ The Association sought to intervene on the second day of the final hearing although presumably it had knowledge of the hearing for some time in advance.
11/ The testimony offered by representatives of the Association revealed it was not primarily concerned with the environmental effects of the activity but rather with the economic impact of the project on the subdivision. Its two principal reasons for supporting the application were (1) the expectation that further development in the area would occur after the project was completed, and
the elimination of an "eye-sore" in the area that now exists. Neither reason can be characterized as an environmental interest or consideration within the meaning of those terms.
COPIES FURNISHED:
Michael E. Egan, Esquire Jane Heerema, Esquire
O. Box 1386
Tallahassee, Florida 32302
Paul R. Ezatoff, Jr., Esquire 2600 Blair Stone Road Tallahassee, Florida 32301
Jerome V. Shipley, Esquire Route 1, Box 527-A
Big Pine Key, Florida 33043
================================================================= AGENCY FINAL ORDER
=================================================================
BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
KYLE BROTHERS LAND COMPANY, INC.,
Petitioner,
vs. DOAH Case No. 81-1240
OGC Case No. 81-0290
STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondent.
/
FINAL ORDER
On January 20, 1982, the Division of Administrative Hearings' hearing officer who conducted a Section 120.57(1) Florida Statutes, hearing in the above-styled cause submitted his Recommended order to the Department of Environmental Regulation ("Department"). A copy of the recommended order is attached as Exhibit A. Pursuant to Section 120.57(1)(b)8., Florida Statutes, and Florida Administrative Code Rule 17-1.68(1) the parties were allowed ten
days in which to submit written exceptions to the Recommended order. Respondent moved for an extension of time to file exceptions an , by order dated February 2, 1982, Respondent was granted an additional four days. Respondent then timely filed Exceptions to the Recommended order and a request for oral argument pursuant to Florida Administrative Code Rule 17-1.68(3). Request for Oral Argument is denied, oral argument being unnecessary to rule on the issues presented in their case. Petitioner filed a response to the Exceptions filed by Respondent. The Recommended Order thereafter came before me as head of the Department for final agency action in this matter.
RULING ON EXCEPTIONS
Exceptions to Findings of Fact
Respondent takes exception to the hearing officer's finding of fact that saturation of the Port Pine Height Subdivision with homes is unlikely and that no substantial increase over the present building pace is expected after the proposed canal excavation is completed. Respondent also requests that an additional finding of fact be made relating to dissolved oxygen. A review of the record indicates that competent and substantial evidence exists to support the hearing officer's findings in the matters and Respondent's exceptions must therefore be rejected.
Exceptions to Conclusions of Law Chapter 253 Jurisdiction
Respondent takes exception to the hearing officer's conclusion of law that the Department lacks Chapter 253, Florida Statutes, jurisdiction over Petitioner's proposed project. Based on the specific and unique facts of this case as found by the hearing officer. I must reject Respondent's exception and I conclude that no 253 jurisdiction exists with respect to Petitioner's proposed dredging activities. The hearing officer's rationale is not entirely accurate, however, and it must therefore also be rejected.
I reaffirm the Department's position that Chapter 253 jurisdiction exists for all dredging activities undertaken in navigable waters of the state, except where the waters are entirely artificially created and owned by the party undertaking the dredging activity. Jefferson National Bank v. Metropolitan Dade County, 271 So.2d 207 (Fla. 2nd DCA 1972); Trustees of the Internal Improvement Trust Fund v. Sea-Air Estates, Inc., 327 So.2d 823 (Fla. 3rd DCA 1976). The Department retains jurisdiction pursuant to Chapter 253 over all filling activities in navigable waters regardless of the artificial nature of the waters or their ownership. Jefferson National Bank, Supra. The Outstanding Florida Water (OFW) Issue
Respondent's exception to the hearing officer's conclusion that the OFW issue was not timely raised is well taken. Under the circumstances of this case, the hearing officer erred by refusing to address the OFW issue and thereby deprived me of the opportunity of having a complete record before me for the formulation of final agency action in this matter. Recognizing that Section 120.57(1), Florida Statutes, proceedings are de novo proceedings to formulate agency action, 1/ amendment of pleadings should be liberally granted absent a clear showing of prejudice to a party.
Although the OFW issue should have been considered in this proceeding, the resolution of that issue would not be dispositive of the case, and therefore Respondent's request for a remand to the hearing officer is rejected.
Reasonable Assurance
The hearing officer in this case expressly found that reasonable assurance had been given as to each water quality criterion which Respondent put at issue, and he expressly concluded that the short-term and long-term effects of Petitioner's activity will not result in violations of the water quality criteria of Florida Administrative Code Chapter 17-3.
Respondent argues that reasonable assurance cannot have been provided because levels of dissolved oxygen of less than 4 mg/l will be found in the proposed canals. The record is not clear on this point, however, and in view of the hearing officer's express findings concerning reasonable assurance and the possibility of water quality violations, Respondent's exception must be rejected. I should note that the conclusion that reasonable assurance has been provided in this case is supported by Petitioner's express agreement to provide a central sewage treatment plant when thirty of the ninety-six lots fronting the proposed canals are developed, to provide necessary collection lines to the homes, and to condition lot sales on purchase agreements to connect to the sewage treatment plant when it is operational. The hearing officer made a specific finding of fact regarding this agreement and Petitioner reaffirmed this agreement in its response to the Department's exceptions. Considering these
facts, I hold that Petitioner's satisfaction of the agreement was implicit in the hearing officer's conclusion that reasonable assurance had been provided.
Respondent also asserts that the hearing officer erred in limiting the scope of his inquiry into the long-term effects of the proposed project. Given the express findings and conclusions relating to long-term impacts noted above, Respondent's exception must be rejected. However, in the interest of clarifying the hearing officer's conclusions of law, I must reiterate the Department's position with respect to some of the issues raised in Respondent's exceptions.
The Department maintains that the evaluation of the long term impacts of a proposed project must be based upon conditions assumed to exist upon full development. Kyle Brothers Land Company, Inc. v. DER, DOAH Case No. 76-607 (Final Order entered January 20, 1977; Key Haven Associated Enterprises, Inc. v. DER, DOAH Case No. 76-946 (Final Order entered June 22, 1977); Sunset Acres Mobile Home Sales v. DER, DOAH Case No. 79-1247 (Final Order entered May 27, 1980). All impacts (both short and long term) which are directly or incidentally associated with an installation and which may resuit in pollution must be considered in determining whether reasonable assurance has been provided. Florida Administrative Code Rules 17-4.03, 17-4.07, and 17-4.28.
CONCLUSION AND LAW
Having considered the Recommended Order, including the Findings of Fact and Conclusions of Law, Respondent's Exceptions, and Petitioner's Response to Respondent's Exceptions, it is therefore:
ORDERED,
That the hearing officer's Findings of Fact are adopted in toto.
That the hearing officer's Conclusions of Law are adopted to the extent that they are not inconsistent with the Conclusions of Law of this Order.
That the hearing officer's Recommendation is adopted with the following conditions:
That Petitioner provide central sewage treatment to the ninety-six lots abutting the proposed canals when thirty of the ninety-six lots are developed with businesses or residences, subject to Department permitting requirements;
That Petitioner install all necessary sewer lines to provide sewer service to the lots, subject to Department permitting requirements; and
That each deed or agreement for deed for the lots abutting the proposed canals contain a restriction requiring connection to a central sewage treatment plant when one becomes operational.
The Department will issue the Permit within twenty days from the effective date of this Final Order.
DONE AND ENTERED this 5th day of March, 1982, in Tallahassee, Florida.
STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION
VICTORIA J. TSCHINKEL
Secretary
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Telephone: (904) 488-9730
ENDNOTE
1/ Department of Transportation v. J.W.C Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981)
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing Final Order has been furnished by United States Mail to Michael E. Egan, Esquire and Jane Heerema, Esquire, Roberts, Egan & Routa, P.A., Post Office Box 1386, Tallahassee, Florida 32302, this 8th day of March, 1982.
STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION
PAUL R. EZATOFF, JR.
Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Telephone: (904) 488-9730
| Issue Date | Proceedings |
|---|---|
| Nov. 01, 1991 | Final Order filed. |
| Jan. 20, 1982 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 05, 1982 | Agency Final Order | |
| Jan. 20, 1982 | Recommended Order | Permit to excavate four dead-end canals approved. |
