STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TOWN OF LONGBOAT KEY, )

)

Petitioner, )

and )

) MANATEE COUNTY SAVE OUR BAYS ) ASSOCIATION, INC., )

)

Intervenor, )

)

vs. ) CASE NO. 81-1445

)

360 NORTH CORPORATION and ) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondents. )

) LONGBOAT LEAGUE, INC., c/o )

Lt. Gen. James V. Edmundson, ) President, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1446

)

360 NORTH CORPORATION and ) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondents. )

) MANATEE COUNTY SAVE OUR BAYS ) ASSOCIATION, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 81-1447

)

360 NORTH CORPORATION and ) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-captioned case involving proposed action taken by the State of Florida, Department of Environmental Regulation, was held at Sarasota, Florida, on August 19, 1981, before G. Steven Pfeiffer, Hearing Officer.

APPEARANCES

For Department David M. Levin, Esquire of Environmental Assistant General Counsel Regulation: State of Florida

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32301

For Town of I. W. Whitesell, Jr., Esquire Longboat Key, Wood, Whitesell, Karp, Wellbaum, Florida: Miller & Seitl, P.A.

3100 South Tamiami Trail Sarasota, Florida 33579

For Manatee

County Save Our Thomas W. Reese, Esquire Bays Association, 123 Eighth Street North

Inc.: St. Petersburg, Florida 33701

For 360 North Patricia A. Petruff, Esquire Corporation: Dye, Cleary, Scott & Deitrich, P.A.

Post Office Box 9480 Bradenton, Florida 33506

STATEMENT OF THE CASE

1. On November 18, 1980, Respondent 360 North Corporation filed an application with Respondent State of Florida, Department of Environmental Regulation (hereinafter "DER"), for permission to conduct filling activities in waters of the State of Florida. Respondent 360 North Corporation proposed to fill .05 acres of wetlands to construct a residential building on its property.

   
   

2. On March 3, 1981, Respondent 360 North Corporation modified its permit application and submitted a report entitled "Proposal for Wetland Habitat Creation" with the DER.

   
   

3. On April 29, 1981, the DER gave notice of its intent to issue the requested permit to Respondent 360 North Corporation.

   
   

4. By letters dated May 11, 1981, Manatee County Save Our Bays Association, Inc. (hereinafter "Save Our Bays") and the Longboat League requested a hearing on this matter.

   
   

5. By letter dated May 13, 1981, the Town of Longboat Key, Florida, also requested a hearing on this matter.

6. On June 2, 1981, Respondent 360 North Corporation filed a motion to dismiss the petitions filed by Save Our Bays, the Longboat League and Town of Longboat Key.

   
   

7. By Order dated July 1, 1981, the Hearing Officer consolidated the requested hearings; denied the motion to dismiss the petition filed by the Town of Longboat Key; and dismissed the petitions filed by Longboat League and Save Our Bays, granting leave to amend the petitions by July 16, 1981.

   
   

8. On July 17, 1981, Save Our Bays filed an amended petition in this matter.

   
   

9. On July 23, 1981, Save Our Bays filed a Petition for Leave to Intervene.

   
   

10. By Order of August 5, 1981, the Hearing Officer granted Save Our Bays' petition for intervention.

    
    

11. The issue for the Hearing Officer's consideration is whether the fill permit application filed by 360 North Corporation with the DER should be issued or denied.

    
    

12. At the hearing, Respondent 360 North Corporation offered three witnesses and introduced several exhibits into evidence. At the conclusion of Respondent 360 North Corporation's case, the parties convened informally to discuss an amicable resolution of this dispute. A tentative agreement was reached wherein the Petitioners agreed to withdraw their opposition to the issuance of a permit.

FINDINGS OF FACT

1. Respondent 360 North Corporation is seeking a permit to fill .05 acre of land dominated by submerged and/or transitional plant species as defined by the DER. The purpose of this fill is to enable Respondent 360 North Corporation to construct a residential building on its property.

   
   

2. Respondent 360 North Corporation has proposed to create .15 acre of wetland habitat on its land in the vicinity of the proposed fill area to compensate for whatever detriment may ensue as a result of the .05 acre fill.

   
   

3. Respondent 360 North Corporation has produced evidence, uncontroverted at the hearing, that it is the record owner of the real property for which the permit is being sought and of the area in which the proposed mitigation is to be conducted.

   
   

4. Respondent 360 North Corporation established by testimony that there was no practical alternative by which the two proposed buildings could be located within the property without requiring significant modification to the buildings' structure or without the use of fill.

   
   

5. Credible expert testimony characterized the vegetation within the .05 acre fill area as dominated by black mangroves (Avicennia gerrninans) and white mangroves (Laguncularia racemosa), all of which are less than 2.5 feet in height.

6. The proposed fill activity is to be conducted in wetlands contiguous to Longboat Pass, Sarasota County, Florida, described by the DER as a Natural Class III Water Body.

   
   

7. Respondent 360 North Corporation's witness testified that the placement of .05 acre of fill as proposed will have no significant effect upon the water quality in Longboat Pass.

   
   

8. Respondent 360 North Corporation submitted a proposal for wetland habitat creation with its modified permit application. This proposal indicates the methodology by which the mangroves from the area to be filled will be transplanted to the mitigation area. It also indicates that the proposed fill will have a gradual slope and will be replanted with wetland herbaceous vegetation to prevent erosion. Testimony by 360 North Corporation's expert witness established that with proper planting and monitoring, the mitigation area would have an 80 percent chance of success barring any unforeseen acts of nature such as an extreme frost or hurricane. In addition, the expert testified that once established the mitigation area will create an environmentally superior habitat to that now existing in the area to be filled and would add to the stability of the shoreline at the north end of Longboat Key.

   
   

9. The expert for Respondent 360 North Corporation testified that transplantation should be done in the spring of the year, preferably in March. In addition, he recommended that the trees be removed with a tree spade and replanted on four-foot centers. Additional mangrove plants and seedlings from nursery stock should be planted in the understory on two-foot centers. It was also recommended that a monitoring program be initiated to ensure survival of the trees in the mitigation area. The trees should be monitored at weekly intervals for the first six weeks, decreasing to biweekly intervals for the remaining first year, then at semiannual intervals for two additional years.

   
   

10. The parties agreed to resolve this dispute if the requested permit was issued containing conditions requiring planting and restoration as outlined by Respondent 360 North Corporation's expert in his testimony at the hearing and in the proposal submitted to the DER with the modified permit application. Respondent 360 North Corporation agreed to revegetate with wetland vegetation the area disturbed by the use of scaffolding or other equipment employed during construction. Respondent 360 North Corporation additionally agreed to post a bond or other form of financial assurance in the amount of $10,000 with the DER to insure compliance with the conditions of the permit.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this hearing. Section 120.57(1), Florida Statutes.

    
    

12. Section 403.021(2), Florida Statutes, states:

    
    

    It is declared to be the public policy of this State to conserve the waters of the State and to protect, maintain, and improve the quality thereof for public water supplies, for the propagation of wildlife, fish and other aquatic life, and for domestic,

    agricultural, industrial, recreational,

    and other beneficial uses . . .

    
    

13. Section 403.061, Florida Statutes, states:

    
    

    The Department shall have the power and the duty to control and prohibit

    pollution of air and water in accordance with the law and rules and regulations adopted and promulgated by it, and for this purpose to:

    (14) Establish a permit system whereby

    a permit may be required for the operation, construction or expansion of any installation that may be a source of

    air or water pollution and provide for the issuance and revocation of such permit and for the posting of an appropriate bond to operate.

    
    

14. Section 17-4.07(1), Florida Administrative Code, states:

    
    

    A permit may be issued to the applicant upon such conditions as the

    Department may direct, only if the applicant affirmatively provides the Department with reasonable assurance based on plans, test results and other information, that the construction, expansion, modification, operation,

    or activity of the installation will not discharge, emit, or cause pollution in contravention of Department standards, rules or regulations.

    
    

15. Section 17-4.28(2), Florida Administrative Code, states:

    
    

    Pursuant to Sections 403.061, 403.087 or 403.088, F.S. those dredging or filling activities which are to be conducted in, or connected directly or via an excavated water body or series of excavated water bodies to, the following categories of waters of the State to their landward extent as

    defined in Section 17-4.02(17), F.A.C. require a permit from the Department prior to being undertaken:

    * * *

    (c) bays, bayous, sounds, estuaries, and natural tributaries thereto.

    
    

16. Section 17-4.02(17), Florida Administrative Code, defines the "landward extent of waters of the State" as "that portion of a surface water body indicated by the presence of one or a combination of the following as dominant species: . . . Black mangrove . . . White mangrove."

17. Since the dominant plant species on the project site are black mangroves (Avicennia germinans) and white mangroves (Laguncularia racemosa), the placement of fill proposed by Respondent 360 North Corporation is filling in waters of the State.

    
    

18. No competent, substantial evidence was offered at the hearing to support any contention that the proposed activity was to be conducted at or below the line of mean high water. Thus, the DER has jurisdiction over the instant filling under Chapter 403, Florida Statutes.

    
    

19. The DER processed that permit application of Respondent 360 North Corporation in compliance with the above-quoted provisions and found that the applicant had provided reasonable assurances that the project would not cause pollution in contravention of any of the DER rules or regulations including the water quality standards set forth in Chapter 17-3, Florida Administrative Code.

    
    

20. The contention of Petitioner Town of Longboat Key that the proposed project is in derogation of and violates the Town's comprehensive plan and zoning ordinance is not a factor authorized for consideration in this forum by the statutes and regulations quoted above. The interpretation of that plan and those ordinances is the function of the Town. The granting of a permit by the DER does not relieve the applicant from complying with the lawful regulations imposed by local governments.

    
    

21. From the foregoing, it is concluded that the granting of the permit to fill .05 acre of wetlands located landward of the mean high water line will not have any short or long-term effects on the water quality of Longboat Pass. It is further concluded that based upon the proposal for wetland habitat creation, Respondent 360 North Corporation has more than complied with the requirement that it give the DER reasonable assurances that the proposed activities will not result in pollution.

RECOMMENDED ORDER

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

RECOMMENDED:

That a permit be granted subject to the following conditions stipulated to by the parties:

1. The mitigation area shall be that area consisting of two parcels of land designated on Sheet 1 of 3 dated February 26, 1981, and submitted to the DER as a modification of Respondent 360 North Corporation's permit application.

   
   

2. The area to be revegetated shall be clearly delineated with the use of tape and signs to ensure that existing wetlands will be protected.

   
   

3. Australian pines located within the mitigation area shall be cut so that they do not fall into existing wetlands. These trees, including the roots, shall be disposed of off site. Tree removal operation shall begin at the south end of the mitigation site and shall continue northward. Tree removal permits shall be obtained from the Town of Longboat Key, if required.

4. Subsequent to the removal of the Australian pines, the mitigation area shall be graded to approximately two feet or other appropriate grade to ensure the survival of the transplanted vegetation.

   
   

5. Mangroves shall be transplanted from the existing wetlands to the mitigation area. Mangroves shall be removed with a tree spade. The area from which the vegetation is to be removed shall also be clearly marked with an encircling ribbon.

   
   

6. The transplanted mangroves shall be placed on approximate four-foot centers in staggered rows. Additional plantings with nursery-raised mangrove saplings (approximately one and one-half years old) shall be planted in the understory on two-foot centers. Spartina patens shall be used to fill the understory where necessary.

   
   

7. A qualified biologist acceptable to all parties shall be present at the site during the excavation and planting of the new wetland area. This will ensure that proper elevations are established and that the plants are relocated properly.

   
   

8. The following monitoring program shall be established, supervised and maintained by a qualified biologist acceptable to all parties:

   
   

   1. Monitoring will be done weekly for the first six weeks.

   2. Thereafter, monitoring will be done biweekly for the remainder of the first year.

   3. Thereafter, monitoring will be conducted biannually for an additional two years.

      
      

9. Monitoring reports shall be submitted to the DER within 10 days of the monitoring. The results of the monitoring program shall be forwarded to each of the parties at the same time said results are forwarded to the DER.

   
   

10. A bond or other form of financial assurance in the amount of $10,000 shall be posted with the DER to insure compliance with the conditions of the permit. The bond and/or other evidence of financial assurance shall provide that if at the end of the three-year monitoring period, the success rate of the transplanted mangroves and planted nursery stock mangroves is less than 80 percent, Respondent 360 North Corporation will replant that amount necessary to obtain 80 percent ground cover. In the event of failure to replant, the bond or other evidence of financial assurance shall be forfeited to the Department of Environmental Regulation to the extent necessary to comply with this condition.

    
    

11. The 360 North Corporation shall plant wetland species at the base of the retaining wall and sloping berm adjacent to the proposed residential building. These plants shall assist in stabilizing the soils in this area. Plants which shall be used will include Spartina patens and white and black mangrove seedlings.

    
    

12. Construction of the building requiring the fill shall be done in such a manner and to minimize the damage to the adjoining mangrove system (i.e., to the extent possible, scaffolding shall be placed around existing mangroves).

The 360 North Corporation shall revegetate with wetland vegetation the area disturbed by the use of scaffolding or other equipment employed in construction.

RECOMMENDED this 12th day of November, 1981, in Tallahassee, Florida.

G. STEVEN PFEIFFER Assistant Director

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 12th day of November, 1981.

COPIES FURNISHED:

I. W. Whitesell, Jr. , Esquire Wood, Whitesell, Karp, Wellbaum,

Miller & Seitl, P.A. 3100 South Tamiami Trail Sarasota, Florida 33579

Longboat League, Inc.

c/o Lt. Gen. James V. Edmundson, President

Post Office Box 382

Longboat Key, Florida 33548

Ronald L. Collier, Esquire

200 South Washington Boulevard Sarasota, Florida 33577

Thomas W. Reese, Esquire

123 Eighth Street North

St. Petersburg, Florida 33701

Patricia A. Petruff, Esquire

Dye, Cleary, Scott & Deitrich, P.A. Post Office Box 9480

Bradenton, Florida 33506

David M. Levin, Esquire Assistant General Counsel Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Ms. Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 81-001445

Orders for Case No: 81-001445