vs. ) CASE NO. 82-3542
) PORPOISE POINT PARTNERSHIP AND ) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )
Respondent. )
Pursuant to notice, a formal hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing was conducted on March 30, 1983, in St. Augustine, Florida. The Recommended Order is being entered following the receipt and review of proposed findings of facts and conclusions of law submitted by the State of Florida, Department of Environmental Regulation. To the extent that those proposals are consistent with the Recommended Order, they have been utilized. To the extent that the proposals are not consistent with the Recommended Order, they are rejected.
For Petitioner: George W. Kent, Jr., Esquire
For Respondents: John D. Bailey, Jr., Esquire
St. Augustine, Florida 32084
For Respondent, Richard P. Lee, Esquire
This case concerns the application by Porpoise Point Partnership, hereinafter referred to as the Partnership, to be granted environmental permits from the State of Florida, Department of Environmental Regulation, allowing 1) the placement of approximately 530 yards of fill for the construction of a road with drainage swales and 2) the filling of approximately 10,000 square feet of transitional upper marsh vegetation as defined in Rule 17-4.02(17), Florida Administrative Code, with the concomitant creation of a wetland area of
approximately 56,000 square feet vegetated with low marsh submerged species as defined in Rule 17-4.02(17), Florida Administrative Code. Petitioners who reside in the vicinity of the contemplated project are opposed to the grant of the permit and this opposition occasioned the present Subsection 120.57(1), Florida Statutes, hearing.
On August 12, 1982, the partnership made application for a fill permit to fill approximately .67 acres and to create approximately .45 acres of wetlands in St. Johns County, Florida. A copy of this permit application may be found as DER Exhibit No. 1 admitted into evidence. At the same time, the partnership requested permission from Department of Environmental Regulation to construct a roadway associated with the residential project mentioned in permit application Number 1. This road construction contemplated filling approximately
.06 acres associated with a 20 foot roadway with swale drainage in an area the applicant identified as a transitional wetland. A copy of the second permit application may be found as DER Exhibit No. 2 admitted into evidence. Those permit applications were received by DER on August 18, 1982.
The applications for permit were reviewed by the Northeast District Office, State of Florida, Department of Environmental Regulation. Tim Deuerling, a member of that district staff, was the individual primarily responsible for the permit review. His position with the staff is that of Environmental Specialist and his duties include dredge and fill permit review. In the course of the hearing, Deuerling was qualified as an expert in the evaluation of dredge and fill projects on the subject of water quality impacts associated with the activity. The permit applications have been considered separately based upon several on-site inspections made by Deuerling. Having concluded the inspections, Deuerling made a written permit application appraisal for each permit request. These activities took into account the biophysical features of the project area, with emphasis on the possible impact of the project related to ecology of the water body. DER Exhibit No. 17 admitted into evidence, is a copy of the appraisal report related to the dredge and fill activities in the wetlands of approximately .67 acres fill and the creation of
.45 acres marsh. DER Exhibit No. 18 admitted into evidence, is a copy of the permit application appraisal by Deuerling related to the fill activities associated with the construction of the road. In summary, these appraisals recommended the denial of the permit applications, based upon the concern that the projects would damage the existing biological resources and have the effect of degradation of the local water quality.
In the face of the Department's initial statement of intent to deny the permit, revisions were made to the permit applications. In particular, the revisions contemplated the filling of approximately 10,000 square feet of transitional zone vegetation, as defined in Rule 17-4.02(17), Florida Administrative Code, while creating approximately 56,000 square feet of marshland vegetated with low marsh submerged species. The newly created marsh area would be protected by a coquina rock revetment.
The destruction of the transitional vegetation in the project is not a violation of Department of Environmental Regulation regulatory standards, per se. Moreover, the substituted submerged vegetation which is sought is of a higher quality in performing the function of enhancing water quality, when contrasted with the transitional-type vegetation.
DER Exhibit No. 5 admitted into evidence is a diagram which points out the associated fill in the revised permit application, with the fill areas over which the Department of Environmental Regulation has jurisdiction being delineated in red. The green line depicts the demarcation of the landward extent of the Department's permitting jurisdiction. DER Exhibits 6, 7, and 8, copies of which have been admitted into evidence, are information and synopsis of meetings related to the revisions.
In commenting on the topic of an on-site meeting, which was conducted on November 19, 1982, an official with the United States Corps of Engineers expressed concern that the mitigation plan for protecting the environment should require a minimum of one-to-one marsh creation for marsh destroyed. The project, as contemplated, allows for roughly five times the area to be created in contrast to area destroyed. A copy of the letter from the employee of the United States Army Corps of Engineers may be found as DER Exhibit No. 9 admitted into evidence.
Comments from other regulatory agencies were received by the Department of Environmental Regulation. These comments were from the United States Environmental Protection Agency; State of Florida, Department of Natural Resources; United States Fish and Wildlife Service; and the Building and Zoning Department, St. Johns County, Florida. Copies of these comment letters were received as DER Exhibit Nos. 10, 11, 12, and 13 respectively. The concerns expressed by the United States Environmental Protection Agency and United States Fish and Wildlife Service have been addressed in the subsequent conditions set forth in the Notice of Intent to Issue Permits by Department of Environmental Regulation. That comment in DER Exhibit No. 13 made by officials with the Building and Zoning Department of St. Johns County on the subject of their reluctance to accept the fact that there is a trade off of wetlands for wetlands as opposed to the substitution of uplands for wetlands to-be filled, is satisfactorily addressed in the revised proposal. The uplands that are being graded will become a marsh area and will not remain uplands.
Comments in opposition to the project were received from members of the public. Copies of these letters in opposition may be found as DER Exhibits Nos. 14, 15, and 16. Those items respectively are from John W. Morris, Esquire, DER Exhibit No. 14; Elouise Kora and Yolande Truett, DER Exhibit No. 15; and Rod and Jacqueline Landt, DER Exhibt No. 16.
Having reviewed the original project, the revisions to the permit applications, and the comments by various private individuals and public agencies, the Department of Environmental Regulation noticed all interested parties of the Department's intent to issue permits for the benefit of the Partnership. Copies of those notices may be found as DER Exhibit Nos. 19 and 20 pertaining to the substituted marshland permit and road permit respectively. Those letters of intent establish the particular conditions that the Department would impose on the grant of the permit. In the instance of the substituted wetlands area, it would include turbidity controls during the placement of the fill, the stabilization of fill to prevent erosion into state waters, the placement of coquina rip-rap along open waters of the Tolomato River prior to the excavation of upland areas to the intertidal elevation that is referred to as one of the other conditions, the excavation of the project area to allow the growth of Spartina alterniflora to be planted on three foot centers, and the assurance that the new wetlands vegetation shall have a 70 percent survival rate following planting as measured at the conclusion of the first year or that replanting of that species shall occur until a 70 percent survival rate is achieved. DER Exhibit No. 20 related to the construction of the roadway sets
forth conditions related to the fact that the road should be constructed at a time when the area is not inundated with water, turbidity control at the time of construction, and the stabilization of the road and swales to prevent erosion leading to the introduction of materials into the waters of the state. Each Notice of Intent to Grant also sets out opportunity for parties in opposition to request a hearing to consider the propriety of the grant of permit. At the time that the Notices of Intent were sent, permits were also drafted pertaining to the marsh area and roadway. Copies of those permits may be found as DER Exhibit Nos. 21 and 22 respectively. Those permits are considered to be proposed agency action, pending the outcome of the hearing conducted March 30, 1982, to address the question of the grant of permits. The permits contain the conditions above.
A protest was received leading to the current hearing, following the Department's request for the assignment of a Hearing Officer and such assignment.
In addition to the review of the project made by Deuerling, Jeremy Tyler, an employee in the Northeast Florida District, Department of Environmental Regulation, considered the original project and its revisions. Tyler was accepted as an expert in the assessment of impact of dredge and fill projects on water quality. In view of the revisions to the project, and keeping in mind that the work to be done pursuant to the revisions would be landward of the line of mean high water, Tyler correctly asserts that standards or criteria related to water quality in the State of Florida will not be violated by project activities, i.e., reasonable assurances have been given by the applicant. This pertains to standards established pursuant to Chapter 403, Florida Statutes, as carried forward in Chapter 17, Florida Administrative Code.
Based upon the revisions, Deuerling correctly concurred in Tyler's impression that water quality standards or criteria would not be violated, i.e., that reasonable assurances had been given by the applicant. Deuerling was particularly impressed with the design of the revised project, the stormwater control methods to be implemented at the project site, and the decrease in the amount of filling to be done within areas of. the Department' s jurisdiction.
The jurisdictional boundaries are determined by reference to transitional vegetation which is dominant, specifically, the first fifty feet of that area.
Steve Beamon, marine biologist and consultant hired by the Partnership to plant the marine vegetation in the new marsh area, is convincing when he, by expertise, vouches for the reliability of the 70 percent survival rate for that vegetation. In fact, his experience has been that 97 percent of the vegetation planted survives. Here, the survival rate is premised upon the placement of the rip-rap coquina rock to protect that vegetation. The Department of Environmental Regulation, through Jeremy Tyler, concurs in the necessity for the placement of the revetment.
The Partnership had applied for a permit for stormwater discharge. See DER Exhibit No. 3 admitted into evidence, a copy of that application. The Department, in responding to that application, a copy of which response may be found as DER Exhibit No. 4 admitted, declined jurisdiction in the face of a purported exemption available to the Partnership. This action, on the part of the agency, is premised upon its reading of Rule 17-25.03(2)(c), Florida Administrative Code.
Petitioner did not present expert testimony to refute the evidence related to reasonable assurances of compliance with applicable standards of the Florida Statutes and associated rules within the Florida Administrative Code. Their concerns pertain to the removal of beach area that would occur in association with the project build-out, especially as it relates to the placement of the coquina rock, which would make the beach area available only at low tide. The witness, Elouise Kora, also established that sand which has been placed in anticipation of the possible permitting of the project has washed into the current marsh areas Other witnesses for Petitioner identified the effects of placement of fill in certain areas as covering food sources for fish and denying opportunity to fish from the shoreline. At present, flounder, drum, whiting, bluefish, and catfish are caught in the area of the project site. Swimming and wading are done in the area of the project site and would be inhibited if the project were granted.
Harry Waldron, a member of the St. Johns County Commission, expressed concern that access to the beach area would be denied by the contemplated project. He also indicated that the placement of revetment material was not before the County Commission when it-considered the propriety of this project from the point of view of local government. In Waldron's opinion, although the public can get to beach areas in that basic location, other than the project site, the build-out would cause the loss of a "prime fishing hole", which is not in the public interest, according to Waldron.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. See Subsection 120.57(1), Florida Statutes.
Respondent, porpoise Point partnership, has moved to dismiss this action based upon the lack of standing and a failure in pleadings. That motion was entertained at the commencement of the final hearing and the motion denied.
The Office of the Secretary, State of Florida, Department of Environmental Regulation, in the person of Respondent Department's counsel, received certain ex parte communication from Elouise Koran That material was transmitted to the Hearing Officer and at the same time, pursuant to Section 120.66, Florida Statutes, other parties were made aware of the ex parte communication. As Attorney Lee has identified, the outcome of this hearing shall be based upon the Recommended Order of the undersigned and the record established. in the course of the final hearing. No permission was granted any party or participant in that hearing to offer information outside the record, therefore, no consideration is given the letter and material provided by Ms. Kora. That information is being transmitted with the Recommended Order for the integrity of the record.
The Department of Environmental Regulation declined jurisdiction when reviewing the application of Porpoise Point Partnership to be granted a stormwater discharge permit pursuant to Rule 17-25.03(2), Florida Administrative Code. This decision was premised upon the Department's belief that an exemption from permitting was available to the applicant. It is concluded as a matter of law that the applicant is entitled to an exemption from stormwater discharge permitting requirements, in keeping with Rule 17-25.03(2), Florida Administrative Code.
Per Chapter 403, Florida Statutes, the State of Florida, Department of Environmental Regulation, must consider the question of Porpoise Point Partnership's request to be granted the subject permits. The applicant must also comply with requisite terms and conditions of Chapter 17, Florida Administrative Code.
Specifically, Rule 17-4 ;03, Florida Administrative Code, provides:
Any stationary installation which will reasonably be expected to be a source of pollution shall not be operated, maintained, constructed,
expanded or modified without an appropriate and currently valid permit issued
by the Department, unless the
source is exempted by Department rule.
This project is constituted of a stationary installation, as envisioned by the aforementioned rule, and is not exempt from permitting.
Section 17-4.28(2), Florida Administrative Code, in pertinent part states:
Those dredging and/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 water of the state to their landward extent as defined by Section 17-4.02(17), F.A.C. require a permit
from the department prior to being undertaken:
Rivers and natural tributaries thereto. . .
* * *
(c) Bays, bayous, sounds, estuaries, and natural tributaries thereto.
These statements establish the parameters of Department jurisdiction and would encompass the necessity of obtaining the permits in question before proceeding to dredge and fill to the extent identified in the revised application. The landward extent of water of the state, as provided in Rule 17-4.02(17), Florida Administrative Code, means:
Landward extent of waters of the State is, pursuant to Section 403.817, F.S., that portion of a surface water body indicated by the presence of one or a com- bination of the following as the dominant species. . . .
or that portion of a surface water body up to the waterward first fifty (50) feet or the waterward quarter (1/4) of the entire area whichever is greater, where one
or a combination of the following (transitional marine species) are
the dominant species. . . . (Emphasis Added)
Related to the project in question, the Department's jurisdictional boundaries are set out in DER Exhibit 5.
At Rule 17-4.07, Florida Administrative Code, it is stated:
A permit may he 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, modifications, operation or activity of the installation will not discharge, emit or cause pollution in contravention of Department standards,
rules or regulations.
Reasonable assurances have been given that the projects contemplated by the two permit applications, as revised, will not discharge, emit or cause pollution in contravention of the Department's standards, rules or regulations.
Rule 17-4.28(3), Florida Administrative Code, states:
The applicant for a dredge and/or
fill permit or a federal certification for a dredging and/or filling activity shall affirmatively provide reasonable assurance to the Department that the short-term and long-term affects of the activity will
not result in violations of the water quality crtieria, standards, requirements and provisions of Chapter 17-3, Florida Administrative Code.
Again, this applicant for dredge and fill permits has affirmatively provided reasonable assurance that the short-term and long-term affects of the activity will not result in violations of the water quality criteria, standards, requirements and provisions of Chapter 17-3, Florida Administrative Code.
Having given the necessary reasonable assurances to entitle the grant of the two permits, the Department is entitled to establish permit conditions, per Rule 17-4.07, Florida Administrative Code. Those conditions, as set forth in the Notice of Intent to Issue the two permits in question and the proposed agency actions, which are constituted of the permits themselves, are in keeping with this provision.
In summary, the necessary reasonable assurances have been given to allow the grant of the two permits at issue. Upon consideration of the facts found, and conclusions of law reached, it is,
That a Final Order be entered issuing the proposed permits as set forth in DER Exhibit Nos. 21 and 22.
DONE and ENTERED this 12th of May, 1983, in Tallahassee, Florida.
CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 1983.
Richard P. Lee, Esquire Department of Environmental
John D. Bailey, Jr., Esquire
St. Augustine, Florida 32084
George W. Kent, Jr., Esquire 1543 Kingsley Avenue
Ms. Victoria Tschinkel Secretary
John W. Morris, Esquire
St. Augustine, Florida 32084
