Judges: WILLIAM E. WILLIAMS
Agency: Department of Environmental Protection
Latest Update: Jul. 26, 1984
Summary: Petitioner has failed tp demonstrate worthiness of receiving a variance from Department of Regulation (DER) for construction of a dock on the Indian River.
83-0823.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
GAR-CON DEVELOPMENT, INC., )
)
Petitioner, )
)
vs. ) CASES NOS. 83-0823
) 83-2644
STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on October 31, 1983, in Cocoa, Florida.
APPEARANCES
For Petitioner: Robert A. Routa, Esquire
217 South Adams Street Tallahassee, Florida 32301
For Respondent: Dennis R. Erdley, Esquire
Assistant General Counsel
Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32301
These consolidated causes involve the application of Petitioner, Gar-Con Development, Inc. ("Petitioner") to the Department of Environmental Regulation ("DER") for a Permit to construct three wooden docks and retain an existing wooden dock, and to obtain a variance from permitting requirements. Final hearing in this cause was scheduled for October 31, 1983, by Notice of Hearing dated August 30, 1983.
At the final hearing, Petitioner called Maxine Garver, James Russell, M. R. Simpers, C. W. Sheffield, James Coleman, Ronald Hencin, and Mark Latch, its witnesses. Petitioner offered Petitioner's Exhibits 1 through 24, which were received into evidence. DER called Reese Kessler, Barbara Bess, David Heil, Leslie Williams, and Helen Setchfield, as its witnesses. DER offered DER Exhibits 1 through 6, 9 and 10, which were received into evidence.
Both Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings are not included in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues involved in this cause, or as not having been supported by evidence of record.
FINDINGS OF FACT
Petitioner is the owner and developer of real property in Brevard County, Florida. On February 17, 1982, Petitioner filed with DER an application for a permit to construct three docks in the Indian River adjacent to its property. Subsequently, Petitioner withdrew its three-dock application and re- filed its application seeking approval for one dock pursuant to the exemption requirements contained in Rule 17-4.04(9)(c), Florida Administrative Code. The permit for the exempt dock was received by Petitioner on October 1, 1982.
Petitioner then filed an application to construct three new docks, while retaining the exempt dock, by application dated November 4, 1982. DER issued an intent to deny this permit application.
The three docks which Petitioner proposes to construct are designed to provide a total of 58 mooring slips. The docks are proposed to be constructed in the Indian River adjacent to Petitioner's upland development which is designed to contain 214 units at build-out. Construction of the three docks will involve expenditure of approximately 845,000, and provide approximately five jobs.
At the site of the proposed dock construction, the Indian River is navigable, and is classified as a Class II water body. The area of the Indian River in which the proposed docks are to be constructed has been conditionally approved for shellfish harvesting by the Department of Natural Resources. Sampling conducted by both Petitioner and DER confirm the presence of edible clams on the project site and in adjacent areas. Clams are filter feeders which ingest water and entrap suspended particles which are utilized as food. Any contaminants contained in water ingested by clams are concentrated inside the clam until naturally purged. Human consumption of contaminated clams poses a public health hazard.
Petitioner proposes to construct the docks by driving pilings into the river bottom with an air-driven hammer. As the air hammer drives the piling into the soil, it displaces the soil beneath the pilings, and densifies it into the shear zone on both sides of the pile. The piles are supposed to be driven approximately four to five feet into the river bottom.
The construction and operation of the marina is not expected to diminish the amount of benthic activity in the project area. The habitat provided by pilings is expected to more than offset the loss of the area displaced by their installation.
However, the potential for contamination of shellfish in the project area by fecal coliform bacteria and other pollutants will be significantly increased. Although the number of shellfish might not be severely impacted, their fitness for human consumption by virtue of ingestion of pollutants associated with operation of the facility is expected.
In order to attempt to offset this expected impact, Petitioner has proposed several restrictions on persons utilizing the docking facilities.
Among these are prohibiting detergents for washing boats; prohibiting dockside fueling facilities; prohibiting discharge of bilge water from inboard craft into the river; prohibiting the use of toilet facilities onboard water craft; and requiring boats and equipment to be maintained in good order. Petitioner proposes to have on-site personnel or a subsequently formed condominium association to enforce these requirements; however, no specific workable
mechanism for enforcing these procedures was established of record by Petitioner.
Petitioner submitted testimony concerning water quality sampling performed in the project area and in areas adjacent to the proposed site. However, no analysis was conducted over and extended period of time to show existing water quality, or to give any credible comparison between the proposed site and other nonresidential marinas in the area. Further, Petitioner conducted no analysis of bottom sediments in the proposed project area in order to determine the type and extent of any pollutants existing on-site which could be expected to be re-suspended in the water column as a result of intense marine activity. These omissions are significant in view of the fact that the waters of the Indian River in this area have been approved for shellfish harvesting.
There are several existing marinas and boat ramps within close proximity to the Petitioner's development. Consequently, both the general public and residents at the development have ample access to the waters of Indian River and its surroundings. Petitioner has made no showing of any hardship which would justify the granting of a variance from DER permitting requirements.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes.
Section 403.087(1), Florida Statutes, provides that:
No stationary installation which will reasonably he expected to be a source of air or water pollution shall be . . . constructed without an appropriate and currently
valid permit issued by the department, unless exempted by department rule . . . .
"Dredging" is defined in Rule 17-4.02(12) , Florida Administrative Code, as ". . . the excavation, by any means, in waters )of the state. "
It is specifically concluded that the driving of pilings proposed by Petitioner for the construction of the proposed docks constitutes "dredging" within the meaning of the above-quoted rule.
Rule 17-4.28(3), Florida Administrative Code, provides, in part, that:
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 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. . . .
Evidence of record in this cause establishes that the construction of the docks proposed by Petitioner will significantly increase the potential for violations of applicable water quality standards, and evidence adduced by
Petitioner in support of its permit application has failed to establish the requisite "reasonable assurance that these water quality criteria will not be violated.
The rule of the Department of Environmental Regulation from which Petitioner seeks a variance in this case is Rule 17- 4.28(8)(a), Florida Administrative Code, which provides that:
(8)(a) The Department recognizes the special value and importance of Class II waters to Florida's economy as existing or potential sites of commercial and recreational shellfish harvesting and as a nursery area for fish and shellfish.
Therefore, it shall be the Department's policy to deny applications for permits and/or certifications for dredging and/or filling activities in Class II waters, except where the applicant has submitted a plan of procedure which will adequately protect the project area and areas in the vicinity of the project from significant damage. The Department shall not insue [sic] a permit for dredging and/or filling directly in areas approved for shellfish harvesting by the Department of Health and Rehabilitative Services. Provided, however, that the staff of the Department may issue permits and/or certifications for maintenance dredging of existing navigational channels for the construction of coastal protection structures and for the installation of transmission and distribution lines for carrying potable water, electricity or communication cables
in rights-of-way previously used for such lines.
Section 403.201(1), Florida Statutes, provides as follows:
Upon application the department in its discretion may grant a variance from the provisions of this act or the rules and regulations adopted pursuant hereto. Variances and renewals thereof may be granted for any one of the following reasons:
There is no practicable means known or available for the adequate control of the pollution involved.
Compliance with the particular requirement or requirements from which a variance is sought will necessitate the taking of measures which, because of their extent or cost, must be spread over a considerable period of time. A variance granted for this reason shall prescribe a timetable for the taking of the measures required.
To relieve or prevent hardship of a
kind other than those provided for in paragraphs (a) and (b). Variances and renewals thereof granted under authority of this paragraph shall each be limited to a period of 24 months except that variances granted pursuant to part II may extend for the life of the permit or certification.
Rule 17-1.57, Florida Administrative Code, which controls petitions and applications for variances or exemptions provides that:
A petition for a variance, pursuant to Section 403.201, Florida Statutes, of the Florida Air and Water Pollution Control Act, shall he in accordance with these rules.
Upon reviewing a petition within a reasonable time, the Department shall, after due notice, schedule a public hearing and shall address at least the following factors which also shall be addressed specifically by the petitioner at the hearing:
The act, rule, or regulation and sections thereof from which a variance is sought.
The facts which show that a variance should be granted because of one of the following reasons as set forth in Section 403.201, Florida Statutes.
There is no practicable means known or available for the adequate control of the pollution involved.
Compliance with the particular requirement or requirements from which a variance is sought will necessitate the taking of measures which, because of their extent or cost, must be spread over a considerable period of time. A variance granted for this reason shall prescribe a timetable for the taking of the measures required.
To relieve or prevent hardship of a kind other than those provided for in paragraphs 1 and 2 above. Variances and renewals thereof granted under authority of this paragraph shall be limited to a period of twenty-four (24) months.
The period of time for which the variance is sought, including the reasons and facts in support thereof.
The damage or harm resulting or which may result to applicant fro compliance with such rule or regulations.
The requirements which applicant can meet and the date when applicant can comply with such requirements.
The steps the applicant is taking to meet the requirements from which the variance
is sought and when compliance will be achieved.
Any beneficial or adverse impact to residents and the environment in affected area resulting from the Department's requiring compliance or granting a variance.
The economic or social impacts of granting or denying the variance.
Based upon the foregoing Findings of Fact, it is specifically concluded, as a matter of law, that Petitioner has failed to demonstrate its entitlement to a variance from the requirements of Rule 17-4.28(8)(a), Florida Administrative Code. Accordingly, it is
RECOMMENDED:
That a Final Order be entered by the Department of Environmental Regulation denying Petitioner's application and the application for a variance.
DONE AND ORDERED this 8th day of June, 1984, at Tallahassee, Florida.
WILLIAM E. WILLIAMS
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 8th day of June, 1984.
COPIES FURNISHED:
Robert A. Routa, Esquire
217 South Adams Street Tallahassee, Florida 32301
Dennis R. Erdley, Esquire Assistant General Counsel
Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32301
Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32301
=================================================================
AGENCY FINAL ORDER
=================================================================
BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
GAR-CON DEVELOPMENT, INC.,
Petitioner, DOAH CASE NO. 83-0823 83-2644
OGC FILE NO. 83-0106
83-0285
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondent.
/
FINAL ORDER
On June 11, 1984, the Division of Administrative Hearings Hearing Officer in the above-styled case submitted his Recommended Order to me as head of the Department of Environmental Regulation. A copy of that order is attached as Exhibit A. Pursuant to Section 120.57(1)(b)8., Florida Statutes, and Florida Administrative Code Rule 17-103.200(1), all parties to the proceeding were allowed ten days in which to submit exceptions to the Recommended Order.
Petitioner, Gar-Con Development, Inc. filed timely exceptions, a copy of which is attached as Exhibit B. Respondent, Department of Environmental Regulation (the "Department" or "DER"), filed a Response to the Exceptions.
RULINGS ON EXCEPTIONS
In reviewing and ruling on these exceptions, I am constrained by Subsection 120.57(1)(b)9, Florida Statutes, which provides in pertinent part:
The agency may adopt the recommended order as the final order of the agency. The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the recommended order, but may not reject or modify the findings of fact unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.
Petitioner, in exception number one (1), argues that the Hearing Officer disregarded the evidence that approximately 3.5 million dollars for materials and 2.8 million dollars for labor would he spent on the upland
development of the project site. This argument is not supported by a thorough examination of the Hearing Officer's Findings of Fact. From the last paragraph of the Findings of Fact, it is obvious that the Hearing Officer considered these matters and concluded that the addition of the proposed docking facilities was not essential to the economic viability of Petitioner's upland development.
That Finding states:
There are several existing marinas and boat ramps within close proximity to the Petitioner's development. Consequently, both the general public and residents at the development have ample access to the waters of the Indian River and its surroundings.
Petitioner has made no showing of any hardship which would justify the granting of a variance from DER permitting requirements.
In other words, based on the record before him, the Hearing Officer did not agree with Petitioner's position that upland development would cease without the addition of the proposed docks. The Hearing Officer's conclusions are supported by testimony from Petitioner's own witnesses. There is competent, substantial evidence in the record to justify the Hearing Officer's finding, therefore Petitioner's first exception is rejected.
Petitioner, in exception number two (2), argues that the record does not contain substantial, competent evidence to sustain the Hearing Officer's finding that no specific workable mechanism for enforcing Petitioner's anti- pollution procedures was established by Petitioner. The Hearing Officer's findings are supported in the record by competent, substantial evidence. The Department introduced credible evidence to indicate that Petitioner's proposed anti-pollution procedures would not eliminate the risk of pollution in violation of Department standards. While parties may differ in their evaluation of the weight and credibility of the evidence presented by the Department and Petitioner, it cannot be said that the Hearing Officer's findings are not based on competent, substantial evidence. Petitioner's second exception is rejected.
Petitioner, in exception number three (3), challenges the Hearing Officer's conclusion that Petitioner failed to provide reasonable assurance that applicable Department water quality standard would not be violated as a result of Petitioner's proposed activities. The Department's experts Reese Kessler, David Hiel and Leslee Williams testified that violations of applicable Department water quality standards would result from Petitioner's proposed activities. Their testimony is the basis for the Hearing Officer's challenged finding. Since the record contains credible evidence supporting the Hearing Officer's Findings of Fact, I, as Secretary, have no legal basis to reject the findings. Petitioner's third exception is rejected.
Petitioner, in exception number four (4), argues that the Hearing Officer applied the wrong standard when evaluating Petitioner's request for a variance. In section seven (7) of the Hearing Officer's Conclusions of Law, he cites Section 403.201(1), Florida Statutes, in its entirety. There is no evidence to sustain Petitioner's claim that the Hearing Officer did not adequately consider Section 403.201(1)(a), Florida Statutes. Petitioner's fourth exception is rejected.
Petitioner, in exception number five (5), challenges the Hearing Officer's finding that the driving of pilings as proposed by Petitioner
constitutes dredging. The Hearing Officer specifically concluded that the driving of pilings as proposed by Petitioner for the construction of the proposed docks constitutes "dredging" within the meaning of Florida Administrative Code Rule 17-4.28(3). This conclusion was supported by the testimony of Department witnesses Helen Setchfield and Reese Kessler and Petitioner's witness Department expert Mark Latch. It is also consistent with established agency practice. For a number of years the Department has treated the driving of piling as dredging. See, Bayshore Homeowners, Inc. v. Department of Environmental Regulation, DOAH Case Nos. 79-2186, 79-2324 and 79- 2354 (Final Order issued December 29, 1980); City of Venice v. Department of Environmental Regulation, DOAH Case No. 80-920 (Final Order issued November 7, 1980); Dr. & Mrs. Constantine C. del Cameo et al., and Florida Wildlife Federation, Inc. v.
State of Florida Department of Environmental Regulation and Ortego Island, Inc., DOAH Case No. 82-2749 (Final Order issued October 3, 1983). Petitioner's fifth exception is rejected.
Petitioner, in exception number six (6), argues that the Hearing Officer erred by not providing a finding of consistency in accord with Florida Administrative Code Rule 17-1.63. Although this provision relates to permits, the Petitioner argues based on other Department variance files that the Department is acting in an inconsistent fashion by denying Gar-Con's Petition for Variance. These files were discussed by Department witnesses Helen Setchfield and Mark Latch. Except for Eastern Marine (Petitioner's Exhibit No. 13), these other cases are distinguished on the basis that there was no active commercial or recreational harvesting of shellfish in the areas where the docks were to be installed. Eastern Marine is primarily an upland basin; it is not a marina or dock facility. Therefore, there is no inconsistency between this decision and previous Department decisions. In addition, the record supports a finding that the Department of Natural Resources recently adjusted its policies concerning marina type facilities in shellfish harvesting waters (Department's Exhibit 6 and testimony of Mr. Heil, a Department of Natural Resources expert In public health and shellfish harvesting). The new policy requires closure of marina or dock areas to shellfish harvesting. The change in policy is due, in part, to a recent survey of current scientific literature addressing the effects of marinas on shellfish harvesting waters and in response to provisions of the National Shellfish Sanitation Program of the U.S. Food and Drug Administration policy. Although the above mentioned rule provides that the agency's decisions be consistent, the rule was never intended to preclude the agency from adjusting its policies as scientific information comes to light or to accommodate other state or federal agency policies. The Department of Natural Resources is tightening its policy concerning shellfish harvesting in the vicinity of marinas, docks and canals, and the Department needs to respond in order to protect this designated use of the waters. In the absence of the Hearing Officer finding a hardship entitling Petitioner to a variance from the requirements for protecting the designated uses of affected waters, it is appropriate for the Department to correspondingly tighten its policy. The record does not support a finding that the Department is treating Petitioner in a fashion inconsistent with other similar applications. Therefore, Petitioner's exception number six (6) is denied.
Accordingly, having considered the record and pleadings in this cause, it
is
ORDERED that:
The Hearing Officer's Findings of Fact and Conclusions of Law are
adopted.
The Petitioner's application for a permit and the application for a variance are denied.
DONE AND ENTERED this 24th day of July, 1984.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
VICTORIA J. TSCHINKEL
Secretary
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
(904)488-4805
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing FINAL ORDER has been furnished by United States Mail to William E. Williams, Hearing Officer, Division of Administrative Hearings, Oakland Building, 2009 Apalachee Parkway, Tallahassee, Florida 32301, and to Robert A. Routa, Esquire, ROBERTS, EGAN & ROUTA, P.A., 217 South Adams Street, P.O. Box 1386, Tallahassee, Florida 32301, on this 25th day of July, 1984.
Docket for Case No: 83-000823
Orders for Case No: 83-000823
| Issue Date |
Document |
Summary |
|
Jul. 24, 1984 |
Agency Final Order
|
|
|
Jun. 08, 1984 |
Recommended Order
|
Petitioner has failed tp demonstrate worthiness of receiving a variance from Department of Regulation (DER) for construction of a dock on the Indian River.
|
