STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ISLAND DEVELOPERS, LTD., )
)
Petitioner, )
)
vs. ) CASE NO. 83-1800
) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )
)
Respondent. )
)
RECOMMENDED ORDER
A final hearing was held in this matter before Marvin E. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings, on April
18 and 19, 1984, in Miami, Florida.
APPEARANCES
For Petitioner: Timothy A. Smith, Esquire
GREENBERG, TRAURIG, ASKEN, HOFFMAN, LIPOFF, QUENTEL & WOLFF, P.A.
Brickell Concourse
1401 Brickell Avenue, PH-1 Miami, Florida 33131
For Respondent: E. Gary Early, Esquire
Assistant General Counsel
Department of Environmental Regulation Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32301
ISSUES AND BACKGROUND
This case concerns the issue of whether the Petitioner should be granted an exemption to construct approximately 2,100 linear feet of seawall along the western and southwestern shorn of Fisher Island, located in Biscayne Bay, Florida. In the alternative Petitioner seeks to obtain a permit for such construction nod accompanying fill in the event that it does not qualify for an exemption.
At the final hearing Petitioner called as witnesses John f. Guttman, Jon
Staiger, J. Van De Kreeke and Howard Teas. Tee Respondent called as witnesses Richard E. Walesky and Jeremy Allen Craft. The Petitioner offered and had admitted into evidence 93 exhibits. The Respondent offered and had admitted into evidence 7 exhibits.
Subsequent to the final hearing the parties submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the
extent that those proposed findings of fact and conclusions of law are inconsistent with this order, they are rejected as being unsupported by the evidence or as unnecessary to a resolution of this cause.
FINDINGS OF FACT
At the final hearing the parties stipulated to certain facts and based upon that stipulation those facts are found as follows:
Petitioner FISHER ISLAND, a Florida limited partnership, owns the entire western and southwestern shore of the artificial spoil island known as Fisher Island, located between Virginia Key and the southern tip of Miami Beach, immediately south of the Port of Miami facilities, in Sections 9 and 10, Township 54 South, Range 42 East, in Dade County, Florida. FISHER ISLAND owns the submerged lands lying between the existing seawall and the line of mean high water. The Board of Trustees of the Internal Improvement Trust Fund (Fund) sold the lands in question in 1920, and FISHER ISLAND has purchased those lands along with most of the island. The lands owned by FISHER ISLAND are set forth in the legal descriptions contained in Deed Nos. 16,336, 16,336c, and 18110 from the Board of Trustees of the Internal Improvement Trust Fund and in two deeds dated October 31, 1979, from Fisher Island Associates, Inc., and Cocolobo Corporation to Island Developers, Ltd. Acting through the Department of Natural Resources (DNR), the Board has admitted FISHER ISLAND'S ownership of the submerged lands that Petitioner proposed to fill and reclaim, and the Board and DNR have raised no objection to Petitioner's application for a permit to restore a seawall.
On or about October 27, 1981, FISHER ISLAND applied to Department of Environmental Regulation (DER) for a dredge and fill permit to restore an existing seawall and thereby bulkhead about 2 100 linear feet of the southwestern shoreline of the island at a distance of IS feet or greater from the shoreline. FISHER ISLAND initially asked that DER approve the proposed project as exempt from the requirements for a dredge and fill permit, under the exemption contained in Section 403.812(2)(a) of the Florida Statutes and Rule 17-4.04(9)(h) of the Florida Administrative Code.
On December 9, 1981, Richard Walesky and Larry O'Donnell of the South Subdistrict Office in West Palm Beach, submitted their report of a visual inspection of the site made by Mr. Walesky in November, 1981. Mr. O'Donnell did not inspect the site. Mr. Walesky walked along the shoreline and swam over the area just offshore in which the applicant's consulting engineer had plotted the line of the seawall. He took no measurements and no soil, water, or any other kind of samples. He did take panoramic photographs of the shoreline. Mr. Walesky observed in his report that 8 to 10 mangroves were scattered over several hundred feet of the area at issue, along with some Australian pines, and that a large dredging pipe was tied up to the trees along the same portion of the shore. He concluded that because water completely covered the allegedly existing seawall except for some pilings in a line along the northern portion of the southwestern shoreline, waterward of the existing mean high water line, and because he found no other visual evidence of the seawall, it was not "a functional seawall and clearly [did] not fit the requested exemption."
On the basis of the report of Mr. Walesky's visual inspection of the site, DER informed Petitioner FISHER ISLAND that its project did not qualify for the exemption. Accordingly, DER proceeded to process the application for a standard dredge and fill permit. On January 4, 1983, Mr. Walesky returned to the site for an inspection of the site's biological characteristics and value and an assessment of the projected impacts of the proposed seawall restoration
on the environment. Again, he took no measurements or samples. He did not note the presence of any grass beds, oyster beds, or clam beds. He did take certain photographs of the shoreline. Mr. Walesky noted that cost of the area was sandy and clean, with algae-covered boulders the main form of life present. On the basis of Mr. Walesky's two inspections, DER issued its Intent to Deny the permit requested by FISHER ISLAND, on April 15, 1983.
The shoreline along which Petitioner wishes to place the proposed seawall runs primarily along the southwest side of Fisher Island. This area is adjacent to a channel called Norris Cut. The depth of the water along Norris Cut drops abruptly from as little as 2 feet to as deep as 18 feet. Over the past years there has been substantial erosion along this shoreline. However, there is a very gradual slope from the shoreline to a point off-shore where there is an abrupt and steep drop-off into the cut. The point where this drop- off occurs is in a straight line along this shoreline and is in direct line with the old seawall located along the Garwood Estate which is located in part along the same shoreline but east of the proposed seawall area. This area of the shoreline is constantly impacted by strong currents and wave action. Aerial photographs from as early as 1945 reveal that the straight line along which the abrupt drop- off occurs has remained straight and in the same position since 1945. This line and the resulting contours are very unusual along shores of is lands in this area and is consistent with the existence of an artificial structure such as a seawall holding the sand along the shore in place.
Typically shorelines in this area which are exposed to this type of tidal, wave and current action have a more gradual slope and a more meandering slope or shoreline. Those same aerial photographs reveal continual erosion along this shoreline and in recent years the rate of erosion has accelerated. This erosion problem would be eliminated by the proposed seawall.
There presently remains along the western tip, two rows of tieback pilings, totaling 80 in number. These tiebacks at one time were part of the seawall which was built along this shoreline. Seaward of one of these groups of tiebacks there remains a small area where the pilings and planks of the old seawall are still visible.
A second group of tiebacks is located along the southwest shore and number 42. These two groups of pilings appear to be parallel to the line of drop-off and functioned as part of a seawall along this shore.
In the early 1960's pilings along the drop-off line extended above water level and were visible along approximately 50 per cent of the area of the proposed seawall. These pilings were a navigational hazard and in 1981 were nipped off at the sand bottom in order to avoid boating accidents. These piles were part of the old seawall.
Just east of the area of the proposed seawall there is a marina entrance which has been cut into the shoreline, dredged, and bulkheaded. At one point during the construction of the bulkhead that runs along the shore the contractor veered off course a small amount and hit the remaining portion of the old seawall in that area. The old seawall was stable enough that pilings could not be driven and so the pilings, planks and cables of the old seawall were removed. In order to dredge and clear the entrance to the marina it was also necessary to remove the old seawall located in the entrance area.
The various experts called by Petitioner and Respondent gave different definitions of a seawall. John R. Guttman, an expert in civil and coastal engineering, marina planning and seawall construction, testified that the
purpose of a seawall is to retain fill and that a "functioning seawall" did not have to be visible above water. Dr. Jacobus Van De Kreeke, an expert and Ph.D. in coastal and oceanographic engineering, testified that the function of a seawall is to retain lands, to prevent land from sliding into the ocean, and to protect, uplands from wave action. Dr. Van De Kreeke based his definition primarily upon the Shore Protection Manual of the Army Corps of Engineers and opined that the structure along the drop-off line in the area of the proposed seawall is still a functioning seawall. Mr. Walesky, who is an expert in marine ecology, testified that a seawall functions to separate the land from the sea.
Jeremy Craft, an expert in water quality and marine ecology, argued with the definition of a seawall given by Mr. Walesky. Mr. Walesky and Mr. Craft are employees of the Respondent, DER, and Mr. Guttman and Dr. Van De Kreeke testified on behalf of Petitioner. The term "seawall" is not defined in the DER rules or in the Florida Statutes.
Up to some point in time in the past there was a complete and functioning seawall along the shore involved in this application. The subsurface portion of that seawall remains to date and continues to perform the function of that portion of a seawall which lies below the surface and in the soil.
The shoreline involved, at one time bad 8 to 10 white mangroves growing in and among the Australian pines which grew along the shore in the same area. The mangroves were in a line no more than one plant deep. Prior to Mr. Walesky's second inspection these mangroves were apparently pulled out by dredge pipes which had been anchored to them by someone other than Petitioner. It is likely that without the Australian pines these mangroves would have been washed away.
Of the three types of mangroves the white mangrove lives farther up- shore and is less susceptible to growing or becoming established in the inter- tidal zone. Red mangroves live out in the water, grow farther into the inter- tidal zone and are considered to be of higher value than white mangroves in a mangrove eco-system. A mangrove eco-system is beneficial to the environment. A few singular mangroves do not constitute a mangrove eco-system.
Mangroves become established by seedlings becoming trapped along shore and taking root. In this area of the Fisher Island shoreline, the shore is constantly washed by swift currents and tidal and wave action. There are no extended periods of no motion because of the rapid turnover and change in direction of tides in this area. Some of the swiftest currents in the area of Norris Cut and Fisher Island occur directly along and adjacent to this shoreline. The result is that suspended materials such as mangrove seedlings have no opportunity to accumulate along the shoreline. These same factors also result in a very sparse rack line in this area. It is highly unlikely that this shoreline would support a mangrove fringe.
In the fall of 1983 when Dr. Howard Teas, an expert marine biology, water quality, and coastal and mangrove ecology, inspected the area involved he found no mangrove seeds along the rack line on Fisher Island when they were present elsewhere in the area. Dr. Teas as well as Dr. John Steiger, opined that this high energy shoreline is not conducive to the establishment of a mangrove fringe and it is highly unlikely that a mangrove fringe will become established along this shore. Mr. Walesky in his inspection prior to the final hearing observed sesuvium grass along the shoreline and saw one red mangrove seedling which had become rooted in the sesuvium grass. Mr. Walesky agreed that
this shoreline is a high velocity area, but opined that a number of years from now mangroves may begin to grow along this shoreline.
Some grass beds do appear in the inter-tidal area which would be filled under this application. These grass beds cover about 3.8 to 4 per cent of the total area involved. These beds are sparse with very low density. Haladule and halophila are the grasses found along this shore. The numerous photographs and aerial photographs presented in evidence revealed no human activities or construction along this shoreline which could have prevented the establishment or growth of these grass beds in this area over the last three or four years. Both haladule and halophila can become established in one year.
Brownish algae also appears along this shoreline and forms a thin felt-like mat in the areas where it appears. The water in this area is very turbid and there are no oyster or clam beds. The number and density of
organisms along this shoreline are both very low. The area along this shoreline is one of poor productivity. Samples taken by Petitioners expert in the vicinity of this shoreline had a density of organisms approximately 1710 the absolute density of typical areas of Biscayne Bay.
The soil along the shoreline involved is primarily sandy silt. This type of soil has some cohesiveness but not very much. Neither party in the Instant case did testing to determine the specific cohesive properties of the soil along Fisher Island and Norris Cut.
The proposed seawall will begin at a point approximately 70 to 100 feet west of the marina entrance. Approximately 500 to 530 feet of the westernmost portion of the proposed seawall will be located beyond or outside of the boundary of the Biscayne Bay Aquatic Preserve.
The seawall will be constructed of a slab and pile concrete system. This construction approach is an acceptable method of constructing a seawall in this area and is identical to the structure that was permitted by DER in 1979 for another area of shoreline of Fisher Island. There is a cap along the top of the proposed seawall which will prevent stormwater runoff from the island into the adjacent waters of Norris Cut.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties of this action.
DER has jurisdiction over the construction of the proposed seawall at this location, pursuant to Chapters 403 and 253, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code.
Petitioner seeks to construct approximately 2,100 linear feet of seawall along the western and southwestern shore of Fisher island. Petitioner contends that it is entitled to an exemption to construct the seawall as a restoration of a seawall pursuant to Section 403.813(2), Florida Statutes. Petitioner also contends that if it does not qualify for an exemption it has given reasonable assurances that this project will have no significant adverse impact upon natural marine habitats and would also comply with Section 258.165, Florida Statutes, if that section could serve as a basis for DER's denial of its permit.
DER has issued its intent to deny Petitioner's requested permit and contends that Petitioner is not entitled to an exemption under Section 403.813(2) because there does not exist a "functioning" seawall in the area of the proposed restoration. DER also contends that the proposed seawall and approximately 1.7 acres of fill will result in the destruction of marine productivity to an extent that renders it contrary to the public interest and therefore not eligible for a permit under Section 253.124, Florida Statutes. DER also contends that the proposed project is within the Biscayne Hay Aquatic Preserve and is therefore prohibited by Sections 258.165(3)(b) and (d), Florida Statutes.
Section 403.813(2), Florida Statutes, provides, in relevant part, as follows:
No permit under this chapter, chapter number
373 or chapter 253, chapter 61-691, Laws of Florida, or chapter 25214 or chapter 25270, Laws of Florida, 1949 shall be required for activities associated with the following types of projects. . . .
The restoration of seawalls at their previous locations or upland of, or within 1 foot waterward of, their previous locations.
Pursuant to its rulemaking authority under Sections 403.061(7) and 403.813(2)(e), Florida Statutes, DER has adopted Rule 17-4.04(9)(h), Florida Administrative Code, which provides:
17-4.04 Exemptions. The following sources are exempted from the permit requirements of this chapter.
* * *
(9) Construction; Dredging or filling activities associated with the following types of projects:
* * *
(h) The restoration of seawalls at their previous location or upland of or within one
foot waterward of their previous location. No filling can be performed except in the above authorized restoration of the seawall. No construction shall be undertaken without necessary title or leasehold interest, especially where private an; public ownership boundaries have changed as a result of natural occurences such as accretion,
reliction and natural erosion. The Commission recommends and encourages some method of land retention such as riprap, which is more environmentally compatible than vertical seawalls.
When the above rule was first proposed it included a requirement that the seawall be a functioning seawall and required that there must have been no substantial encroachment of the waters of the state landward of the seawall in order to qualify for the exemption. The functionality requirement received strong objection and was not included in the rule as promulgated. However,
subsequent to the promulgation of the above rule DER uniformly required that a seawall be a functioning seawall in order for an applicant to obtain a permit for restoration under the statutory exemption. That policy has been held to be a "rule" and therefore invalid because it has not been promulgated in accordance with Chapter 120, Florida Statutes. See, Island Developers Ltd. v. State of Florida, Department of Environmental Regulation, DOAH Case No. 83-2563R (Final Order entered April 11, 1984). The functionality requirement was the basis for the denial of the exemption in the instant case.
Both Section 403.813(2)(e), Florida Statutes and Rule 17-4.04(9)(h), Florida Administrative Code, refer to restoration of seawalls. The term restoration is defined by Webster's New Twentieth Century Dictionary, 2nd Ed. (1980) at p. 1544 as:
a restoring or being restored; reinstatement.
a putting or bringing back into a former, normal, or unimpaired state or condition.
a representation of the original form or structure, as of a building, fossil, animal, etc.; reconstruction.
in theology, the doctrine of the final recovery of all men from sin and alienation from God to a state of happiness; universal salvation; Universalism.
that which is restored.
the Restoration; (a) the re-establishment of the monarchy in England in 1860 under Charles II; (b) the period of the reign of Charles II
(1860-1685); sometimes taken as including the reign of James II (1685-1688).
Syn.--replacement, re-establishment, renovation, reinstatement, revival, renewal, recovery, restitution, redintegration, reparation, return.
The term "restoration" contemplates more than mere repair and contemplates returning the item to be restored to its prior unimpaired state. The "functionality" requirement which was the basis for DER's denial of the exemption in the instant case has not only been declared to be an invalid rule, but also appears to conflict with and impose a restriction not contemplated by Section 403.813(2)(e) The statute refers only to "seawalls" and does not seek to define nor limit that term to a particular state of repair or disrepair in order to qualify. The statute also does not speak to any particular time frame for such restoration.
Although the parties could not totally agree on the definition of a seawall, both Petitioner's and Respondent's witnesses sought to define that term by stating its purpose or function. Petitioner's experts emphasized the fact that a seawall holds soil or fill in place and prevents erosion while DER's experts stated that the function of a seawall was to separate the sea from the land. There can be no argument that one of the primary functions of a seawall is to prevent erosion and this is accomplished at least in part by separating the sea from the land. However, a seawall must by its very nature extend
substantially below the surface of the water and into the subsurface soils. The entire structure constitutes the seawall and the entire structure serves the purpose and function of a seawall.
In the instant case, the evidence established that at some point in time since 1920 a seawall existed along the southwest and western shore of Fisher Island and a substantial portion of that seawall remains intact below the shallow waters along that shore. The seawall has deteriorated substantially over the years. However, that portion of the seawall which now rests below the surface of the shoreline continues to hold the sand along the shoreline in place and has limited or prevented further erosion of the shallow area adjacent to the shoreline. Section 403.813(2)(e) by speaking to "restoration" rather than "repair" does not contemplate that the total structure of the seawall must be intact and in place in order for the exemption to apply. Where there is sufficient seawall remaining to show its prior existence and location it falls within the statute and the applicant can establish entitlement to the exemption. Petitioner in the instant case has by competent, substantial evidence established the existence and location of the seawall to be restored and therefore is entitled to the exemption under Section 403.813(2)(e), Florida Statutes. This exemption includes the necessary fill behind the seawall.
Although the conclusion that Petitioner has established its entitlement to the exemption under Section 403.813(2)(e) makes it unnecessary to address whether Petitioner has established entitlement to a permit under the applicable standards or criteria a in the absence of an exemption, it is appropriate that that issue be addressed in this Recommended Order.
Section 403.087(1) and (4) provide in relevant part 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. . . .
(4) The department shall issue permits to construct, operate, maintain, expand, or modify an installation which may reasonably be expected to be a source of pollution
only when it determines that the installation is provided or equipped with pollution control facilities that will abate or prevent pollution to the degree that will comply with the standards or rules promulgated by the department. . . .
Section 253.124(7), Florida Statutes, provides:
(7) Any riparian upland owner of land bordering on or in the navigable waters of the state who desires to repair, rebuild, replace, or reconstruct coastal structures in the nature of seawalls, revetments, retaining walls, bulkheads or other similar protective structures installed upon his riparian upland, or who desires to restore such
uplands after damage by avulsion or by artificially induced erosion, shall, before undertaking such project, obtain a permit for such work from the department, except as provided in s. 403.813(2). A biological survey and ecological study may not be required if the proposed work lies at no greater distance than 25 feet into the waters where such work is proposed from the existing and established line of mean high water or existing coastal structure. A permit issued under the provisions of this subsection shall not be construed to allow construction of coastal structures or restoration of lands that may be subject to the provisions of chapter 161. In an emergency threatening damage to life or public property, the Department of Transportation will be permitted temporarily to repair, reconstruct, rebuild, or replace any structures or
roadways on the state-maintained transportation system, subject to immediate notification of the secretary of the department and his subsequent review and approval.
Rule 17-4.29 contains the requirements and criteria for issuance of permits pursuant to Chapter 253, Florida Statutes. That rule provides in relevant part as follows:
[T]he following activities at or below the line of the mean high water or ordinary high water in, on, or over the navigable waters of the State require a department permit:
* * *
(a) Filling by the construction of islands, extensions of existing lands or is lands bordering on or in the navigable waters including filling to create artificial reefs, groins, jetties, breakwaters, riprap or other type sea walling, revetments and any similar type structures and filling associated with construction and/or installation of activities described in this rule.
* * *
The Department shall not issue a permit unless the biological survey, ecological study and hydrographic survey, if any, together with information and studies provided by the applicant affirmatively show:
that such 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, and will not result in the destruction of oyster beds, clam beds, or marine productivity, including, but not
limited to, destruction of natural marine habitats, grass flats suitable as nurser or feeding grounds for marine life, and established marine soils suitable for producing plant growth of a type useful as nursery or feeding grounds for marine life or natural shoreline processes to such an extent as to be contrary to the public interest, and
that the proposed project will not create a navigational hazard, or a serious impediment to navigation, or substantially alter or impede the natural flow of navigable
waters, so as to be contrary to the public interest.
Pursuant to Rule 17-4.07, Florida Administrative Code, an applicant is required to affirmatively provide reasonable assurances based upon plans, test results, and other information that the construction, expansion, modification, or operational activity envisioned in the permit application will not discharge, emit or cause pollution in contravention of the DER standards, rules or regulations. The quality of proof necessary to give the required assurances is set forth in Rule 17-1.59, Florida Administrative Code, which provides that the burden of proof related to reasonable assurances and other items of proof must be by a preponderance o the evidence before the requested permit may be granted.
The above Findings of Fact and the evidence in the record establish that the proposed seawall and resulting till will not cause the various deleterious affects referred to in the above quoted rule to such an extent as to be contrary to the public interest. The fill over approximately 1.6 to 1.7 acres behind the seawall will in fact eliminate the grass beds in the area to be filled. However, those beds are very sparse and cover only about 3.8 per cent of the total area involved. The samples taken by Petitioner's experts reflect that this is an area et very low productivity and because of the swift currents and tidal and wave action it is unlikely that this area will improve as a natural marine habitat in the future. It is concluded that Petitioner has by a preponderance of the evidence provided reasonable assurances as required by Rule 17-4.07, Florida Administrative Code.
The last issue to be resolved is DER's contention that the requirements of Section 258.165, Florida Statutes, the Biscayne Bay Aquatic Preserve Act, prohibit this project. DER argues that it is permitted to consider the criteria of Section 258.165 in granting or denying a permit under Section 253.124, Florida Statutes. The evidence reveals that not all of the proposed seawall will be located within the boundary of Biscayne Bay Aquatic Preserve. The westernmost 500 to 530 feet of the proposed seawall will lie outside the statutory boundary of the preserve. To the extent' that the proposed location lies within the preserve, it is concluded that DER does not have the authority to deny this permit based upon the requirements of Section 258.165.
As the First District Court of Appeal recently stated in Grove Isle, Ltd. v. State of Florida, Department of Environmental Regulation, Case No. A0-
354 (Opinion filed March 22, 1984):
It is a cornerstone of administrative law that administrative bodies or commissions, unless specifically created in the constitution, are creatures of statute and
derive only the power specified therein. Florida Power & Light Co. v. Florida Public Service Commission, 8 FLW 116 (Fla., March 17, 1983); Fiat Motors of North America, Inc.
v. Calvin, 356 So. 2d 908 (Fla. 1st DCA), cert. denied, 360 So. 2d 1247 (Fla. 1978); State ex rel. Greenberg v. Florida State Board of Dentistry, 297 So. 2d 628 (Fla. 1st
DCA); cert. dismissed, 300 So. 2d 900 (Fla. 1974).
DER has not been granted any permitting or other regulatory authority over the Preserve under Section 258.165, Florida Statutes. The Board of Trustees of the Internal Improvement Trust Fund is the particular state agency that has been empowered and mandated by Section 258.165, Florida Statutes, to maintain the Biscayne Bay Aquatic Preserve. DER specifically asserts Sections 258.165(3)(b) and (d) as the two sections which prohibit this proposed construction. Those two sections provide in relevant part:
(b) No further dredging or filling of submerged lands of the preserve shall be approved or tolerated by the board of trustees except:
Such minimum dredging and spoiling as may be authorized for public navigation projects or for such minimum dredging and spoiling as may be constituted as a public necessity or for preservation of the bay according to the expressed intent of this section.
Such other alteration of physical conditions as may be necessary to enhance the quality or utility of the preserve.
Such minimum dredging and filling as may be authorized for the creation and maintenance of marinas, piers, and docks and their attendant navigation channels and access roads. Such projects may only be authorized upon a specific findings by the board of trustees that there is assurance that the project will be constructed and operated in a manner that will not
adversely affect the water quality of the preserve. This subparagraph shall not approve the connection of upland canals to the waters of the preserve.
Such dredging as is necessary for the purpose of eliminating conditions hazardous to the public health or for the purpose of eliminating stagnant waters, unsightly mud flats, islands, and spoil banks, the dredging of which would enhance the aesthetic quality and utility of the preserve and be clearly in the public interest as determined by the board of trustees.
Any dredging or filling under this subsection or improvements under subsection (5)
shall be approved only after public notice and hearings in the area affected, pursuant to chapter 120.
* * *
The board of trustees shall not approve any seaward relocation of bulkhead lines or further establishment of bulkhead lines except when a proposed bulkhead line is located at the line of mean high water along the shoreline. Construction, replacement, or relocation of seawalls shall be prohibited without the approval of the board of trustees, which approval may be granted only it riprap construction is used in the seawall.
Both these subsections are within that portion of Section 258.165 which sets forth the "Authority of Trustees." The statute clearly contemplates that the Board of Trustees and not DER will determine if a particular activity is prohibited or should be approved within the Preserve. It is therefore, inappropriate for DER to utilize the prohibitions or criteria of Section 258.165 as a basis for denying a permit under chapter 253. It is unnecessary therefore to reach the question of whether privately, owned submerged lands are excepted from the provisions of Section 258.165, Florida Statutes.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:
That the Department of Environmental Regulation enter a final order granting the exemption of Petitioner's seawall as requested.
DONE and ENTERED this 9th day July, 1984.
MARVIN E. CHAVIS
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 9th day of July, 1984.
COPIES FURNISHED:
Timothy A. Smith, Esquire 1401 Brickell Avenue, PH-1
Miami, Florida 33131 Gary Early, Esquire 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
=================================================================
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION
ISLAND DEVELOPERS, LTD.
Petitioner,
vs. DOAH CASE NO. 83-1800
OGC FILE NO. 83-0236
DEPARTMENT OF ENVIRONMENTAL REGULATION, STATE OF FLORIDA,
Respondent.
/
FINAL ORDER
On July 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. The Department filed timely exceptions, a copy of which is attached as Exhibit B. Petitioners, Island Developers, Ltd., filed a response to the Exceptions, a copy of which is attached as Exhibit C.
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 the law.
The first two exceptions of the Department challenge the Hearing Officer's Conclusion of Law No. 8 which concluded that the proposed reconstruction of the seawall was exempt and that filling in of the waters behind the seawall was also exempt. I find merit in these exceptions and find that Conclusion of Law No. 8 is legally erroneous.
Section 403.813(2), Florida Statutes, provides, in relevant part, as follows:
No permit under this chapter, chapter number
373 or chapter 61-691, Laws of Florida, or chapter 25214 or chapter 25270, Laws of Florida, 1949 shall be required for activities associated with the following types of projects . . . .
* * *
The restoration of seawalls at their previous locations or upland of, or within 1 foot waterward of, their previous locations.
Rule 17-4.04(9)(h), Florida Administrative Code, provides in pertinent part:
17-4.04 Exemptions. The following sources are exempted from the permit requirements of this Chapter.
* * *
(9) Construction; Dredging or filling activities associated with the following type of projects:
(h) The restoration of seawalls at their previous location or upland of or within one
(1) foot waterward of their previous location. No filling can be performed except in the above authorized restoration of the seawall. No construction shall be undertaken without necessary title or leasehold interest, especially where private and public ownership boundaries have changed as a result of natural occurences such as accretion, reliction and natural erosion. The Commission recommends and encourages some method of land retention such as riprap,
which is more environmentally compatible than vertical seawalls.
The legislature has defined seawall as: "Seawall" means a man-made wall or
encroachment, except rip-rap, made to break the force of the waves and to protect the shore from erosion. Subsection 69(3), chapter 84-338, Laws of Florida; Subsection 403.911(6), Florida Statutes.
The Hearing Officer concluded:
There can be no argument that one of the primary functions of a seawall is to prevent erosion and this is accomplished at least in part by separating the sea from the land.
However, a seawall must by its very nature extend substantially below the surface of the water and into the subsurface soils. The entire structure constitutes a seawall and the entire structure serves the purpose and function of a seawall.
Therefore, to be a seawall a structure must be capable of breaking the force of the waves and protecting the shore from erosion. The facts as found by the Hearing Officer do not support the conclusion that a seawall exists along the western and southwestern shore of Fisher Island. The Hearing Officer found that presently only the subsurface portions of a previously existing seawall remains. As stated in the earlier quote from the Recommended Order, it takes an entire structure to separate the sea from the land. The remains of the seawall cannot break the force of the waves and protect the shore from erosion. In fact the Hearing Officer found: "Those same aerial photographs reveal continual erosion along this shoreline and in recent years the rate of erosion has accelerated. This erosion problem would be eliminated by the proposed seawall." The remains of the seawall do not constitute a seawall. Therefore, the exemption is inapplicable.
I am not unmindful of Petitioner's argument that the term "restoration" encompasses the rebuilding of a seawall that existed in the past. However, such an interpretation would not be consistent with the overall objectives of the law creating the exemption, The Florida Environmental Reorganization Act of 1975, Chapter 75-22, Laws of Florida, and Chapters 253 and 403, Florida Statutes. The exemptions as found in those statutes were provided for those activities which would cause minimal environmental harm. No prior evaluation of the environmental consequences of a project or activity qualifying for one of those exemptions is necessary. This is true for the restoration of an existing seawall which operates land and sea. The restoration of a seawall which remains capable of breaking the force of waves and protecting the shore from erosion causes minimal environmental damage. The forces of the waters may require that such seawalls be replaced or restored from time to time. Nonetheless, to allow a seawall to deteriorate for a number of years to the extent that it no longer prevents erosion and then have it rebuilt results in multiple assaults on the environment. The failure of the seawall to prevent erosion contributes to water quality degradation, and then after the shore has eroded the seawall when reconstructed would require fill behind it causing further and longer term water
quality problems. The exemption was intended to provide for the continuance of the seawall as a physical barrier between the water and the shore without the necessity of permitting, thus allowing for the prompt correction of a deteriorating seawall.
Therefore, the Hearing Officer's conclusion that the construction of the seawall is exempt pursuant to Section 403.813(2)(e), Florida Statutes, is rejected.
The Hearing Officer also concluded that the exemption authorizing the restoration of a seawall also authorized filling in waters that would be behind the seawall, i.e., backfilling. The Hearing Officer's conclusion being broadly stated is misleading. Department Rule 17-4.04(9)(h), Florida Administrative Code, provides in part:
"[n]o filling can be performed except in the above authorized restoration of the seawall."
This rule has been upheld as valid. Island Developers Ltd. v State of Florida Department of Environmental Regulation, 6 FALR 2575. Thus only the filling necessary to restore the seawall is allowed. No more filling is authorized than that which is necessary to restore the shore to its original configuration.
Also, placement of the fill must not cause any violations of water quality standards.
The Department also took exception to the Hearing Officer's Conclusions of Law Nos. 15 and 16 which conclude that the Department has no authority to consider Chapter 258, Florida Statues, in its permitting decisions. The conclusion is contrary to numerous prior decisions of the agency. See State of Florida Department of Environmental Regulation v. Florida East Coast Properties, Inc. 5 FALR 1941-A, Sept. 1, 1983, and cases cited therein. Section 253.124, Florida Statutes, states that "in the event the department finds that such proposed . . . filling of land . . . is not violative of any statute, rule, or other restriction which may be applicable thereto . . . the permit shall be granted to the applicant . . ." (e.s.) Therefore, Section 253.124 expressly gives the Department the authority to base its permitting decisions in part on whether the Department's permit will authorize violations of other statutes, particularly statutes such as Chapter 258, Florida Statutes, which have similar objectives as Chapter 253. Section 253.124 also requires the Department to "consider any other factors affecting the public interests." Violation of other statutes would be such a factor affecting the public interest. Therefore, the Department must determine whether its action will authorize a clear violation of another closely related statute. Accordingly, these conclusions of law by the Hearing Officer are rejected.
However, based on the record before me I cannot conclude that the issuance of the permit be violative of the provisions of Chapter 258. Applying the criteria of Chapters 253, 258, and 403, and Department Rules 17-4.07 and 17- 4.29, Florida Administrative Code, to the facts as found by the Hearing Officer still leads to the conclusion that the project would be in the public interest. The only unresolved issue would be whether the Board of Trustees of the Internal Improvement Trust Fund would have to approve certain portions of the project, and that lack of approval would necessitate denial of the permit. The Hearing Officer Specically refused to reach this question. Since a DER permit would not constitute such approval I see no need to remand the matter to the Hearing Officer for a ruling on this point. An express provision contained in the
permit to the effect that it does not constitute approval by the Board as may be required by subsection 258.165,
Florida Statutes, would suffice to protect the public interest in this case.
ORDER
Accordingly, having considered the Recommended Order, the Exceptions thereto, and the Response to the Exceptions, it is hereby
ORDERED, that:
The Hearing Officer's Findings of fact and Conclusions of Law except as modified by this order are adopted.
The Permit applied for be granted subject to the standard conditions contained in dredge and fill permits and with the following provision:
This permit is conditioned on the applicant having received necessary approvals from Board of Trustees of the Internal Improvement Fund pursuant to Section 258.165(3) and other applicable statutes.
DONE AND ORDERED this 24th day of August, 1984.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
VICTORIA J. TSCHINKEL
Secretary
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Telephone: (904)488-4805
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that one true copy of the foregoing Final Order has been furnished by U.S. Mail to Marvin E. Chavis, Hearing Officer, Division of Administrative Hearings, Oakland Building, 2009 Apalachee Parkway, Tallahassee, Florida 32301, and a true copy to Timothy A. Smith, Greenburg, Traurig, Askew, Hoffman, Lipoff, Rosen and Quentel, P.A., 1401 Brickell Avenue, PH-1, Miami, Florida 33131.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
John C. Bottcher Deputy General Counsel
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Telephone: (904)488-9730
| Issue Date | Proceedings |
|---|---|
| Aug. 27, 1984 | Final Order filed. |
| Jul. 09, 1984 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 24, 1984 | Agency Final Order | |
| Jul. 09, 1984 | Recommended Order | Petitioner should receive permit to restore and reconstruct seawall on Fisher Island. Department of Environmental Regulation (DER) declared to have no authority over Biscayne Bay Aquatic Preserve |
ISLAND DEVELOPERS, LTD. vs. DEPARTMENT OF ENVIRONMENTAL REGULATION, 83-001800 (1983)
ROBERT F. AND VELDA L. ELBERT vs. DEPARTMENT OF ENVIRONMENTAL REGULATION, 83-001800 (1983)
MASHTA POINT PROPERTIES, INC. vs. DEPARTMENT OF NATURAL RESOURCES, 83-001800 (1983)
LINDA L. BRASWELL (NO. 082646365) vs DEPARTMENT OF ENVIRONMENTAL PROTECTION, 83-001800 (1983)
