ROBERT B. SAMPSON, CARL SEIDEL ) and BETTY HOLCOMBE, )
vs. ) CASE NO. 83-2134
) HARBOR WOODS OF BREVARD, INC., ) and STATE OF FLORIDA ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )
Respondent. )
This matter came on for hearing in Cocoa, Florida, before the Division of Administrative Bearings by its duly designated Bearing Officer, Robert T. Benton, II, on October 12, 1983. The petitioners appeared pro se.
For Respondents: Joe Teague Caruso, Esquire Harbor Woods of Post Office Box 757 Brevard, Inc. Cocoa Beach, Florida 32931
Department of Dennis R. Erdley, Esquire Environmental 2600 Blair Stone Road Regulation Tallahassee, Florida 32301
After the Department of Environmental Regulation (DER) proposed to issue a permit authorizing Harbor Woods of Brevard, Inc. (Harbor Woods), to dredge a five-acre basin, dredge a flushing channel through a dike to Newfound Harbor, create a fill island and extend lands by filling, construct a foot bridge to the fill island and construct a stormwater discharge system, the Committee to save Sykes Greek filed a petition for formal hearing.
Mr. Robert B. Sampson, who is not a lawyer, appeared at hearing on behalf of the Committee to Save Sykes Greek. Rather than be examined as to the criteria specified in the qualified representative rule, Rule 28-5.1055, Florida Administrative Code, Mr. Sampson and the two other members of the Committee to Save Sykes Creek who attended the hearing, Carl Seidel and Betty Holcombe, elected to adopt as their own the allegations of the petition filed by the Committee to Save Sykes Creek and were permitted to participate individually as objecting petitioners.
Whether the permit Harbor Woods seeks should be denied lest effluent from a sewage treatment plant enter the proposed basin? Whether the proposed project will cause odors and degradation of water quality in contravention of DER standards and rules, as a result of stormwater runoff?
On Merritt Island in Brevard County, Harbor Woods owns an 80-acre parcel on the western shore of Newfound Harbor. From the north, Sykes Creek flows into Newfound Harbor, which opens into the Banana River to the south. The parties stipulated that Newfound Harbor, which is navigable, contains Class III waters. Paralleling the northern boundary of the Harbor Woods property is a ditch through which 800,000 gallons or more of effluent from a sewage treatment plant operated by Brevard County pours into Newfound Harbor daily, at a point about 400 feet north of the proposed flushing channel. A mile or so south of the proposed flushing channel is the nearest boundary of the Banana River Aquatic Preserve.
PETITIONER'S INTEREST
Robert B. Sampson, Carl Seidel and Betty Holcombe have all been boating in Newfound Harbor and expect to use the waters of Newfound Harbor in the future. Ms. Holcombe is an avid angler and has fished those waters often.
MAN vs. MOSQUITO
At one time an arm of Newfound Harbor extended onto the property Harbor Woods now proposes to develop. As a means of mosquito control, the authorities caused a dike to be built along the eastern edge of the property, wailing off the shallows and interdicting the tidal flow. The impoundment was then filled with fresh water in an effort to keep the bottom covered. The idea was to deprive mosquitoes of mud they need for depositing eggs. The effort was not completely successful, and the area continues to be sprayed with insecticides. The mosquitoes that now breed in the vicinity of the impounded fresh water are capable of transmitting encephalitis and other diseases and constitute a more serious problem than the mosquitoes whose larvae formerly hatched on the salt mud flats. The area of the original impoundment was reduced some time after 1967 by filling in conjunction with development to the north of the Harbor Woods property.
PARTIAL RESTORATION PROPOSED
Barber Woods, which owns the bottom landward of the dike, proposes to drain the fresh water to an unspecified upland site, uproot some seven and a half acres of cattails, remove the muck, and fill with clean sand so as to reshape the perimeter of the impoundment and its bottom contours; and consolidate four small islands into a single "recreational" island within the newly formed basin, which would only then be connected to Newfound Barber by dredging a flushing channel through the dike. Unplugging the dike would entail removal of about a quarter acre of productive wetlands, mainly mangroves, which would be transplanted inside the basin. The project would improve the property aesthetically and result in more land area for the "mid-rise" condominium buildings Barber Woods intends to erect. Although the project would not restore the site to its precise pro-impoundment state, the proposed basin is designed, in part, to fill the ecological role the pristine embayment once played.
The level bottom of the new basin would lie at 1.5 feet NGVD; once the dike was breached, saltwater would fill the basin to a uniform depth of one and one half feet, and spill over to submerge five acres of cordgrass (Spartina alterniflora) which would be planted along the northern and southern shores of the basin. The unplanted bottom of the basin would comprise another five acres. After removing 330 feet of the dike, and in order to insure the movement of water in and out of the basin, a channel 150 feet wide would be dug out into Newfound Harbor 92 feet waterward of the mean high water line. Turbidity curtains would be used during dredging.
If the cordgrass and the mangroves, which are to be planted in the same area, take hold and flourish, white mangroves would dominate in five years' time, and the quarter acre strip along the dike which would be lost would then have been replaced by an area twenty times as large. Eventually red mangroves should become dominant. The uncontroverted evidence was that, because of all the new vegetation proposed, the project would ameliorate water quality in Newfound Harbor and provide a new food source, habitat and nursery area for various organisms, including mosquitophagous fish.
AMBIENT POLLUTION
The objectors raised the question whether any plantings in the new basin could be expected to survive in light of the poor water quality in Newfound Harbor. The waters of Newfound Barber do not meet minimum standards for Class III waters now, and would not be brought up to those standards by any project like the one proposed. Brevard County's Fortenberry Sewage Treatment Facility, the source of the effluent pouring into Newfound Harbor, has been the object of administrative proceedings in which DER has alleged that the facility is discharging excessive amounts not only of nutrients like phosphorous but also of copper, mercury, lindane, and malathion. Petitioners Exhibit No. 4. Excess nutrients in the water would foster, not retard, the growth of submerged plants, but some of the substances DER itself claims are being introduced into Newfound Harbor could be lethal to plants. DER has alleged in a notice of violation that effluent from the Fortenberry Sewage Treatment Facility "is acutely toxic." Petitioners' Exhibit No. 4. Reese Kessler, a DER employee, noted "a six inch layer of black ooze" along the Newfound Barber side of the dike in September of 1981, which, he reported, "Presumably resulted from a recent heavy discharge of sewage effluent." DER's Exhibit No. 2.
If constructed as proposed, the basin would exchange waters with Newfound Barber, primarily under the influence of the wind. Southeast winds predominate at the site. When the wind blows from the southeast, a clockwise gyre in Newfound Barber takes the effluent due east from the mouth of the ditch and away from the proposed flushing channel, but a northeast wind would result in sewage effluent entering the basin, if it blew hard enough. Runoff entering the basin from upland would also be a motive force, as would the ebb and flow of the tide, to a lesser extent; the tidal range in the area is on the order of
one-tenth of a foot. Ninety percent of the water in the basin would leave it and enter Newfound Barber in 30 days' time, even without any wind. The flushing channel is fairly wide and not much deeper than the surrounding bottom; natural circulation should be enough to keep it clear of siltation.
Because water quality in Newfound Harbor is so bad, the water in the proposed basin would also fall below minimum standards for Class III waters. According to uncontroverted testimony, however, the new basin would not cause or aggravate water quality standard violations. The new vegetation would be
protected from most boat traffic by being planted in shallow beds. The experts unanimously predicted it would thrive and ameliorate a bad situation.
STORMWATER RUNOFF
The dike not only keeps the waters of Newfound Harbor out; it also prevents any additional pollution of Newfound Harbor from upland source. Harbor Woods intends to construct parking lots, in conjunction with the multi-story condominium buildings it plans to build around the proposed basin. The precise location and dimensions of the buildings and parking lots have not been decided upon but it is clear that rainwater draining over the parking lots would make its way to the proposed basin and, eventually, to Newfound Harbor. Harbor Woods has proposed to encircle the new basin with grassy swales large enough to hold the first half inch of rain that would otherwise drain directly into the basin. Water overflowing the swales could reach the basin only by passing through a sand filter, which would remove all oil.
Gasoline is not ordinarily split in most parking lots and quickly evaporates, in any case. But rain washing over parking lots picks up oils, greases and heavy metals. Bow badly water traversing a parking lot Is polluted depends principally on what the parking lot surface is. The optimal parking surface is concrete block, which allows for some percolation. The first inch of rainfall washes off 90 percent of the substances that pollute runoff The evidence was uncontroverted that the runoff would meet Class III standards before it entered the proposed basin.
PROPOSED FINDINGS CONSIDERED
Respondent DER filed proposed findings of fact, conclusions of law and recommended order. DER's proposed findings of fact have been considered and in large measure adopted, in substance. To the extent they have been rejected, they have been deemed unsupported by the weight of the evidence, irrelevant, immaterial, cumulative or subordinate.
CONCLUSIONS OF LAW
By DER rule, a permit applicant like Barber Woods "shall have the burden of establishing, by a preponderance of the evidence, entitlement to the requested license . Rule 17-1.59(1)(a), Florida Administrative Code. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). In the present case, DER's notice of intent to is sue the permit to Harbor Woods constitutes a waiver by DER of its right to put Harbor Woods to its proof in formal administrative proceedings. DER has examined the application and satisfied itself as to its sufficiency.
Third party objectors also have rights in DER licensing matters, however. Manasota-88, Inc. et al. v. Department of Environmental Regulation et al., No, AQ-480 (Fla. 1st DCA; Nov. 8, 1983). These rights are set forth with limpid precision by Judge Larry Smith in Florida Department of Transportation v.
J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981), when he writes:
[A]s a general proposition a party should be able to anticipate that when agency employees or officials having special knowledge or expertise
in the field accept data and information supplied by the applicant, the same
data and information, when properly identified and authenticated as accu- rate and reliable by agency or other witnesses, will be readily accepted
by the hearing officer, in the absence of evidence showing its inaccuracy or unreliability. We emphasize again, however, that once a formal hearing is requested, there is no "presumption of correctness" in the mere fact that in preliminary proceedings the Department
has issued its "notice of intent" to issue the permit that would relieve the applicant of carrying the "ultimate burden of persuasion." See General Development Corporation v. Florida Land and Water Regulatory Commission, supra; and O'Neil
v. Pallot, 257 So.2d 59 (Fla. 1st DCA 1972). Not every request for a formal Section 120.57(1) hearing may properly be
granted, for it is clear that the petitioner must first demonstrate by appropriate pleading that there are disputed issues
of fact requiring such a hearing. Blanchette
v. School Board of Leon County, 378 So.2d
68 (Fla. 1st DCA 1979), United States Service Industries--Florida v. Department of Health and Rehabilitative Services, 383 So.2d 728 (Fla. 1st DCA 1980). We totally agree with the sentiments expressed by amicus curiae Agrico that no third party, "merely by filing a petition," should be permitted to require the applicant
to "completely prove anew" all items in a permit application down to the last detail. The petitioner must identify the areas of controversy and allege a factual basis for the contention that the facts
relied upon by the applicant fall short of carrying the "reasonable assurances" burden cast upon the applicant. The "burden of proof" is upon the petitioner to go forward with evidence to prove the truth of the facts asserted in his petition. If the petitioner fails to present evidence, or fails to carry the burden of proof as to the controverted facts asserted--assuming that the applicant's preliminary showing before the hearing officer
warrants a finding of "reasonable assurances"-- then the permit must be approved. In making this preliminary showing of "reasonable assurances" before the hearing officer, the applicant is require to provide credible and credited evidence of his entitlement to the permit. This having been done, the
hearing officer would not be authorized
to deny the permit unless contrary evidence
of the equivalent quality is presented by the opponent of the permit. 396 So.2d at 789 (footnote omitted).
Although the possible issues in a compound licensing procedure of this kind, implicating both Chapters 253 and 403, Florida Statutes (1981) are legion, there is no need to address any issue not raised by the objectors' petition. As to any issue duly raised, however, the burden is on the license applicant and there is no "substantial weight . . . [to] be accorded agency findings [implicit in the notice of intent to grant]," as DER argues in its proposed recommended order. The notice of intent is entitled to no weight whatsoever on any issue properly raised by a third party entitled to do so.
QUESTIONS NOT DECIDED
At hearing for the first time the objectors questioned the legality of the proposed project on the grounds that the county commissioners of Brevard County had not approved construction of the island or extension of the lands proposed by Harbor Woods. Local governmental approval is required by Section 253.124(1), Florida Statutes (1981), whenever such activities are undertaken in navigable waters. Harbor Woods' contention that no county commission approval is required here, because the filling is to take place before the dike is to be breached, cannot be addressed here, consistent with the orderly procedure set out in the J.W.C. case. The objectors sought to interject this issue midway through the hearing, which was too late in the administrative process. If this issue is to be adjudicated it will have to be in a court of competent jurisdiction.
Similarly, the merits of the objectors' contention that the Department of Natural Resources has not consented to the use Harbor Woods proposes to make of sovereignty lands, as required by Section 253.77, Florida Statutes (1981), has not been reached, because the objectors failed to plead lack of consent in their petition for hearing. The attempt to raise this issue for the first time at hearing was untimely. Respondents claimed that they had obtained such consent but lacked evidence at the hearing because, they said, they were unaware the issue would be raised.
The objectors pleaded that the "[intent to issue the] permit has issued without advertising of public notice as required by Chapter 403.815 Florida Statutes." As persons who did receive actual notice and avail themselves of their right to institute formal administrative proceedings, petitioners are in no position to complain that they are substantially affected by any lack of newspaper publication. If the law requires such publication, it may be that a court will, on that ground, set aside any permit DER may issue Harbor Woods, on the complaint of a party or parties who did not receive actual notice of DER's intent to issue the permit, but no such party has appeared in these proceedings. These petitioners, who did have actual notice, cannot be heard to complain.
DREDGING AND FILLING
Implementing Sections 403.061(14), 403.087 and 403.088, Florida Statutes (1981), Rule 17-4.28(3), Florida Administrative Code, provides:
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.
The evidence established that water in the proposed basin will violate "the water quality criteria, standards, requirements and provisions of Chapter 17-3, Florida Administrative Code," at least short-term.
But this case is different from cases like Farrugia v. Frederick, 344 So.2d 921 (Fla. 1st DCA) where the evidence was "that there would be water quality degradation in the proposed dead-end upland canal and the construction would have an adverse effect on Class III waters." 344 So.2d at 922. (emphasis supplied) The evidence adduced in the present case was to the effect that the basin ringed with vegetation would have a beneficial, not an adverse, effect on the waters into which the basin would empty. The reason that the water in the basin cannot be expected to come up to Class III standards is because water flowing into it from outside is already polluted.
Because the project site is well outside the Banana River Aquatic Preserve, Rule 17-4.242, Florida Administrative Code, has no application here.
STORMWATER RUNOFF
The only "new" source of water entering Newfound Harbor would be stormwater runoff from the area upland of the dike. The evidence, which was uncontroverted, established that the runoff would meet Class III standards after running over grassy swales and through the sand and gravel filter. Although uncontroverted, the evidence was somewhat problematic: there was no quantitative information nor any firm basis for such information, inasmuch as the area of the parking lots, among other things, had not been decided upon.
The evidence was nevertheless persuasive that Class III standards would be met by the runoff, as required by Rule 17-25.04(4), Florida Administrative Code, if concrete block pavement is used for the parking lots.
That DER grant petitioner's application on the conditions proposed and on the additional condition that any parking lots over which draining water would eventually reach Newfound Harbor be paved with concrete block.
DONE and ENTERED this 10th day of November, 1983, in Tallahassee, Florida.
ROBERT T. BENTON, II
Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1983.
Dennis R. Erdley, Esquire Department of Environmental Regulation
Robert B. Sampson Post Office Box 431
c/o Robert B. Sampson Post Office Box 431
c/o Robert B. Sampson Post Office Box 431
