STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALMETTO POINT HOMEOWNERS )

ASSOCIATION, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3488

) 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 final hearing in this cause on January 6, 1984, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Segundo J. Fernandez, Esquire

646 Lewis State Bank Building Tallahassee, Florida 32301

For Respondent: Douglas H. MacLaughlin, Esquire

Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

The issue in this cause is whether Petitioner, Palmetto Point Homeowners Association ("Petitioner"), is entitled to the issuance of a default permit on its application for dredge and fill permit under the provisions of Sections

1. and 403.0876, Florida Statutes. Respondent has proposed to deny Petitioner's request for issuance of a default permit.

   
   

   Final hearing in this cause was scheduled for January 6, 1984, by Notice of Hearing dated November 30, 1983. At the final hearing, Petitioner offered Petitioner's Exhibits 1 through 24, which were received into evidence.

   Respondent offered Respondent's Exhibit 1, which was likewise 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 of fact 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

   
   

   1. On December 9, 1982, Petitioner filed with Respondent a dredge and fill permit application to remove gates and wing-walls from a double-lock canal system presently installed at the Palmetto Point Subdivision in Lee County, Florida, adjacent to the Caloosahatchee River.

      
      

   2. On January 6, 1983, Respondent sent a "completeness summary" to Petitioner, along with a letter advising Petitioner that its permit application was incomplete, and requesting additional information. Petitioner responded to the January 6, 1983, completeness summary by submitting additional information to Respondent on or about February 23, 1983.

      
      

   3. On March 21, 1983, Respondent sent a second completeness summary requesting further additional information from Petitioner.

      
      

   4. By letter dated May 18, 1983, Petitioner's attorney advised Respondent that submission of additional requested hydrographic information and water quality data was not justified. The letter further advised that Petitioner intended to rely on the information already submitted, and requested, pursuant to Section 403.0876, Florida Statutes, that Respondent begin processing the permit application. The letter further indicated that petitioner was submitting under separate cover a request that Respondent apply the "moderating provisions" of Rule 17-4.244, Florida Administrative Code, to the application. The aforementioned rule is entitled "Mixing Zones: Surface Waters."

      
      

   5. Also on May 18, 1983, Petitioner's counsel sent another letter to Respondent requesting the aforementioned "Mixing Zone." The letter requested the "maximum mixing zone" allowed under the applicable Provisions of Rule 17- 4.244, Florida Administrative Code. Petitioner had not requested a mixing zone be applied to the permit application prior to the request contained in its May 18, 1983, letter.

      
      

   6. By letter dated June 17, 1983 Respondent, in response to Petitioner's May 18, 1983, letters, advised that:

      
      

      The additional information [which] was received on May 19, 1983, was reviewed; however, the items listed on the attached sheet remain incomplete. Evaluation of your proposed project will continue to be delayed until we receive all requested information.

      
      

      Respondent's June 17, 1983, letter included a completeness summary, which asked for additional information, including the following requests concerning mixing zones:

      
      

      Your request for a mixing zone is applicable pursuant to F.A.C. Rule 17-4.244(6). Please provide a map indicating the outermost radius of the mixing zone (no more than 150 meters) and the period of time required.

      
      

      The completeness summary acknowledged Petitioner's refusal to supply additional information concerning hydrographic data and water quality information, and indicated that Respondent would evaluate the project accordingly.

   7. By letter dated August 29, 1983, Respondent advised Petitioner that it had been 73 days since notification of the incompleteness of the permit application with regard to the mixing zone request. This letter requested Petitioner to advise Respondent if it wished to withdraw the application, request additional time, or discuss questions regarding the application. The Petitioner did not respond to this communication.

      
      

   8. On September 9, 1983, Petitioner's attorney forwarded a letter to Respondent requesting a default permit pursuant to Sections 120.60(2) and 403.0876, Florida Statutes. Until this letter, other than a prior oral communication on September 2, 1983, notifying Respondent that the default request was forthcoming, Petitioner had not contacted Respondent concerning the permit application since its May 18, 1983, letters. On October 13, 1983, Respondent advised Petitioner by letter that the mixing zone request constituted a revision of the application and that the information received to evaluate the mixing zone request was incomplete. Petitioner was also advised that since the additional information requested had not been received, the application remained incomplete and Petitioner was not entitled to a default permit.

      
      

   9. Whether or not a mixing zone is applied to a permit application is significant because it determines where state water quality standards must be met, either adjacent to the proposed project, or up to 150 meters away from the project location. Under Rule 17-4.244(6), Florida Administrative Code, the 150 meter radius is measured from the point of generation of turbidity or pollution. Since the two locks to be removed were 80 feet apart, it was unclear whether Petitioner intended the point of generation for measuring the radius of the mixing zone to be the northern lock, the southern lock, or some other point. It is equally unclear whether Petitioner intended the mixing zone to extend south into the canal as well as north into the Caloosahatchee River. Petitioner never contacted Respondent to clarify the dimensions of the mixing zone being sought, even after Respondent requested a map indicating the outermost limits of the mixing zone in the June 17, 1983, completeness summary.

      
      

      CONCLUSIONS OF LAW

      
      

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

       
       

   11. Section 120.60(2), Florida Statutes, provides, in part, as follows:

       
       

       When an application for a license is made as required by law, the agency shall conduct the proceedings required with reasonable dispatch and with due regard to the rights and privileges of all affected parties or aggrieved persons. Within 30 days after receipt of an application for a license, the agency shall examine the application, notify the applicant of any apparent errors or omissions, and request any additional information the agency is permitted by law to require. . . Every application for license shall be approved or denied within 90 days after receipt of the original application or receipt of the timely requested additional information or correction of errors or

       omissions unless a shorter period of time for agency action is provided by law. . . Any application for a license not approved or denied within the 90-day or shorter time

       period . . . shall be deemed approved and . . . the license shall be issued. . .

       
       

   12. Section 403.0876, Florida Statutes, provides as follows:

       
       

       Within 30 days after receipt of an application for a permit under this chapter, the department shall review the application and shall request submittal of all additional information the department is permitted by law to require. If the applicant believes any departmental request for additional information is not authorized by law or departmental rule, the applicant may request a hearing pursuant to s. 120.57. Within 30 days after receipt of such additional information, the department shall review it and may request only that information needed to clarify such additional information or to answer new questions raised by or directly related to such additional information. If the applicant believes the request of the department for such additional information is not authorized by law or departmental rule, the department, at the applicant's request shall proceed to process the permit application. The permit shall be approved or denied within 90 days after receipt of the original application, the last item of timely requested additional material, or the applicant's written request to begin processing the permit application.

       
       

   13. Rule 17-4.244(6), Florida Administrative Code, provides, in part, as follows:

       
       

       Mixing zones for dredge and fill permits shall

       . . . [meet] applicable water quality standards . . . at the boundary and outside the mixing zone.

       1. The dimensions of dredge and fill mixing zones shall be proposed by the applicant and approved, modified or denied by the Department.

       2. Criteria for departmental evaluation of a proposed mixing zone shall include site- specific biological and hydrographic considerations.

       3. In no case, however, shall the boundary of a dredge and fill mixing zone be more than 150 meters downstream in flowing streams or 150 meters in radius in other bodies of water,

          where these distances are measured from the cutterhead, return flow, discharge, or other

          points of generation of turbidity or other pollutants.

          
          

   14. It is specifically concluded, as a matter of law, that notwithstanding its invocation of Section 403.0876 in its May 18, 1983, letter, Petitioner materially altered its permit application by requesting that a mixing zone be established for the proposed project in another letter delivered on May 18, 1983. As a result, Respondent was clearly entitled to request additional information on the mixing zone request pursuant to Rule 17-4.244(6), Florida Administrative Code. Further, Respondent was clearly entitled to refuse to process the permit application further when Petitioner failed to either furnish the additional information or challenge the necessity to do so under applicable provisions of Section 403.0876, Florida Statutes. Clearly, Petitioner was not entitled under the facts of this case to simply stand silent in the face of Respondent's request for additional information until the passage of 90 days and then insist upon the issuance of a default permit.

Accordingly, based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That a Final Order be entered by the State of Florida, Department of Environmental Regulation, denying Petitioner's request for the issuance of a default permit.

DONE AND ENTERED this 12th day of March, 1984, at Tallahassee, Florida.

WILLIAM E. WILLIAMS

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1984.

COPIES FURNISHED:

Segundo J. Fernandez, Esquire 646 Lewis State Bank Building Tallahassee, Florida 32301

Douglas H. MacLaughlin, 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

Docket for Case No: 83-003488

Orders for Case No: 83-003488