STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT BROWN, )

)

Petitioner, )

)

vs. ) Case No. 85-0517

) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with the Notice of Hearing furnished to the parties, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in West Palm Beach, Florida on October 28, 1986. The issue for consideration is whether the property forming the subject of this hearing, owned by the Petitioner, is exempt from the dredge and fill jurisdiction of the Respondent and if not, whether Petitioner is entitled to a dredge and fill permit to construct a house and boardwalk on the property.

APPEARANCES

Petitioner: Terrell K. Arline, Esquire

325-C Clematis Street

West Palm Beach, Florida 33401

Respondent: Karen A. Brodeen, Esquire

Douglas MacLaughlin, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

BACKGROUND INFORMATION

On or about July 19, 1984, Petitioner filed an application for a permit to construct a house on pilings on his property located contiguous to the Intra-coastal Waterway in Palm Beach County, Florida. On January 23, 1985, Respondent issued an intent to deny this application and thereafter, Petitioner submitted a request for formal administrative hearing. This

informal request was followed up with a proper petition filed on April 29, 1985.

The case was originally heard on September 10, 1985, before Hearing Officer Ella Jane Davis. Because of certain problems with the transcription of the record, a rehearing was ordered by Hearing Officer Davis which was scheduled for April 15, 1986.

Upon motion of the parties, that hearing was reset for October 28, 1986, but in the interim, new counsel for both sides came into the case. New counsel for Petitioner moved to disqualify Hearing Officer Davis. Prior to receipt of that motion and for other reasons unrelated thereto, the case was transferred to the undersigned who denied a subsequent motion for continuance and the hearing was held as scheduled on October 28, 1986.

At the hearing, Petitioner testified in his own behalf and presented the testimony of Renneth Hart, a surveyor; Edith Tattersall and George Pinder, long time residents of the immediate area in which Petitioner's property is located; Kenneth Roundtree, a forester with the State of Florida; Larry O'Donnel, the supervisor of the dredge and fill section in Respondent's West Palm Beach office and an expert on the impacts of dredge and fill operations, water quality, and Department rules and statutes; and Steven G. Swingle, an environmental specialist with the Palm Beach County Health Department. Petitioner also offered Petitioner's Exhibits 1 through 12.

Respondent presented the testimony of Janet Lewellyn, an environmental specialist with the agency, and John Poppell, a specialist in historical documentation for the agency, and offered Respondent's Exhibits A through K.

Subsequent to the hearing, both parties submitted proposed findings of fact. A ruling on each is contained in the Appendix attached hereto.

FINDINGS OF FACT

1. Petitioner, Robert Brown, is the co-owner of Lot 13 and the northern half of Lot 14, Block 7, Lake Addition to Boynton in Boynton Beach, Palm Beach County, Florida. The property consists of a parcel approximately 150 by 150 feet and is located along the western edge of the Intra-coastal Waterway at N.E. 8th Ave. and N.E. 7th Street in Boynton Beach.

   
   

2. At all times pertinent to the issues herein, Petitioner was the owner of this property which is vegetated along the Eastern half with mature mangrove trees which extend back from the water's edge approximately one half the depth of the lot.

   These mangroves include red, black, and white species and the larger are approximately between 18 and 22 years old. The majority of the trees, however, are younger than that. The Western half of the property is sparsely vegetated and in the heavily vegetated half, there is an open area approximately 30 by

   30 feet which appears to have been cleared and on which there are no mature mangrove trees.

   
   

3. On July 19, 1984, Petitioner filed an application for a permit to construct a 1625 square foot house on pilings together with a 164 by 4 foot boardwalk extending in a west to east direction from the westernmost edge of the mangrove community to the waterside of the proposed dwelling giving access thereto.

   
   

4. The eastern half of the property in question appears to be lower in elevation than the western half and experiences some tidal inundation during periods of high tide. Though there is a riprap deposit along the eastern edge of the property and two berms extending along the landward side of the riprap, water from the Intra-coastal Waterway periodically flows through the riprap, over the berms, and onto Petitioner's property. This water is afforded access onto the property also, by a northwest running ditch located south of the southern boundary of the property which ditch is connected to the waterway. It intersects with another ditch which runs due north to an intersection with an east-west depression, also connected to the Waterway, running along the northern boundary of the property. Mangroves of some size are found in and on the edges of this ditch.

   
   

5. Petitioner's construction proposal, involving the driving of supporting pilings for the dwelling, is a dredge and fill activity as defined by the Department of Environmental Regulation's (DER), experts and requires the issue of a dredge and fill permit.

   
   

6. There is a conflict between the Petitioner's evidence regarding the physical location of his proposed dwelling and boardwalk and that of the agency personnel who, with benefit of a survey, determined that the larger clearing referenced by the Petitioner does not lie on his property and that the indicated cleared cut through the mangrove community to the waterway on Petitioner's property for the walkway does not lie on Petitioner's property but instead is approximately 30 feet south of the southern boundary.

   
   

7. Having reviewed the application submitted by Petitioner, DER requested additional information regarding construction techniques and plans. These have not, to this date submitted in a tangible form the information requested. Petitioner's attorney provided some of the information requested orally to DER at some

   time in the past, giving some assurances that the disruption of water quality during construction would be kept at a minimum and would be only temporary.

   
   

8. However, since DER did not have available to it the additional information it requested so as to appropriately evaluate the true proposal by Petitioner and the effect of any modifications, based on the failure of Petitioner to provide adequate assurances that water quality standards would not be violated and that the project was not contrary to public interest as is required of him by Section 403.918, Florida Statutes, on January 23, 1985, the Department issued an intent to deny the permit. As a part of this intent to deny, the agency suggested that the project be relocated to the upland one-half of the Petitioner's property. Construction there would not have involved any mangrove disturbance and would have been consistent with the agency's standards and policies.

   
   

9. Historically the property owned by Mr. Brown did not border the open body of water which now constitutes Lake Worth or the Intra-coastal Waterway. As far back as 1872, the property was dry and supported no mangrove growth. Mangroves existing currently on the property have developed there since the construction of the Intra-coastal Waterway and its joinder with Lake Worth and the installation of the inlets which connect this water body with the Atlantic Ocean.

   
   

10. On the property directly north of Petitioner's boundary sits a house built on fill approximately one and a half feet above the gradient of Mr. Brown's lot. Immediately south of his property is a condominium building also located on fill bordering the Intra-coastal Waterway. Evaluation of photographs of the area reveals that both pieces appear to have been identical in make-up to that owned by Petitioner in both topography and vegetation prior to being filled for construction. In fact, this parcel lies in a rapidly developing commercial and residential area.

    
    

11. Petitioner also presented the testimony of two long time residents of the area who indicate that prior to the widening of the Intra-coastal Waterway, Petitioner's property did not border the open water of Lake Worth or the waterway. Back in the 1940's and before, the property was not covered with mangrove trees and was, in fact, used as farmland by Mr. Pinder, one of these two witnesses, who grew bell peppers and squash there. Mr. Pinder was hired by Palm Beach County during the 1940's and 1950's to dig mosquito control ditches on the property and Petitioner contends that it was these ditches which developed the connection with the Intra-coastal Waterway and thereby created a jurisdictional wetland. The weight of the evidence, however,

    indicates that though ditches were dug for mosquito control as described by Mr. Pinder and even before, it was not these ditches which changed the character of the property to jurisdictional wetland.

    
    

12. Review of the maps submitted by Mr. Brown shows to a very limited degree some reference to ditches on or near the property in question but neither this evidence nor the testimony of both long-time residents is sufficiently clear and convincing to establish to the satisfaction of the Hearing Officer that the character of Mr. Brown's property was so radically changed by the digging of these ditches as to become jurisdictional because of them.

    
    

13. Turning to the question of the impact of the proposed construction on the mangrove system, the evidence presented by the agency and to a lesser degree by Petitioner himself shows that there would be some adverse impact on the mangrove system through the direct destruction of some existing trees and saplings, the trimming of some of the overhanging mangrove canopy, and the subsequent shading of immature mangroves by the construction of the dwelling and the boardwalk. The evidence available indicates that the construction of the dwelling itself cannot be contained within the existing clearing and for the construction of the boardwalk, an additional cut and shading will be required.

    
    

14. Mangroves play an important part in the water quality and biological considerations of Section 403.918 Florida Statutes. The deterioration of fallen mangrove vegetation constitutes an important part in the food chain of fish and small invertebrates. Existing trees and roots provide habitat for various birds, invertebrates, mammals, and reptiles and the water quality considerations relating to the filtering of run-off water from uplands and the assimilation of pollutants in the passing water is significant.

    
    

15. DER was and is concerned that the proposed project does not provide reasonable or adequate assurances that water quality standards will not be violated. Turbidity, transparency, and dissolved oxygen standards may well be violated during the construction phase and the agency's concerns have not been addressed or lessened by Petitioner's unformed proposals for modification. The fourth standard, that involving biological integrity, will be a continuing and ongoing consideration due to the fact that the shading created by the house and boardwalk will be constant.

    
    

16. After full consideration of the application and those limited matters submitted in response to the agency's expression

    of concern, the agency has concluded that the project will adversely impact the conservation of fish and wildlife and their habitats in the area; will adversely affect fishing and recreational values and marine productivity; will adversely effect current and relative values of functions performed in the area; and will be of a permanent nature. The agency has not, however, quantified these negative effects or demonstrated that they will be of any significant magnitude. It is difficult to conceive that in an area already violated by the encroachment of civilization as demonstrated by the unrestrained fill both to the north and to the south of Petitioner's property, that the preservation of a relatively miniscule enclave, on highly valuable waterfront property, will have any substantial beneficial effect on the overall biological, ecological, or water quality considerations of the Intra-coastal Waterway, Lake Worth, or the Atlantic Ocean. The construction disruption will be minimal and for a limited period of time. The effects of shading will be of a longer duration but would appear to be miniscule in comparison to the surrounding area.

17. DER and its subordinate associate, the Palm Beach County Health Department, both recommend that the application be denied because of Petitioner's failure to provide reasonable assurances that the project will not violate water quality standards and will not be contrary to the public interest. The cumulative impact concerns of both DER and the Health Department are valid in theory but inappropriate here. Evidence that the recent mangrove destruction in this area has been been extensive cannot be debated. No doubt it has been. The fact remains, however, that this property is in a highly desirable location. The area has not been preserved by the State in its program for the accumulation and preservation of wetlands under a state umbrella and is of such a small size that the cumulative impact to be felt from the limited destruction of mangroves here would be minimal.

    
    

18. There is some evidence to indicate that a permit was issued to a previous owner of this property allowing the destruction of mangrove seedlings in the western section of the community and this action has not been undertaken. This permit has not expired and is transferable to Petitioner.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

20. DER has jurisdiction over the property in question here under two separate statutory provisions. Section 403.913(1),

    Florida Statutes, grants jurisdiction to the state where the activity involves dredging or filling in surface waters of the state. It is clear that the property here, which is periodically inundated by tidal exchange from the Intra-coastal Waterway is under the jurisdiction of the agency.

    
    

21. Section 403.913(3), Florida Statutes, and Rule 17-4.02,

    F.A.C. confers jurisdiction on the agency where the dominant vegetation on the property is mangroves. Here the evidence clearly shows that red, black and white mangroves are the predominant vegetation on at least the eastern portion of Petitioner's property.

    
    

22. These statutory provisions also require that the applicant provide reasonable assurances that the proposed construction will not violate water quality standards. Petitioner has not provided such assurance and in fact admits that the limited duration construction phase will, in fact, create at least a temporary diminishment of the water quality standards. Though Petitioner's counsel now attempts to provide some vague assurances that efforts will be made to minimize the unavoidable temporary disruption of the water quality by virtue of the dredging and filling operation, the fact remains that a technical violation will exist and cannot be totally obviated.

    
    

23. In addition, the statute requires Petitioner to provide some reasonable assurance that his project is not contrary to the public interest. The public interest can be considered here to be the conservation of fish and wildlife and their habitat, fishing, recreational values and marine productivity; and matters of a similar nature. Again, the evidence clearly shows that some adverse effect will exist and Petitioner has not tried to deny this. However, though Petitioner cannot show that his project will not be contrary to the public interest, and while the ultimate conclusion must be that there will be some damage to water quality, an inescapable conclusion also must be that this damage will be minimal even over the long run.

    
    

24. The agency claims that under the provisions of Section 403.919, Florida Statutes, it must consider the cumulative impact of the proposed project in relation to other projects and in so doing, must conclude that this project is unpermittable. Neither the effect on water quality standards or the biological concerns mentioned above can have any serious cumulative impact on the overall area in light of the ongoing and extensive development in the area. It is unfair and inappropriate that a small land owner should be precluded from developing his property when his neighbors have been permitted to do so with impunity and his is one of the last few small undeveloped parcels remaining. If the area here were virgin and Petitioner's application was among the

    first to break into a new area, then without question the concerns expressed by DER here would be reasonable and appropriate. However, in the instant case, where the property in the surrounding area is almost totally developed and the parcel in issue here is a small remaining undeveloped parcel, a strict reliance on the terms of a restrictive statute is unnecessary, unreasonable, and appears to be capricious.

    
    

25. Indeed, the agency has jurisdiction and has the authority to deny the permit. To do so, however, would appear to be an unwarranted, over-strict interpretation and application of the rules under the circumstances of this case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that the Department of Environmental Regulation issue permit number 5008992206 to the Petitioner, Robert 8rown for the construction of the house and walkway as proposed, under the provision of adequate and firm reasonable safeguards to minimize water quality disruption during construction by Petitioner.

RECOMMENDED this 11th day of February, 1987, at Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 llth day of February, 1987.

COPIES FURNISHED:

Dale Twachtmann, Secretary Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, FL 32301

Terrell K. Arline, Esquire 325-C Clematis Street West Palm Beach, FL 33401

Karen A. Brodeen, Esquire Douglas MacLaughlin, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, FL 32301

APPENDIX

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

By the Petitioner

1 Incorporated in Finding of Fact 1.

2. Incorporated in Findings of Fact 2 & 3.

3 & 4. Incorporated in Finding of Fact 4.

1. Incorporated in Finding of Fact 4.

2. Incorporated in Finding of Fact 10.

7 & 8. Incorporated in Findings of Fact 9 & 11

1. Incorporated in Finding of Fact 11.

2. Incorporated in Findings of Fact 3 6 13.

3. Accepted and incorporated in Findings of Fact 7 & 8.

4. Accepted and incorporated in Findings of Fact 7 & 8.

5. Not a Finding of Fact but a comment on the evidence.

By the Respondent

1. Incorporated in Finding of Fact 1.

2. Incorporated in Finding of Fact 3.

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL REGULATION

ROBERT BROWN,

Petitioner, DOAH CASE NO. 85-0517 OGC FILE NO. 85-0122

vs.

STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION

Respondent.

/

FINAL ORDER

On February 11, 1987, the Division of Administrative Hearings hearing officer in the above-referenced case submitted his Recommended Order to me and to all parties. A copy of the Recommended Order is attached as Exhibit A. In accordance with Florida Administrative Code Rule 17-103.200, Respondent, State of Florida Department of Environmental Regulation (Department), filed exceptions to the Recommended Order, numbered 1 through 5, a copy of which are attached as Exhibit B. No other exceptions have been filed in this case, nor has any response to exceptions been filed. The Recommended Order thereafter came before me as Secretary of the agency for final agency action.

BACKGROUND

This proceeding involved the application of Petitioner, Robert Brown, for a dredge and fill permit to construct a house and boardwalk on pilings on a lot owned by him in Palm Beach County, Florida. The lot is located contiguous to the Intracoastal Waterway, and a portion of the lot is within the landward extent of waters of the state. Petitioner filed the application on July 19, 1984. On January 23, 1985, Respondent issued an intent to deny this application and Petitioner filed a petition for administrative hearing pursuant to Section 120.57(1), Florida Statutes. The petition disputed whether the project would have significant long term and short term adverse impacts on water quality and biological resources of the Intra- coastal Waterway and whether the construction would cause an adverse impact on the mangroves at the site. A hearing was held on October 28, 1986. At the hearing, Petitioner presented evidence seeking a determination that his lot was exempt from the department's permitting authority pursuant to Section 403.817(2), Florida Statutes. Petitioner claimed that the lot on which he wished to build the structures was not within the landward extent of waters of the state because the occurrence of vegetation used to establish the Department's permitting jurisdiction was due solely to the construction of mosquito ditches in and adjacent to his lot.

In his Recommended Order, the hearing officer concluded that the mosquito ditch exemption contained in Section 403.817(2), Florida Statutes, was not applicable to Petitioner's property and thus that the Department had permitting jurisdiction in this case. The hearing officer also found that the project as proposed would violate the water quality criteria pursuant to Section 403.918(1), Florida Statutes, and failed to meet the public interest test pursuant to Section 403.918(2)(a), Florida Statutes. Nevertheless, the hearing officer recommended that these violations be considered "technical" in nature and that the

permit should be issued.

PRELIMINARY MATTERS

Before I rule on the Department's exceptions, there is one issue that although not specifically raised in the exceptions, is a fundamental consideration in this case. Because it bears on some of the issues raised in the exceptions, I am discussing it before I respond to them. A review of the record of the hearing reveals that Petitioner presented no evidence at the hearing on the issue of his entitlement to the permit. It is the applicant's burden to come forward with evidence establishing that he has provided reasonable assurances that water quality standards will be met and that the project is not contrary to the public interest. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). The testimony presented by the Petitioner at the hearing related solely to his contention that he was entitled to be exempt under the "mosquito ditch exemption" in Section 403.817(2), Florida Statutes. His Proposed Recommended Order contained proposed findings of fact on that issue alone. Therefore, the only evidence presented by Petitioner in support of the application was the permit application itself. (Petitioner's Exhibit No. 1.)

The exhibit was introduced without any further elaboration during the testimony of Petitioner's surveyor Kenneth Otis Hart. (transcript, p. 22.) The only apparent use of the exhibit was to establish a description of and the location of the proposed project. Neither Mr. Hart nor any other witness presented by Petitioner came forward with any testimony or other evidence that the project would meet water quality standards or that the project would not be contrary to the public interest. Therefore, Petitioner did not meet his burden of proof of coming forward with such evidence. Such failure constitutes grounds independent of the Department's evidence for denial of the permit. The administrative hearing process under Section 120.57(1), Florida Statutes is a de novo proceeding requiring that all necessary facts in support of a claim be established during the hearing.

J.W.C. Company, Inc. at 785. I am not ruling that a permit

application is never evidence of provision of reasonable assurances. However, some attempt to relate the contents of the application to the issues in the hearing must be made to establish at least a prima facie showing of entitlement to a permit. In his Finding of Fact Number 16, the hearing officer appears to place the burden of proof on the agency. It clearly is not the agency's responsibility to demonstrate that impacts of the proposed project are of such a magnitude that denial is necessary. It is rather the applicant's burden to show that he has given reasonable assurances that the project meets the statutory criteria for issuance of a permit. I note that the

hearing officer states the burden appropriately in his conclusions of law. (Recommended Order p. 9.)

RULINGS ON EXCEPTIONS

Department's Exceptions

In its first exception, the Department notes that the testimony of Larry O'Donnell and Stephen Swingle was offered by the Department and not by Petitioner. I find that the record of the hearing supports this exception and although it does not affect the ultimate disposition of this case, I accept the Department's first exception.

The Department's second exception relates to the hearing officer's Finding of Fact Number 17 in which the hearing officer states "[t]he area has not been preserved by the State in its program for the accumulation and preservation of wetlands under a state umbrella . . . ." The Department argues that no evidence was presented that such a program exists or that inclusion in such a program would be necessary for raising concerns about cumulative impact. I agree with the Department that the issue of a state preservation program aside from regulation under the Henderson Wetlands Protection Act was never raised at the hearing and that therefore there is no competent substantial evidence to support that portion of Finding of Fact Number 17. I therefore accept the Department's exception and reject the quoted portion of Finding of Fact Number 17. No exception was raised to the remainder of Finding of Fact Number 17 and the remainder of that Finding of Fact is accepted. I would note however, that if by the statement quoted above the hearing officer intended to say that the Henderson Wetlands Protection Act was not adopted with the intent of protecting all of the state's wetlands that are within the landward extent of waters of the state as defined by Section 403.817, Florida Statutes, I reject the finding on that basis as well.

The Department's exceptions numbered 3, 4, & 5 are to the hearing officer's conclusions of law. Exception Number 3 references the hearing officer's conclusion that Petitioner has not provided reasonable assurances that water quality standards will not be violated. (Recommended Order, p. 19.) The Department does not dispute this conclusion. Rather in its argument on the exception the Department disputes the hearing officer's further conclusion that the violation is a technical one and that therefore the violations should not prevent issuance of a permit. The Department argues that there is no statutory distinction between a "technical violation" and other water quality violations.

The Department has never recognized a distinction between "technical" and other water quality violations, and there is no support for such a distinction presented in this case. The

evidence clearly supports the finding that several water quality standards will be violated temporarily, and at least one will be permanently violated by the proposed project. As noted above, Petitioner presented no evidence at the hearing to contest the Department's testimony on this point. However, the real import of the hearing officer's conclusion that the violation was "technical" is his later implied conclusion that a "technical" violation can be overlooked in the issuance of a permit. No such authority to disregard water quality impacts appears in the statutes. On the contrary, Section 403.918(1), Florida Statutes, states in part: "[a] permit may not be issued under ss. 403.91- 403.929 unless the applicant provides the Department with reasonable assurance that water quality standards will not be violated." This is based on the fact that water quality standards are based on the minimum standards necessary to protect the designated uses of waters of the state and any violation of standards can impair such designated use. Clearly, it is beyond the Department's jurisdiction to issue a dredge and fill permit unless such reasonable assurances have been provided. Therefore, the Department's exception Number 3 is accepted and any conclusion of law regarding the existence of "technical" water quality violations that may be permitted by the Department is rejected.

In holding that a permit may not be issued where water quality violations will occur, I distinguish, however, between what the hearing officer has termed a "technical violation" which is not recognized, and a situation where the impact of a particular activity on water quality is found to be "negligible. The Department has previously interpreted its authority as allowing it to issue a permit for an activity where the impacts to the receiving body of water are negligible. This position was affirmed in Caloosa Property Owners' Association v. Department of Environmental Regulation, 462 So. 2d 523 (Fla. 1st DCA 1985). To be considered a negligible violation, however, the applicant must demonstrate that his discharge would not cause a water quality violation nor exacerbate an existing violation even though theoretically it will contribute a potential pollutant. Pacetti v. Department of Environmental Regulation, 8 FALR 4050 (Entered April 18, 1986). No evidence was presented in this case that could lead to a finding that the water quality impacts of the proposed project would be negligible. Nor was any evidence presented, or any explanation by the hearing officer given, as to what in fact constitutes a "technical" violation. Because the hearing officer did find that the project as proposed would cause water quality violations, those violations, though termed "technical" by the hearing officer, are not negligible and therefore are sufficient to require denial of the permit application.

The Department's exception Number 4 cites the hearing officer's conclusion of law that the "Petitioner cannot show that his project will not be contrary to the public interest. The Department objects to the hearing officer's further conclusion that despite that characterization, the permit should be issued. As with the section cited above on water quality standards, the statutory direction with regard to the public as interest test is clear. Section 403.918(2)(a), Florida Statutes, states in part: "la] permit may not be issued under ss. 403.91-403.929 unless the applicant provides the department with reasonable assurance that the project is not contrary to the public interest." There is no provision in that subsection for issuance of a permit where the public interest test is not met. The hearing officer also states in the same sentence that "[although] there will be some damage to water quality, an inescapable conclusion also must be that this damage will be minimal even over the long run."

(Recommended Order, p. 9.) This statement confuses the water

quality test in Section 403.918(1), Florida Statutes, with the public interest test in Section 403.918(2)(a), Florida Statutes. These two tests are separate and independent. Both must be met prior to issuance of a permit. Therefore, the Department's exception is accepted for the proposition that a permit cannot issue for a project that is found to be contrary to the public interest and the conclusion of the hearing officer to the contrary is rejected. Furthermore, as I pointed out above, water quality is not part of the public interest test. Therefore, to the extent that the hearing officer implied that an analysis of water quality impacts may be included as part of the public interest test, the hearing officer's conclusion is rejected on that basis as well.

I note that the statute allows for mitigation of adverse impacts where the project is otherwise unable to meet the public interest criteria. No evidence regarding mitigation proposals for this project was presented by either the applicant or the Department at this hearing. Therefore, although some consideration of such proposals may have been allowable, I make no findings with regard to that at this time.

The Department's final exception (Number 5) objects to the hearing officer's conclusions on the cumulative impact analysis on the proposed project. The Department operates under a statutory mandate in Section 403.919, Florida Statutes, to consider cumulative impacts of dredge and fill projects. This consideration extends to both the project under review and to previously constructed projects.

Before responding to the exception to the hearing officer's apparent conclusion that the application of a cumulative impact analysis is unnecessary, unreasonable and appears to be

capricious, I want to note that because the proposed project was found to not meet water quality standards or the public interest test, a permit must be denied without regard to the application or not of a cumulative impact analysis.

In discussing the hearing officer's conclusion that the analysis is unnecessary, unreasonable and appears to be capricious, I note that the consideration of cumulative impacts is not discretionary with the Department. Section 403.919, Florida Statutes, directs that such impacts shall be considered. However, as basis for denial, the Department does have some degree of discretion in analyzing cumulative impacts in that such impacts go to the weight to be given in the weighing of the seven factors in the public interest test. For example, extensive loss of habitat in an area may lead to a determination that any additional loss of habitat will have a greater adverse effect, on balance, than a loss of similar a real extent of habitat where there is abundant habitat of the same type.

The consideration of cumulative impacts in this case, however, is of a different sort. The only mention of cumulative impacts at the hearing came during the testimony of the Department's witness, Larry O'Donnell. Mr. O'Donnell testified that there was a currently existing dredge and fill permit for the property that had been obtained by the previous owner (testimony of Larry O'Donnell, transcript, pp. 300-303.) Mr.

O'Donnell testified that in reviewing the proposed project he had given some consideration to the fact that the extant permit, although not ever used, had not expired and therefore the dredge and fill activities authorized by that permit could still be done by the current owner of the property, the Petitioner in this case. (testimony of Larry O'Donnell, transcript 321-322.) The impacts of other permitted activities on the same property is a valid permitting consideration.

The only relevant finding of fact made by the hearing officer on this point is Finding of Fact Number 16, which states in part: "[t]he cumulative impact concerns of both DER and the Health Department are valid in theory but inappropriate here."

He goes on to cite the extensive mangrove destruction in the area as support for his finding that the cumulative impact concerns are inappropriate. No evidence was presented at the hearing that the cumulative prior impacts of mangrove destruction in the general area were considered in the determination by the Department that the project was not permittable. Therefore, Finding of Fact Number 16 is rejected insofar as it refers to loss of habitat outside of the lot owned by Petitioner because it is not supported by competent, substantial evidence. Finding of Fact Number 16 also implies that it is the Department's burden to demonstrate a lack of cumulative impacts. As with other factors,

the applicant must shoulder the burden of giving reasonable assurances that cumulative impacts do not cause a project to be contrary to the public interest, and that such impacts will not result in water quality violations. This finding is rejected insofar as it states or implies that such burden is on the Department. J.W.C. Company, Inc., at 785.

As I mentioned above, the consideration of the cumulative impacts of other existing valid permits that would affect the same property is a proper permitting concern of the Department. The applicant, if he chose to do so, could remove this potential impacts from consideration by voluntarily abandoning the previously issued [permit. I agree with the Department that the cumulative impact and other considerations used in determining that the project was not permittable are neither unnecessary, unreasonable nor capricious. Therefore the hearing officer's conclusion of law on that point is rejected.

Accordingly, having considered the record and pleadings in this matter it is,

ORDERED THAT:

1. The hearing officer's findings of fact and conclusions of law are adopted except as they have been rejected or modified herein.

   
   

2. Robert Brown's application for a dredge and fill permit in accordance with the Notice of Intent executed by the Department is hereby DENIED.

Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Clerk of the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within thirty (30) days from the date this Order is filed with the Clerk of the Department.

DONE and ENTERED this 27th day of March, 1987.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

JOHN S. SHEARER

Assistant Secretary

Twin Towers Office Building Date 2600 Blair Stone Road Tallahassee, Florida 32399-2400

Telephone: (904) 488-4805

FILING AND ACKNOWLEDGEMENT

FILED, on this date, pursuant to S120.52, Florida Statutes, with the designated Department Clerk, Receipt of which is hereby acknowledged.

C. Hutchinson 3-27-87

Clerk Date

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the original and one true and correct

copy of the foregoing has been sent by hand delivery to Arnold H. Pollock, Hearing Officer, Division of Administrative Hearings, The Oakland Building, 2009 Apalachee Parkway, Tallahassee, Florida, 32301; a true and correct copy by hand delivery to Karen

A. Brodeen, Esquire, Department of Environmental Regulation, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and a true and correct copy by U.S. Mail to Terreli R. Arline, Esquire, 325-C Clematis Street, West Palm Beach, Florida 33401, this 30th day of March, 1987.

CAROL A. FORTHMAN

Deputy General Counsel

STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

Telephone: (904) 488-9730

Docket for Case No: 85-000517

Orders for Case No: 85-000517