STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEAGUE OF WOMEN VOTERS OF ) CLEARWATER - UPPER PINELLAS ) COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 85-2755

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION and FAIRFIELD ) COMMUNITIES, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on October 29 and 30, 1985, in Clearwater, Florida. The issue for determination in this proceeding is whether the Respondent Fairfield Communities, Inc. is entitled to a dredge and fill permit for its project in connection with Riverside Landing, located in Pinellas County.

APPEARANCES

For Petitioner: William W. Deane

Hanley and Deane, P.A.

465 Second Avenue North Post Office Box 7473

St. Petersburg, Florida 33734

For Respondent: Julia D. Cobb, Department of Deborah Getzoff and Environmental Richard Tucker Regulation 2600 Blairstone Road

Tallahassee, Florida 32301

For Respondent: Terry E. Lewis and Fairfields Steve Lewis

Communities, Messer, Vickers, Caparello,

Inc. French & Madsen Post Office Box 1876

Tallahassee, Florida 32302

INTRODUCTION

On July 23, 1985, the Respondent Department of Environmental Regulation (DER) gave notice of its intent to issue a dredge and fill permit to Respondent Fairfield Communities, Inc. as applied for in DER File No. 520916913. By a document filed on August 8, 1985, and referencing DER File No.

520916913, the League of Women Voters of Clearwater - Upper Pinellas County requested a formal hearing pursuant to Section 120.57, Florida Statutes, and requested to intervene in the licensing process pursuant to Section 403.412(5), Florida Statutes.

At the hearing, the Respondent Fairfield presented the testimony of Gerald P. Goulish, accepted as an expert in the fields of civil engineering and surface hydraulic engineering; Ross McWilliams, accepted as an expert in the areas of water quality, marine biology and navigation as it relates to dredge and fill activity; Roy Robert Lewis, accepted as an expert in the fields of biology, marine biology and wetland mitigation; and Archibald W. McLean, Fairfield's Operation Manager for Point Alexis. Fairfield's Exhibits 1-11, 13-18, 20 and 21 were received into evidence.

Testifying on behalf of the DER were Nancy Zyski, accepted as an expert regarding the impacts of dredge and fill projects upon water quality and wetland eco-systems, and Lawrence L. Devroy.

Petitioner presented the testimony of Mary Lou Dobbs, petitioner's President; Jane Hammer, Petitioner's Chairperson of Natural Resources; Bernard Yokel, accepted as an expert in the. field of estuarine ecology; and Lawrence L. Devroy, accepted as an expert in the areas of marine biology and water quality.

Petitioner's Exhibits 1 through 7 were received into evidence.

Howard Cooper testified as a member of the general public and three letters from members of the general public were received into evidence. In addition, Hearing Officer's Exhibits

1 through 3 were received into evidence.

Subsequent to the hearing, counsel for the Petitioner and the Respondent Fairfield filed proposed recommended orders. The Respondent DER simply stated its agreement with the proposals filed by Respondent Fairfield except as to the issue of standing. The parties' proposed findings of fact have been

carefully reviewed and, except as noted in the Appendix attached hereto, they are accepted and/or incorporated herein.

FINDINGS OF FACT_

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. Fairfield Communities, Inc. is a corporation authorized to transact business in the State of Florida. Its Florida business is operated under the fictitious name of Fairfield Florida Companies. In December of 1983, the Respondent Fairfield received approval of its application for a development of regional impact for two residential developments known as Harbour Watch and Riverside Landing. Subsequently, amended site plans for these two developments were submitted and the Development Order was amended to make it consistent with the amended plans. This occurred by Resolution 85-32, passed and adopted on March 19, 1985, which resolution specifically found that the amended site plans did not constitute a substantial deviation requiring further review. By letter dated October 18, 1984, Respondent Fairfield notified DER that it had received a Development Order on December 14, 1983 for its two residential projects. Pursuant to Section 403.913(6), Florida Statutes, Fairfield requested an exemption from the expanded dredge and fill jurisdictional and permitting criteria of the Warren S. Henderson Wetlands Protection Act of 1984. The DER recognized that Fairfield was entitled to the requested exemption by letter dated September 12, 1985.

   
   

2. The residential developments known as Riverside Landing and Harbour Watch comprise a 180-acre area known locally as Point Alexis in Pinellas County. While the two 90-acre areas are adjacent, they are not contiguous. By letter dated November 2, 1984, the DER informed Fairfield that the area comprising the Harbour Watch project was not within the dredge and fill jurisdiction of the State.

   
   

3. In August of 1984, Fairfield applied to the DER for a dredge and fill permit in connection with its Riverside Landing residential development. The application was revised in June of 1985. Riverside Landing, located in Tarpon Springs, is to contain 295 residential units on 90 acres of land, of which some

   67 acres will be open space and 23 acres will be impervious surface. The site is an abandoned golf course which was constructed in the 1920's. The site includes Lake Avoca, a privately-owned artificially created lake, which is located

   adjacent to St. Joseph Sound. St. Joseph Sound, a Class III water body, is adjacent to the Pinellas County Aquatic Preserve, a designated Outstanding Florida Water. Lake Avoca is not included within the Aquatic Preserve.

   
   

4. As modified, the proposed project involves the filling of approximately 2.1 acres of high marsh within and adjacent to Lake Avoca and, as mitigation for the filled areas, the dredging or scraping of approximately 2.1 acres to create a new Spartina low intertidal marsh. The dredging and planting of Spartina will be performed in the mitigation areas prior to the filling of the existing wetland areas. The marshes to be filled will be utilized for retention areas, building paths, roads and parking areas. The stormwater system for the entire Riverside Landing site is designed to retain one to one and a half inches of runoff. The drainage plans were reviewed by the DER and it was determined that a stormwater permit would not be required.

   
   

5. The areas proposed for filling are infrequently inundated, non-navigable high marsh areas. They are mainly drainage ditches which do not receive regular tidal exchange and are of moderate to no value to marine or estuarine organisms. These areas currently serve primarily as a habitat for weeds and exotics, such as Brazilian pepper, and there are some saltern areas. A high marsh is typically a fairly harsh habitat characterized by a low diversity of plants and animals. During the filling operation, turbidity will be controlled by plugging the ditches at low tide with hay bales and using turbidity screens.

   
   

6. The mitigation sites are presently either natural upland areas, such as pine flat woods, or areas where spoil has been placed as part of mosquito control operations. The 2.1 acres will be scraped down to wetland elevations at which smooth cord grass, or Spartina, presently occurs - approximately -1 mean sea level. The dredging work will be performed with a dragline during periods of low tide, and turbidity will be controlled by the use of turbidity screens and hay bales. The areas dredged will then be planted with bay root sprigs of Spartina at three-foot centers, or about 5,000 units per acre. Spartina tends to stabilize the soil and provides a stable area for the sprouting of seeds of other varieties, such as black mangroves. The restoration design will increase the extent of the mangroves, and this diversity of planted species will result in an increase of animal species diversity. One of the new marsh areas to be created does involve the removal of a berm or spoil bank, and work in that area will likely result in the damage or

   loss of some mangroves presently growing along the sides of the berm.

   
   

7. Roy R. Lewis, the consulting biologist who devised and will perform the proposed mitigation plan for Fairfield, has guaranteed an 80% survival of Spartina at the end of two years, and is able and willing to extend this same guarantee to a period of five years. Based upon success with similar projects in the past, the chances of success with this mitigation plan are excellent. Water quality and fish and wildlife benefits will occur almost immediately after the mitigation area is dredged and planted, and the area will be a viable Spartina marsh within 24 months. Spoil material from the dredged areas will be taken to an upland area and contained on-site. The excavated material is estimated to be about 8,500 cubic yards. Areas immediately adjacent to the mitigation sites will be sodded to control erosion.

   
   

8. The short-and long-term impacts of filling 2.1 acres of relatively unproductive high marsh are minimal. The 2.1 acres to be dredged in mitigation for the filled areas will be equal in aerial extent and superior in terms of biological value and water quality. The creation of an intertidal community adjacent to tidal waters will promote the flushing of pollutants on a regular basis and will be beneficial to the water quality of Lake Avoca, while producing no adverse effects upon the waters of St. Joseph's Sound. Fish and wildlife aspects in the area will be enhanced by the creation of 2.1 acres of a shallow intertidal area subject to daily inundation. The mitigated areas will not replicate the areas to be filled. For example, the newly created wetlands will provide a different "timing" effect in the form of a daily flushing as opposed to seasonal surges. However, the overall impact of exchanging the high marsh area for the shallow intertidal areas will be beneficial in terms of water quality and biological values. Also, the sloped areas which will border the scraped mitigated areas will provide a transitional zone for higher marsh species. This additional area to be created will total about one-third additional acre.

   
   

9. The DER has no rule setting forth an appropriate ratio between the extent of mitigated area and the extent of filled area. Rather, when reviewing permit applications on a case-by- case basis, the DER considers the types of wetlands to be eliminated and to be created, the overall condition of the existing area and who is responsible for the mitigation work. The DER is familiar with Mr. Lewis' work on other wetland

   mitigation projects, trusts his judgment and is confident that he will correct any problems that may arise.

   
   

10. The Petitioner, League of Women Voters of Clearwater - Upper Pinellas County, is an unincorporated organization with approximately 250 members. It belongs to and is an integral part of the national and the Florida League of Women Voters. The Petitioner's bylaws authorize it to actively participate in governmental issues and acts, and the bylaws have been approved by the Florida League of Women Voters. The Petitioner's Board of Directors made the decision to file the instant petition requesting intervention in this licensing proceeding and requesting an administrative hearing. The unverified petition filed with the DER and transmitted to the Division of Administrative Hearings was signed by Jane R. Hammer, Natural Resources Committee Chairperson. While the Florida League was informed of the pendency of this proceeding, no formal or official action was taken by them with respect to this case.

    
    

11. Jane Hammer lives south of the Riverside Landing project and utilizes the waters of St. Joseph's Sound and Lake Avoca for swimming, boating, fishing activities and bird watching. The Petitioner presented no evidence as to how many other members of its organization live near or utilize the immediate area of this proposed project.

    
    

    CONCLUSIONS OF LAW

    
    

12. In addition to the main issue of whether the applicant Fairfield has provided the DER with reasonable assurances that its proposed project will meet the statutory and regulatory criteria, the parties have raised several other issues in this proceeding. The first issue is whether the Petitioner has standing to institute this proceeding, either pursuant to Section 120.57(1) or 403.412(5), Florida Statutes. The second issue is whether the DER's jurisdictional determination regarding activity within the Respondent Fairfield's residential development known as Harbour Watch is subject to challenge in this proceeding. And, the remaining issue is whether this permit application should be reviewed under criteria and standards as they existed prior to January 24, 1984, or under the expanded criteria contained in the Warren S. Henderson Wetlands Protection Act of 1984, Sections 403.91-403.929, Florida Statutes, and Chapter 17-12, Florida Administrative Code.

    
    

13. The petition filed by the League of Women Voters of

    Clearwater - Upper Pinellas County cites both Sections 120.57(1) and 403.412(5), Florida Statutes. These sections contain different standing and procedural requirements. Under Section 120.57, the "substantial interests" of a party must be determined by an agency. In order for an association to demonstrate standing, it must produce evidence that a substantial number of its members would be affected by the proposed agency action. Florida Home Builders' Association vs. Department of Labor, 412 So. 2d 351 Fla. 1982); Farm-Worker Rights Organization, Inc. v. Department of Health and Rehabilitative Services, 417 So. 2d 753 (Fla. 1st DCA, 1982).

    In this proceeding, there is no evidence to support a conclusion that a substantial number of Petitioner's individual members are or would be substantially affected by the grant or denial of a dredge and fill permit to the applicant Fairfield. Only one member of the Petitioner's organization testified that she utilized the waters in the vicinity of the Riverside Landing project. Neither this witness nor the Petitioner's President had knowledge concerning the number of other members who might reside near or utilize the water resources in the area. Neither of the Petitioner's two members who testified in this proceeding elucidated the manner in which their substantial interests might be affected by the proposed project. More importantly, there was absolutely no evidence that a substantial number of the remaining 248 members would be affected in any manner by the project. Consequently, it is concluded that Petitioner has failed to establish its standing under Section 120.57(1), Florida Statutes.

    
    

14. A citizen who seeks to intervene in an ongoing licensing proceeding under Section 403.412(5), Florida Statutes, need only file a verified pleading asserting that the activity for which permitting is sought will have the effect of impairing, polluting or otherwise injuring the air, water or other natural resources of the State. Fairfield contends that Petitioner lacks standing under this section because Petitioner, an unincorporated association, is not a "citizen" and because the pleading filed by the Petitioner was not "verified" as required by Section 403.412(5). The issue of whether an unincorporated association is a citizen for purposes of Section 403.412(5) has recently been addressed by the DER by a Final Order in the case of Environmental Confederation of Southwest Florida, Inc. v. Cape Cave Corporation and DER, Case No. 83-2567 (October 16, 1985). In that case, the DER recognized that standing under Chapter 120 may be conferred upon unincorporated groups and associations. Since the purpose of Section 403.412 is to expand public access to the appropriate forums to enforce

    environmental laws and broaden public participation in environmental decision-making, it would be illogical to restrict standing under that section to corporations when it is not so limited under Chapter 120. This reasoning is persuasive and is adopted.

    
    

15. The pleading filed in this case was not verified. It was signed by "Jane R. Hammer, Natural Resources Committee." Jane R. Hammer testified under oath during the hearing and was subject to cross examination. Had the issue of the verification of the initial pleading been raised early in these proceedings, the Petitioner would have been permitted to file an amended pleading to cure this procedural defect. It is concluded that no party in this case was prejudiced by the failure to "verify" the pleading and that the Petitioner has standing to intervene in this permitting proceeding pursuant to Section 403.412(5), Florida Statutes.

    
    

16. As noted in the findings of fact, Fairfield received a determination from the DER by letter dated November 21, 1984, that the area comprising the Harbour Watch residential development was not within the State's dredge and fill jurisdiction. Although the Intent to Issue the permit regarding the Riverside Landing project did not mention the non-contiguous Harbour Watch project, and although Fairfield never applied for a dredge and fill permit for the Harbour Watch area, Petitioner seeks to insert that jurisdictional determination as an issue in this proceeding. It is concluded that this proceeding is not the proper forum in which to challenge the DER's action, or non- action, with regard to the Harbour Watch area. This proceeding pertains to the Riverside Landing project. That project was the subject of Fairfield's dredge and fill application, bearing DER File No. 520916913, and the subject of the DER's Intent to Issue, also bearing DER File No. 520916913. The pleading which instituted this proceeding, filed on August 8, 1985, refers to DER File No. 520916913. At this point in time, there is no pending administrative, licensing, or other proceeding" regarding Harbour Watch in which the Petitioner may intervene pursuant to Section 403.412(5), Florida Statutes.

    
    

17. Unlike the recent cases decided by the First District Court of Appeal, styled Manasota-88, Inc., et al. v. Gardinier, Inc. and Department of Environmental Regulation, (case Nos. BD- 124, BD-295 and BE-22, Op. filed January 7, 1986), relied upon by Petitioner, this is not an instance where the DER has determined it will not require one type of permit for the same installation which does require another type of permit. In the

    Manasota-88 cases, the DER had jurisdiction to require an air pollution permit for a phosphogypsum disposal field, but chose not to exercise that jurisdiction in a proceeding involving water permits for that same installation. Manasota-88 had timely intervened in the water pollution permitting process, but was prevented from raising air pollution as an issue in that proceeding. On appeal, the Court held that DER created the air pollution issue by collecting and considering data on radioactive emissions and then made an affirmative decision that the installation did not require air pollution permits. The Court concluded that this decision constituted agency action; and remanded the case for further proceedings "wherein the agency shall explicate its nonrule policy and permit M-88 to present relevant countervailing evidence and argument." In a special concurrence, Judge Smith noted that the majority's concept of "agency action" should only be applied in instances where there is a pending licensing or permitting proceeding, and not in a singular "no permit required" situation.

    
    

18. Here, we have two separate, non-contiguous projects. With regard to Riverside Landing, a permit has been requested, reasonable assurances of compliance with statutory and regulatory criteria must be provided, and the Petitioner is entitled to intervene in that permitting process. With regard to Harbour Watch, the DER has determined that it has no jurisdiction over that site, no application for a permit has been submitted and there is no pending proceeding in which petitioners may intervene. Consequently, petitioners may not inject into this proceeding the issue of DER's jurisdiction in the separate and non-contiguous area known as Harbour Watch. Any remedy which petitioner or others may have with regard to the environmental impacts of the Harbour Watch project may be pursued under Section 403.412(2), Florida Statutes.

    
    

19. Prior to determining whether or not Fairfield's dredge and fill project is permittable, the applicable statutory and regulatory criteria for review must be identified. Fairfield received a Development Order regarding its Riverside Landing project in December of 1983 and so notified the DER. There was no evidence presented that the notification to DER was untimely. Pursuant to Section 403.913(6), Florida Statutes, a residential development for which a Development Order has been issued prior to October 1, 1984 is entitled to an exemption from the expanded dredge and fill permitting criteria established by the Warren S. Henderson Wetlands Protection Act of 1984, if timely notification is given to the DER. It is concluded that the evidence demonstrates that Fairfield is entitled to such an

    exemption for its Riverside Landing project. The Amended Development Order of March 19, 1985, based on amended site plans, did not remove this exemption as it was specifically found that the amended site plans did not constitute a substantial deviation requiring further review. It is immaterial that DER did not recognize Fairfield's entitlement to the exemption until its letter dated September 12, 1985, after this matter was transferred to the Division of Administrative Hearings, or that the initial Intent to Issue referred to the criteria of Section 403.906(2), Florida Statutes, and Chapter

    17-12, Florida Administrative Code. This is a de novo proceeding and all parties were permitted the opportunity to present evidence regarding the appropriate criteria to be applied to this permit application. It is concluded that the evidence establishes that Fairfield is entitled to the exemption afforded under Section 403.913(6) and that this project should be reviewed under the permit criteria which existed prior to January 24, 1984.

    
    

20. The totality of the evidence adduced in this proceeding leads to the conclusion that Fairfield has provided reasonable assurances that the short-term and long-term effects of its proposed dredge and fill activity will not result in violations of the water quality criteria, standards and provisions of Chapter 17-3, Florida Administrative Code. The burden of establishing its entitlement to a permit lies with the applicant. Here, the applicant has demonstrated that the effects of filling the high marsh area, now of little value to either the quality of surrounding waters or biological organisms, will be minimal. On the other hand, the creation of an equal amount of intertidal wetlands planted with Spartina will actually benefit the water quality of Lake Avoca and will have no harmful effects upon the waters of St. Joseph's Sound or the Aquatic Preserve. Any short-term impacts from turbidity during construction will be controlled by utilizing state-of-the-art techniques and by timing the activity during low tide phases. The conservation of fish, marine and wildlife will actually be enhanced by the creation of the new wetlands. No navigational hazards or impediments will result from the project so as to be contrary to the public interest. In summary, the applicant has demonstrated that its proposed filling of the high marsh and creation of an intertidal Spartina marsh system equal in aerial extent to the area filled will actually improve water quality and will be beneficial to marine and estuarine organisms.

    
    

21. Having affirmatively provided reasonable assurances of statutory and regulatory compliance with Chapters 403 and 253,

Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code, it was incumbent upon the Petitioner to present competent contrary evidence. This the Petitioner failed to do. While the Petitioner established that the area to be filled and the area to be dredged and planted will not be exact functional replicas of each other, it failed to demonstrate that the proposed project would violate water quality standards or otherwise be contrary to the public interest. There was no competent substantial evidence presented by the Petitioner to controvert the applicant's evidence to the effect that the overall system would actually be enhanced by the proposed project. The Petitioner also failed to demonstrate that there would be any adverse cumulative impacts resulting from this project.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that a dredge and fill permit be issued to Fairfield to fill 2.1 acres of wetlands and to create 2.1 acres of wetlands as mitigation, including the planting of Spartina to be maintained at an 80% survival rate for a period of five years and the provision of erosion control measures in and adjacent to Lake Avoca and St. Joseph's Sound.

Respectfully submitted and entered this 14th day of February, 1986 in Tallahassee, Leon County, Florida.

DIANE D. TREMOR

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 14th day of Feburary, 1986.

APPENDIX

The proposed findings of fact submitted by the Petitioner and the Respondent Fairfield have been accepted and/or incorporated in this Recommended, except as noted below:

Petitioner

page 3, 3rd full paragraph, Rejected; not supported last sentence: by competent substantial

evidence.

page 4, 1st paragraph: Rejected; contrary to the

greater weight of the evidence.

page 5, 1st full sentence: Accepted, but irrelevant and

immaterial to disposition of any issue.

pages 5 and 6, starting with Rejected; contrary to the 1st full paragraph: greater weight of the

evidence.

Respondent Fairfield

page 4, 2nd full paragraph: Rejected; mere recitation of

testimony and conclusions of law as opposed to factual findings.

page 13, 1st paragraph: Rejected: irrelevant and

immaterial.

NOTE: Many of the proposed findings of fact submitted by the Petitioner and the Respondent Fairfield constitute either recitations of testimony or legal conclusions. While these have not technically been rejected by the undersigned, they are not appropriate for the findings of fact section and are discussed in the conclusions of law.

COPIES FURNISHED:

Victoria Techinkel Secretary

Twin Towers Office Bldg. 2600 Blairstone Road

Tallahassee, FL 32301

Mary f. Smallwood General Counsel

Twin Towers Office Bldg. 2600 Blairstone Road

Tallahassee, FL 32301

William W. Deane, Esquire Hanley and Deane, P.A.

465 Second Avenue North

P. O. Box 7473

St. Petersburg, FL 33734

Julia D. Cobb Deborah Detzoff Richard Tucker

2600 Blairstone Road

Tallahassee, FL 32301

Terry E. Lewis Steve Lewis

Messer, Vickers, Caparello, French & Madsen

P. O. Box 1876 Tallahassee, FL 32302

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

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

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL REGULATION

LEAGUE OF WOMEN VOTERS OF CLEARWATER-UPPER PINELLAS COUNTY,

Petitioner,

v. DOAH CASE NO. 85-2755 DDT

OGC FILE NO. 85-0822

DEPARTMENT OF ENVIRONMENTAL REGULATION and FAIRFIELD COMMUNITIES, INC.,

Respondents.

/

FINAL ORDER

On February 14, 1986, the Division of Administrative Hearings' hearing officer issued her Recommended Order in the above-captioned case. 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, all parties to the proceeding were allowed ten (10) days in which to file exceptions to the Recommended Order. Petitioner, the League of Women Voters of Clearwater - Upper Pinellas County (the "League"), filed timely exceptions (a copy of which is attached as Exhibit B) and a request for oral argument before the Secretary of the Department.

BACKGROUND

The permit applicant and co-respondent in this case, Fairfield Communities, Inc. ("Fairfield") proposes to construct two residential developments, called Harbour Watch and Riverside Landing, on adjacent pieces of property in Pinellas County. For one development, Harbour Watch, the Department determined that it did not have permitting jurisdiction. Fairfield applied for

a permit from the Department to conduct dredge and fill activities in connection with the Riverside Landing development.

Fairfield proposed, as part of its permit application, to create 2.1 acres of Spartina marsh, to mitigate for the destruction of 2.1 acres of jurisdictional wetlands on-site.

The League filed an unverified complaint requesting a Section 120:57 hearing on the Department's proposal to issue a dredge and fill permit to Fairfield for the Riverside Landing project.

In her Recommended Order, the hearing officer concluded that the League had standing to request a formal administrative hearing pursuant to Section 403.412(5), Florida Statutes, but not pursuant to Section 120.57, Florida Statutes.

On the merits of the case, the hearing officer concluded that the proposed mitigation was acceptable and that the applicant was entitled to a dredge and fill permit for the Riverside Landing project. With respect to the Harbour Watch project, the hearing officer concluded that the Department's determination of no jurisdiction could not be challenged in this permit proceeding.

Since the entry of the Recommended Order, the Department has issued a policy memorandum dated March 25, 1986, on the subject of mitigation under the Wetlands Protection Act, Sections 403.91

- 403.929, Florida Statutes. A number of questions addressed in the memorandum are at issue in this proceeding, such as the likelihood of success, replacement of specific wetland functions, long and short term impacts, and the appropriate ratio of replacement.

I would note that, while the hearing officer did not have the benefit of that memorandum during her consideration of this case, the Recommended Order addresses those issues in a manner that is consistent with the policies expressed in the memorandum.

RULING ON PROCEDURAL ISSUES

On February 26, 1986, the League requested oral argument before the Secretary of the Department. Florida Administrative Code Rule 17-103.200(3), provides that the Secretary in her discretion, may grant oral argument. I decline to do so in this case. All parties have had the opportunity to file written

pleadings in this matter. It does not appear that oral argument is necessary to clarify the issues in this case. Accordingly, the request for oral argument is denied.

RULINGS ON EXCEPTIONS

The League has filed exceptions to both Findings of fact and conclusions of law in the Recommended Order. In considering the League's exceptions to findings of fact, I note that I may not reject such a finding unless, after a review of the entire record, I find that the finding of fact is not supported by competent substantial evidence. Section 120.57(1)(b)9., Florida Statutes.

The League's first exception to a finding of fact is to the hearing officer's finding that Fairfield's Florida business is operated under the name of Fairfield Florida Companies. The League objects on the grounds that there was only hearsay evidence to support such a finding. This exception is rejected as irrelevant to the merits of this case. The League has not shown or even argued that the respondent's fictitious name has any significance.

In its second exception, the League requests that I make an additional finding of fact that the dredge and fill activities which are the subject of this case were not contemplated by the original development order issued by the City of Tarpon Springs. The record reflects that on March 19, 1985, the City of Tarpon Springs issued an amended development order for the Harbour Watch and Riverside Landing projects. (See Hearing Officer's Exhibit 2). That order concluded that certain modifications proposed by the developer did not constitute a substantial deviation under Section 380.06(19), Florida Statutes (1985).

Specifically, the developer proposed to conduct dredging and filling activities in a 12.9 acre wetland on the Harbour Watch site and to conduct mitigation activities on the Riverside Landing site, as required by the Department and the U. S. Corps of Engineers.

In its amended development order the City found that:

The Board of Commissioners has examined the application for the permit from the DER/COE to release jurisdiction of certain claimed wetlands which are primarily comprised of depressional areas created by the abandoned golf course which was previously located on

the site all as contained under the Application - Riverside Landing 2.57 Acre Mitigation and has reviewed the mitigation areas and finds that this mitigation process is consistent with the Development Order and the ADA. It is further found that all wetland areas to be preserved as provided in the "Order and ADA are being protected by the Developer under the permit sought. The work proposed under the mitigation is consistent with the language and intent of the Order and ADA and does not constitute a substantial deviation under Florida Statutes 380.06(17).

Hearing Officer's Exhibit 2, at pg. 6.

The Recommended Order is modified to incorporate the findings of fact in the preceding two paragraphs.

The League's third exception is rejected as irrelvant. The hearing officer has correctly found that the Department, by letter dated November 2, 1984, informed Fair-field that it did not assert jurisdiction over any wetlands on the Harbour Watch site. It is irrelevant whether Fairfield at any time applied for a permit for activities at the Harbour Watch site.

In its fourth exception, the League again requests that I make an additional finding of fact. Specifically, the League requests that I find that only 1.2 acres of the proposed 2.1 acres of mitigation wetlands would border Lake Avoca. Again, however, the League has failed to demonstrate the relevance of such a finding.

The hearing officer specifically found that the 2.1 acres of wetlands to be filled were unproductive and that the destruction of that area would have minimal impacts. In contrast, the hearing officer found that the 2.1 acre marsh to be created would be superior to the existing wetland in both biological and water quality vainest There is no evidence that the location of the newly created wetlands would lessen those values or make the proposed mitigation unacceptable.

Accordingly, the fourth exception is rejected.

In reaching this conclusion, I recognize that the Department's mitigation policy frequently requires at least a two to one ratio of creation of wetlands for destruction. In

this case, however, the hearing officer recognized the high rate of success likely for Spartina plantings. In addition, the hearing. officer specifically found the newly created marsh would more than replace the water quality and habitat functions provided by the existing wetland.

The fifth exception is to the hearing officer's finding of fact that "water quality and fish and wildlife benefits will occur almost immediately after the mitigation area is dredged and planted." Since I find that the record contains competent substantial evidence to support such a finding I reject this exception. (See Transcript, pg. 140-2). I would note that the hearing officer did not find that the created marsh system would be fully functioning immediately, either for habitat or water quality functions. The record does support a finding, however, that some water quality function will return almost immediately. This inherent lag time was recognized by the Department when it required that the mitigation proposal be carried out before any dredging and filling took place in existing wetlands.

Next, the League objects to the hearing officer's finding of fact that "[t]he creation of an intertidal community adjacent to tidal waters will promote the flushing of pollutants on a regular basis and will be beneficial to the water quality of Lake Avoca, while producing no adverse effects upon the waters of St. Joseph's Sound." This exception is based on the fact that the applicant did not perform a hydrographic survey or conduct water quality tests in Lake Avoca.

This exception must be rejected as the hearing officer's finding is supported by competent substantial evidence.

Fairfield presented expert testimony by Mr. Goulish that the hydrographies of Lake Avoca would be improved by the project. (Transcript, pg. 56-7, 76-9).

The League's seventh exception requests an additional finding of fact that "the seasonal surges associated with high marshes have a beneficial effect on the habitat and water quality of Lake Avoca." This proposed finding is in contrast to the hearing officer's findings that:

5. The areas proposed for filling are infrequently inundated, non-navigable high marsh areas. They are mainly drainage ditches which do not receive regular tidal exchange and are of moderate to no value to marine or estuarine organisms. These areas

currently serve primarily as a habitat for weeds and exotics, such a Brazilian pepper, and there are some saltern areas. A high marsh is typically a fairly harsh habitat characterized by a low diversity of plants and animals.

* * *

7. The short- and long-term impacts of filling 2.1 acres of relatively unproductive high marsh are minimal. The 2.1 acres to be dredged in mitigation for the filled acres will be equal in aerial (sic) extent and superior in terms of biological value and water quality. . . . The mitigation areas will not replicate the areas to be filled. For example, the newly created wetlands will provide a different "timing" effect in the form of a daily flushing as opposed to seasonal surges. However, the overall impact of exchanging the high marsh area for the shallow intertidal areas will be beneficial in terms of water quality and biological values. Also, the sloped areas which will border the scraped mitigated areas will provide a transitional zone for higher marsh species. This additional area to be created will total about one-third additional acre.

The evidence in the record on this point is conflicting.

The hearing officer did recognize that there would be a different timing effect in terms of flushing. However, she found the overall water quality and habitat functions would be improved. There is competent substantial evidence in the record to support that finding; and, in fact, the League has not challenged that finding. Thus, I decline to make an additional finding of fact as requested by the League.

The mitigation policy memorandum recently issued by the Department specifically requires an assessment of the functions being performed by the wetland to be destroyed and replacement of those same functions by the created system. I do not find the hearing officer's conclusions in this case to be inconsistent with that policy statement. I would note specifically her finding of fact that the wetlands to be

impacted by this project "are mainly drainage ditches which do not receive regular tidal exchange and are of moderate to no value to marine or estuarine organisms."

The final exception to findings of fact is to the hearing officer's finding that the Department had confidence that Mr. Lewis, Fairfield's consultant on mitigation, would correct any problems that might arise. The League's statement that Mr.

Lewis made no guarantee that he would correct any problems is not entirely accurate. Mr. Lewis testified that it was his practice as a consultant to provide his clients with a written guarantee of survival of a certain percentage of plants. That guarantee included a requirement that the consultant replace plants at his own expense to the extent necessary to assure the required survival rate specified in the Department permit. The hearing officer has recommended that the Department include in its permit a condition requiring at least an 80 percent survival rate for five years. Thus this exception is rejected.

The League has also filed three exceptions to the hearing officer's conclusions of law. First, it asks that the Department decline to follow the ruling of the Florida Supreme Court in Florida Home Builders' Association v. Department of Labor, 412 So. 2d 351 (Fla. 1982). No attempt is made, however, to distinguish this case from Florida Home Builders. This exception must be rejected out of hand. To arbitrarily refuse to follow a decision of our Supreme Court would be an indefensible action.

Next, the League requests that I overturn the hearing officer's conclusion that this proceeding was not an appropriate place to challenge the Department's determination that it does not have jurisdiction over wetlands on the Harbour Watch site.

I agree with the hearing officer's conclusion and reject this exception.

The League argues that the First District Court of Appeal's decision in Manasota 88, Inc. v. Gardinier, 11 FLW 178 (Fla. 1st DCA 1986), is applicable to the instant case. In Manasota - 88, the court held that the Department must consider the need for an air pollution permit for a proposed gypsum stack in the same proceeding in which it considered the water pollution permit.

The hearing officer concluded that Harbour Watch and Riverside Landing were separate projects on non-contiguous pieces of property unlike the Manasota - 88 case which involved separate permits for the same project. As the hearing officer noted, the League may challenge the Department's jurisdictional determination under Section 403.412(5). In addition, if no notice was given of the Department's previous determination, the League may yet have a point of entry for an administrative hearing. However, those facts are not before me in this case

and I do not rule on that issue here.

Finally, the League argues that Fairfield should not have been grandfathered under Section 403.913(6), Florida Statutes. That section provides that any residential development for which a development order has been issued shall be subject to the Department's dredge and fill jurisdiction as it existed prior to January 24, 1984; It is uncontested that Fairfield had a development order for both projects issued prior to the effective date of Section 403.913. The developer also submitted a timely request for qualification under the grandfather provision. That request was approved by the Department on September 12, 1985.

Between the time Fairfield submitted its request for grandfathering and the time it was approved, the City of Tarpon Springs issued an amended development order for both projects finding that certain proposed modifications to the projects did not constitute a substantial deviation from the original development order. The hearing officer concluded as a matter of law that Fairfield did not lose its grandfathered status by modifying its project since it was found that the modifications did not constitute a substantial deviation. The League argues that that conclusion should be rejected on the grounds that grandfathering should be limited to those dredge and fill activities contemplated by the original development order.

I reach the same result as the hearing officer, but on different grounds. While a finding by the appropriate local, government that no substantial deviation has occurred is a relevant factor to be considered by the Department, it is not conclusive. Some modifications, while not deemed to be substantial deviations under Chapter 380, Florida Statutes, may still be significant enough to cause a project to lose its grandfathered status. For example, a change from a residential to an industrial development would disqualify a grandfathered project.

In this case, however, the modification to the Riverside Landing project was minor in scope, and the City specifically concluded that the wetlands required to be preserved under the original development order would be protected. See Hearing Officer's Exhibit 2, pg. 6. Consequently, I conclude that the developer's grandfathered status is not affected.

The League's last exception is to the hearing officer's recommendation of issuance. That exception raises no new issues

and 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 as modified herein.

   
   

2. Within twenty (20) days of entry of this final order, the Department shall issue the requested permit as recommended by the hearing officer.

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 32301; 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 28 day of March, 1986.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

VICTORIA J. TSCHINKEL

Secretary

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

(904) 488-9730

CERTIFICATE OF SERVICE

I HEREBY CERTIFY the foregoing FINAL ORDER has been furnished by hand delivery to Diane D. Tremor, Hearing Officer, Division of Administrative Hearings, 2009 Apalachee Parkway, Tallahassee, Florida 32301; William W. Deane, Esquire, Hanley and Deane, P.A., 465 Second Avenue North, Post Office Box 7473, St.

Petersburg, Florida 33734; and Terry E. Lewis, Esquire, Messer, Vickers, Caparello, French & Madsen, Post Office Box 1876, Tallahassee, Florida 32302 on this 28th day of March, 1986, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

MARY F SMALLWOOD

General Counsel

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

(904) 488-9730

Docket for Case No: 85-002755

Orders for Case No: 85-002755