STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA KEYS CITIZENS COALITION ) and CITY OF KEY WEST, )
)
Petitioner, )
)
vs. ) CASE NO. 86-1216
) 1800 ATLANTIC DEVELOPERS and ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )
)
Respondent. )
)
RECOMMENDED ORDER
This case was heard on June 25, 26 and 27, 1966, in Key West, Florida, by
L. Caleen, Jr., Hearing Officer with the Division of Administrative Hearings. Petitioner, City of Key West, and Respondents, 1800 Atlantic Developers and the Department of Environmental Regulation, were represented by counsel. Petitioners Florida Keys Coalitions was represented by a person found to be qualified in accordance with Rule 221-6.08, Florida Administrative Code.
APPEARANCES
For Petitioner: William H. Westray Florida Keys Qualified Representative Coalition 1401 Sunset Drive
Key West, Florida 33040
For Petitioner: Leonard F. Mikul, Esquire City of Key West Post Office Box 1262
Key West, Florida 33041
For Respondent: Douglas M. Halsey, Esquire 1800 Atlantic Evan K. Kaplan, Esquire
Developers 4900 Southeast Financial Center
200 South Biscayne Boulevard Miami, Florida 33131-2363
For Respondent: Douglas H. McLaughlin, Esquire Department of 2600 Blairstone Road Environmental Tallahassee, Florida 32301 Regulation
ISSUE
Whether 1800 Atlantic Developers is entitled to a DER fill permit and water quality certification for the creation of a sand beach, approximately 500' long X 100' wide, requiring placement of 2,620 cubic yards of fill, 2,200 yards of which would be waterward of mean highwater (MHW), off Key West, Florida.
BACKGROUND
On April 19, 1985, 1800 Atlantic Developers ("1800 Atlantic") the developer of a 168-unit condominium at 1800 Atlantic Boulevard in Key West, Florida applied to the Department of Environmental Regulation ("DER") for a permit to construct a beach facing the Atlantic Ocean off Key West; a jetty on the east end of the beach; a fishing pier on the west end of the beach; and an art display platform seaward of the new beach. On September 5, 1985, after several revisions to the permit application in response to concerns expressed by DER, DER issued a notice of intent to deny the application. 1800 Atlantic subsequently made additional changes to the proposed project and agreed to specific permit conditions. On March 27, 1986, DER reversed its position, giving notice of its intent to issue the requested permit.
The Florida Keys Coalition ("Coalition") and the City of Key West ("City") timely requested a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes, to contest the proposed issuance. DER granted these requests and forwarded them to the Division of Administrative Hearings for assignment of a hearing officer. Final hearing was thereafter set for June 25, 26 and 27, 1986.
In the meantime, lingering doubts (by DER biologists) about the project surfaced. Just prior to the final hearing, DER and 1800 Atlantic (in an effort to allay these concerns) agreed to several additional conditions for the issuance of the permit. Although these additional conditions were generally described at the final hearing, they were later reduced to writing and received in evidence as a post-hearing exhibit for the purpose of providing specificity.
On June 6, 1986, 1800 Atlantic filed a motion to impose sanctions against the City for failure of the City's mayor to attend a deposition for which he had been duly subpoenaed. After hearing argument at hearing, the motion was granted. Subsequently, the City's request for leave to depose 1800 Atlantic's counsel was granted and the parties were allowed to submit further argument. In order not to delay submittal of a recommended order, all parties agreed that the motion could be disposed of by separate order issued later.
At final hearing 1800 Atlantic presented the testimony of Edward A. Swakon, P.E., of Consulting Engineering and Science, Inc. (accepted as an expert in coastal engineering and coastal processes); Harold R. Wanless, Ph.D., an Associate Professor at the University of Miami Rosenstiel School of Marine and Atmospheric Sciences (accepted as an expert in shallow marine sediments; the interaction of sediments and seagrasses, and water quality as it relates to sediments); Robert G. Dean, Ph.D., Director of the Division of Beaches and Shores of the Department of Natural Resources and Professor at the University of Florida in the Department of Coastal and Oceanographic Engineering (accepted as an expert in coastal engineering, coastal processes and beach restoration and renourishment); Gilbert L. Vos, Ph.D., a professor at the University of Miami Rosenstiel School of Marine and Atmospheric Sciences (accepted as an expert in marine ecology with specific reference to tropical shallow waters, benthic organisms, seagrass communities and their relationship to water quality); Paul Carter, Vice-President of Key Title and Abstract Company; and W. Ross McWilliams (accepted as an expert in marine biology and water quality). By post-hearing deposition, 1800 Atlantic presented the testimony of Casey Fitzgerald, Chief of the Bureau of State Lands Management of the Department of Natural Resources.
DER presented the testimony of Kenneth Echternacht, Ph.D., an employee of DER (accepted as an expert in hydrographic engineering); Teryl A. Kranzer, an employee of DER (accepted as an expert in marine biology and the environmental effects of dredge and fill projects); Douglas L. Fry, an employee of DER (accepted as an expert in the environmental effects of dredge and fill projects); and Steven J. Fox, Director of DER's Division of Environmental Permitting.
The Coalition presented the testimony of Renate Skinner, Ph.D., an employee of the Department of Natural Resources (accepted as an expert in biological oceanography and marine biology); Frances T. Hames, a Key West resident and bird watcher for over 40 years; and Curtis Kruer, a civilian employee of the U.S. Army Corps of Engineers (accepted as an expert in marine science, aerial photographic interpretation, shallow water marine habitat, and coastal processes).
The City presented the testimony of Paul Carter, Teryl A. Kranzer and Curtis Kruer.
1800 Atlantic Exhibits 1, 2A-2I, 3 through 17, and post-hearing Exhibits 18 through 20 were received in evidence, as were DER Exhibits 1 through 7.
Coalition Exhibits 2D-2H, 3, 4A-4B, 5 through 9, City Exhibits 1 and 4, and Petitioners' Joint Exhibit 1, were also received in evidence.
The parties filed post-hearing proposed findings of fact and responses by August 21, 1986. Rulings on the proposed findings are contained in the attached Appendix.
Based on the evidence adduced at hearing, the following facts are determined:
FINDINGS OF FACT
The Proposal
By its initial application in April 1985, 1800 Atlantic proposed to place 4,100 cubic yards of fill (manufactured sand) along approximately 460 feet of eroded shoreline facing the Atlantic Ocean and fronting its 168-unit condominium (still under construction) in Key West, Florida. In connection with this project, 1800 Atlantic also proposed a 200 foot jetty at the east property line; a second and smaller jetty (if needed) at the west property line; a 400 foot long (10' high and 20' wide) fishing pier on the western property line; and a 50 x 50 foot art display platform seaward of the new beach. Approximately one and one-half acres would be filled of which 0.9 acres would be below the MHW line. The "proposed use" for the new beach was designated "private multi- dwelling." By affidavit Atlantic 1800 certified that it was record owner, lessee, or easement holder of the project site. 1/ (Atl.Exh.1)
On May 7, 1985, 1800 Atlantic revised its application by submitting a new plan view to Teryl Kranzer, DER's field biologist. The modification tapered the beach fill into the shoreline toward the western property line and reduced the size of the westernmost jetty. (Atl.Exh.4)
On May 10, 1985, DER sent a "Completeness Summary" to 1800 Atlantic, asking for additional information to complete the application. (DER Exh.5)
On June 18, 1985, 1800 Atlantic responded to DER's Completeness Summary by submitting the additional requested information to Douglas L. Fry, Environmental Supervisor of DER's South Florida District. Revised drawings were submitted eliminating the east jetty from the project. The volume of beach fill material was indicated as 2620 cubic yards--420 above MHW, and 2200 below MHW. (Atl.Exh.5)
On July 1, 1985, DER sent another Completeness Summary to 1800 At1antic seeking still more information to make the application complete. (DER Exh.6)
t 20, 1985, 1800 Atlantic supplied the additional information and modified its proposal by eliminating the art display platforms the fishing pier and the west jetty. The beach fill was also modified by tapering the fill from the corner of the existing seawall at the east property line into the existing shoreline on the west property line. Total beach fill volume was shown as 2700 cubic yards--300 above MHW and 2200 below. The proposed dry beach extended 70 feet seaward (the June 18, 1985 submittal showed an 80 foot wide beach) and the toe of the fill extended 100 feet seaward of the MHW line. In response to DER's inquiry about public access, Edward Swakon, 1800 Atlantic's consulting engineer, stated:
will be no provision made to assure perpetual public access to the project area. As we previously stated, the applicant has no intentions of prohibiting public access, however, you should be aware that the appli- cant is the owner of the submerged land and that no guaranteed public access is assured. (Atl.Exh.7)
Mr. Swakon, on behalf of 1800 Atlantic, then addressed each of the permitting criteria of Section 403.918(2)(a), Florida Statutes (1985), though contending that they did not apply to the project:
project will not affect the public health, safety, welfare or the property of others. On the contrary, as a result of this project the tax base of the City of Key West will be improved and therefore benefit the residents of the community. The beach fill will provide an added degree of protection to the upland development, thereby reducing the potential claims to the Federal Flood Insur- ance Program. In addition, the project provides a beach for 168 residents of the upland development and their many guests. This reduces the impact on the already over crowded public beaches in Key West.
project will not adversely effect the conservation of fish and wildlife within the immediate vicinity. The area to be filled is devoid of significant vegetation. It is our opinion that the placement of this fill would result in an imperceptible impact to the marine resources. There are no endan- gered or threatened species or habitats located within the area to be filled.
project will not adversely effect navigation, the flow of water or cause harmful erosion or shoaling. On the contrary, the placement of this material will improve the overall shoreline conditions. The filling will not cause any erosion or shoaling in the vicinity.
the fill area is barren, it is our opinion that this project will have no impact on fishing, recreational values and/or marine productivity in the vicinity of the project.
project will be permanent in nature
will be no impact to historic or archeological resources. Id.
t 26, 1986, DER received the August 20, 1986 submittal of 1800 Atlantic and the application became complete.
r 5, 1985, the District Manager of DER's South Florida District in Fort Myers noticed his intent to deny the permit application. According to Douglas Fry, DER's supervisor of the District's dredge and fill section, the denial was based on information that he had received:
I expected that the project would degrade both general water quality standards as established in the intent, including
turbidity, biological integrity, transparency, other things noted as well as degradation of fish and wildlife standards as encompassed in part of the public interest requirements; I felt that the project would be contrary to
the public interest. (Tr.546)
the months that followed, 1800 Atlantic pursued the matter with various DER personnel, including Mr. Fry; Ms. Kranzer, the District biologist who performed the initial biological and water quality appraisal for the project; Steven J. Fox, Director of the Division of Environmental permitting, and William Hennessey, Deputy Director, both located in Tallahassee and supervisors of district permitting operations 2/ and Kenneth L. Echternacht, a DER hydrographic engineer in Tallahassee. Negotiations ensued, various modifications were proposed. Ms. Kranzer, the DER field biologist who had conducted the initial environmental evaluation in May 1985, and had recommended denial in September 1985, never submitted a new report evaluating the subsequent modifications, although she did discuss changes with other DER staff members.
At the time she evaluated the project, it had already been modified once--cubic yardage had been reduced; the fishing pier, art platform and both jetties had been eliminated.
t of negotiations between DER and 1800 Atlantic, DER reversed its initial position and, on March 27, 1986, gave notice of its intent to issue a permit for the revised project. The proposed permit incorporated changes agreed to by 1800 Atlantic. These changes required that the waterward 1/3 of the fill volume consist of coarse sand or sand aggregate no finer than 2mm in diameter; that approximately 10 percent of the sand range in size from 2mm to 6mm in diameter; and that 1800 Atlantic conduct a seagrass monitoring program for the duration of the permit. These changes were meant to resolve
DER's concern that the fill material might migrate seaward and smother offshore seagrass beds. The area below the MHW line to be covered by the fill (approximately 1/2 acre) remained the same as indicated in the last drawings submitted by 1800 Atlantic on August 20, 1985. (Atl.Exh.7)
l 1985, the City (of Key West) and the Coalition (Florida Keys Citizens Coalition) timely requested an administrative hearing to challenge proposed issuance of the permit.
R had announced its intention to grant the permit, Mr. Fry, DER's District environmental dredge and fill supervisor continue to have concerns about the project:
. . . I did not believe that the project still was clearly in a public interest, and that I did not see that the project had been modified enough to eliminate the destruction of aquatic habitat. I was concerned that the project did not encompass any mitigation to offset those, that damage. I was concerned
that we had not received reasonable assurances that the project was clearly in the public interest. I was concerned that we had not received reasonable assurances that the beach fill would stay in place, thereby contributing to future degradation, and I had experienced some concerns regarding cumulative impact. (Tr.547)
These concerns prompted representatives of DER and 1800 Atlantic to meet in Tallahassee on Friday, June 20, 1986. This was three working days prior to final hearing. Neither the City nor the Coalition were aware off or invited to, the meeting.
s meeting, DER and 1800 Atlantic agreed to certain additional project modifications. One addition required construction of a small terminal jetty or groin on the western end of the project to stabilize the fill and replace rocky habitat to be covered by the fill. The specifications for this groin were not subsequently calculated or submitted at hearing. 1800 Atlantic proposes to "field engineer" the groin within these parameters:
It would be designed to contain the fill or it would be designed in the field when the material was in place and would be designed with specifications that the rocks really didn't come any higher than the fill itself and would be adjusted so as to allow for some movement of sediment back and forth between it so as to minimize any down drift concerns that might exist. (Tr.121)
l hearing, DER and 1800 Atlantic reduced this addition to writing as one of several proposed conditions to the DER permit. These conditions, ostensibly providing precision and specificity to the project
changes described at hearing, were received over objection as part of DER's post-hearing Exhibit No. 7. The particular condition describing the groin-type structure to be built at the west end of the beach fill provides in pertinent part:
Prior to construction of the beach fill, the permittee shall submit approximately dimen- sioned sketches of the structure, for review, modification as necessary, and approval by [DER]. (DER Exh.7)
DER and 1800 Atlantic thus propose that specifications and drawings for this coastal structure be submitted, reviewed, and approved sometime in the future, after the requested permit is issued. The need for specifications is acknowledged, yet submittal and review is put off until after a permit is issued. Hence, detailed specifications for the structure remain unknown or ill- defined; scrutiny of those specifications by the City and Coalition is threatened; APA 3/ processes are frustrated.
e which DER and 1800 Atlantic agreed to at the Friday meeting was to taper the toe of the fill on the western one-half of the fill area to more closely match the contour of the existing shoreline. 1800 Atlantic's engineer sketched this change, free-hand, while testifying at final hearing. Hence, it also remains ill-defined and uncertain. Like the groin, this change was reduced to writing and received as part of DSR post-hearing Exhibit No. 7. And like the groin, before construction but after the permit is issued, 1800 Atlantic is to submit a "fully dimensioned and scaled plan view of the revised beach fill limits for review, modifications as necessary, and approval" by DER. (DER Exh.7) The procedural shortcomings of such a procedure have already been noted.
e which DER and 1800 Atlantic agreed to at the Friday meeting concerned off-site mitigation. As explained at final hearing, 1800 Atlantic would purchase an upland site equal in size to the area to be covered by the proposed fill and excavate it to tidal or subtidal elevations. (The upland mitigation site could be located as far as Big Pine Key (35 miles away) or elsewhere in the Florida Keys.) If this mitigation measure could not be accomplished prior to placement of the fill, a bond to assure its performance would be posted with DER. But this mitigation measure, when later reduced to writing and received as post-hearing DER Exhibit No. 7, became something quite different. The post-hearing exhibit specified that the upland mitigation site would be at least twice the size of (not equal in size to) the proposed one-half acre fill project. Moreover, the mitigation site was to be inspected and approved by DER prior to placement of the fill. If the mitigation site was not approved prior to filling, a bond (of unknown amount) would be posted to assure purchase and the excavation. With this condition, as with those already mentioned, critical features were left to future review and approval by DER, and so placed beyond the scrutiny of the other parties to this proceeding. The specific nature and location of this mitigation site is not known; neither is the amount of the bond to be posted if filling precedes mitigation. Whether the mitigation will, in fact, offset any loss of plant, fish, and wildlife habitat eliminated by the proposed fill is, likewise, unknown. Finally, the written condition, to the extent it doubles the size of the mitigation site presented at final hearing, is rejected as an unauthorized attempt to present new and additional evidence after the close of evidentiary presentation. (DER Exh.7)
s other on-site mitigation measures were agreed to at the Friday meeting. As explained at hearing, algae-covered rocks within the fill area would be moved to a non- vegetated part of the submerged land; a Halodule grass bed within the fill area would be relocated waterward of the fill area; the toe of the proposed fill would be staked prior to construction; and fill placement would occur only during periods of low tide. When later reduced to writing as a post-hearing exhibit, these conditions generally conformed to their description at final hearing.
Effect of Fill Project on Fishing or Recreational Values; Navigation; Marine Productivity;
and Conservation of Fish and Wildlife
t site is located on the southern shoreline of Key West on a narrow strip of beach known as Rest Beach, which includes a 2900 foot shoreline between Bertha Street to the east and White Street Pier to the west. The pier, a 950-foot long solid fill structure, is located 2400 feet west of the project site. Directly west of White Street Pier is another public beach (1400 feet long) known as Higgs Beach. With the exception of the submerged lands at the project site, to which 1800 Atlantic asserts titled all of the submerged lands adjacent to Rest Beach are publicly owned. (Atl.Exh.2-I; DER Exh.4)
s at the project site are part of the navigable open waters of Hawk Channel and the Straits of Florida (Atlantic Ocean), designated by DER as Class III waters. On May 8, 1985, the waters in the area of the project (within the boundaries of the Florida Keys Special Waters), were also designated (by rule) as "Outstanding Florida Waters"--thereby imposing DER's most stringent level of protection from degradation of water quality loss of fish and wildlife habitat, and reduction in marine productivity. (Rule 17-3.041(4)(i); DER Exh.4)
t site is bordered on the east by Bertha Street, which ends at a seawall facing the ocean. South Roosevelt Boulevard begins at the end of Bertha Street and parallels the shoreline east of the site. A public boat ramp is located on South Roosevelt Boulevard just east of Bertha Street. Just east of the ramp is a long curving jetty or groin at the southern end of a 3350-foot long public beach known as Smathers Beach. This public beach is within a few hundred feet of the project site. (Atl.Exh.6; DER Exh.4)
o the west of the project site is an undeveloped parcel of land consisting largely of mangroves separated from the ocean by a sandy berm. Although the berm has been overwashed and tidal connections have opened in the past, no tidal connection was apparent at the time of final hearing. In some places the berm may have been artificially altered west of this undeveloped wetland site. Other residential condominiums are located on uplands to the west.
d directly landward to the project site is a 168-unit, four story L-shaped condominium owned and developed by 1800 Atlantic. Recreational facilities, such as a swimming pool and club house, overlook the ocean. A third wing of the condominium (parallel to and abutting Bertha Street) was still under construction in July, 1985.
s not the first time a permit has been sought to create or restore a beach at the site. In 1979, the trusteeship of Eugene J. Weiss, a 1800 Atlantic's predecessor in title, applied to DER for a similar "beach restoration" permit. He proposed to place (between groins to be constructed at opposite ends of the property) 1750 cubic yards of sand waterward of MHW and
2500 cubic yards landward. The approximate area to be filled was .59 acres waterward of MHW, .80 acres landward. Curtis Kruer then an environmental specialist with DER, performed a biological and water quality appraisal of the project and recommended denial because the fill would bury vegetated benthic communities that provide habitat and nutrients to marine organisms which, in turn, become a food source for a large number of juvenile fish and shellfish. He also was concerned about the short and long-term cumulative biological effects of a number of such projects on the shoreline of Key West. In April 1982, Eugene Weiss withdrew the application. (Coalition Exh. 3)
s at the project site are shallows as the bottom slopes gently seaward. At mid-tide, depths of 1.5 feet are found 100 feet seaward of the MHW line. At low tide, the entire fill area is exposed. Even at high tide, water depths in the fill area range from zero (at MHW line) to approximately two feet at the toe of the fill. Because of the shallow depths, the fill project will have no significant adverse effect on navigation. (DER Exh.4; Atl.Exh.5)
f stacked but unstabilized railroad ties separates the upland area (where the condominium and associated structures are located) from the beach slope. The narrow, graveled beach slope contains a mix of sand, rock, rubble and beach plants. Several distinct zones of seawrack are found on the beach slope: Thalassia at the lower portion of the beach face and Sargassum at the base. (Atl.Exh.15, 16)
t 100 feet seaward of the MHW line, which includes all of the fill area, consists of small rubble embedded with calcareous sediments. The rubble consists of chunks of limestone rock and pieces of concrete less than two feet in size. Scattered among the rubble is anthropogenic debris such as bottles, asphalt and cast iron pipe. (Tr.130)
f the limestone rock and rubble found on the submerged project site are residential lag from a fill at the site prior to or during the early 1960s. The boundaries and extent of the prior fill have not been established. It appears, however, to have consisted of a mix of carbonate particles ranging from silt and clay to the rocks, rubble and coarse sand now found on the project site. The fill material on site is what remains from the earlier artificial fill.
e rock and rubble in the littoral zone provide attachment sites for various green, brown, and red algae such as Laurencia, Caulerpa, Cymopolia, Digenia, Batoptiora, Padina, Halimeda, Neomeris and Congia. These algal species play a positive role in the marine environment. The near shore contains a coarse sandy-shell substrate. (DER Exh.4; Atl.Exh.16)
f seagrasses grow on, and immediately seaward of, the fill site. These include Cuban shoalweed (Halodule wrightii) and turtle grass (Thalassia testudinum). Some patches of seagrass are found as close as 30 feet from the MHW line. 4/ Approximately 95 feet seaward, cuban shoalweed becomes dominant; turtle grass coverage increases as one travels seaward from the site. Some cuban shoalweed patches are dense and healthy, with blades sometimes two feet in length. There is a patch of cuban shoalweed on the eastern portion of the project site. Although 1800 Atlantic has agreed to dig-up and transplant this seagrass to unvegetated portions of its property seaward of the toe of fill, the success of such a transplanting is not assured. Unvegetated bottoms can usually be explained by environmental factors. (DER Exh.4; Atl.Exh.16)
s communities play a beneficial role in the marine environment. They provide habitat, feeding, and nursery areas for aquatic organisms. They supply primary nutrients as well as perform nutrient uptake and removal functions. The proposed fill would adversely impact the seagrass communities on the site--by smothering or burying any seagrasses not successfully transplanted. Moreover, the site, once converted to sandy beach for the use of owners and guests of the adjacent condominiums, could no longer support seagrass communities.
r shore zone of seagrass and algal communities, adversely impacted by the proposed fill, constitutes a productive shallow water habitat that supports a variety of juvenile fish and crustaceans. These include hares, banded tulip shells, nerites, xanthid crabs, blue crabs, lizard fish, barracuda, parrotfish, killifish, needlefish, grey snapper, sergeant major, tomtates, hermit crabs, shore crabs and blue crabs.
c macrofaunal species and diverse species of crustaceans live in the sediment of the in-shore rocky algae and seagrass communities. These species include Scyphoproctus, Notomastus hemipodus, Capitella capitata, Pulliella, Capitomastus, Capitellidae, Chaetozone, Tharvz annulosus, Caulleriella, Carilleriella bioculate, Glyceridae papillosa, Axiothella, Ceratonereis, Nereis Succinea, Nereis Rava, Nereis caudata, Onuphis magna, Protoariciinae, Proscoloplos, Cirrophorus lyriformis, Hasmineira elegans, Jasmineira bilobata, Fabricia, Augeneriella, Faebicola, Minuspio, Prionospio heterobranchia, Prionospio steenstrupi, Nerinides goodbody, Brania clavata, Exogone dispar, Exogone naidina, Odontosyllis, Sphaerosyllis labyrindiophia, Streptosyillis, Typosyllis hyalina, Typosyllis regulata, Typosyllis alternata, Typosyllis prolifera, Langerhansia cornuta, Langerhansia ferrugina, Syllida bansei, Terebella turgidula, Streblosoma hartmanae, Streblosoma abranachiata, Streblosoma, Pista palmata, Arca, Chjione caniculater, Tellina iris, Melita dintata, Elasmopus, Melito, Melita nitida, Rudilembordes, Dexamine, and Erichsonella filiformis. (Coalition Exh. 6)
g at the site took place as recently as June 1986. Three petite ponar samples were taken in seagrass beds 150-160 feet seaward of the shoreline; three were taken in the rubble zone just seaward of the toe of the proposed fill; and two were taken in seagrass beds off nearby Smathers Beach. As measured by the Shannon Weaver Species Diversity Index, the level of species diversity in the rock rubble just seaward of the toe of fill was 2.19; in the seagrass beds farther offshore, 4.71; and in the seagrass beds off Smathers Beach, 4.76. A diversity of 4 is in the upper range of food habitat. Although diverse species of benthic organisms are found on the site, the level of diversity is substantially less than the high levels found in the thicker seagrass immediately seaward of the project site. (Atl.Exh.16)
t Beach area (including the project site), provides a valuable habitat for migratory birds, wading birds, and shore birds. It is one of the last major stretches of uninterrupted shallow water bird habitat in Key West. Ms. Francis Hamer, a local resident and bird watcher for over 40 years, visits the area regularly. One of her favorite vantage points is on White Street Pier; from there, using a telescope, she observes birds feeding and wading along the Rest Beach shoreline. Although most of the birds she sees gather at the western end of Rest Beach, she has seen sandpipers, including the least sandpiper, twelve species of herons, including the yellow crowned night heron and the blue heron in the vicinity of the project site. When asked where would one go to see Sandpipers if the Rest Beach habitat was eliminated she replied, "I don't know of any other place in Key West." (Tr.645) Ms. Kranzer, the DER biologist, and
Mr. Kruer, the U.S. Army Corps of Engineers' biologist, have visited the site many times over the years and observed numerous wading and shore birds in the area. Ms. Kranzer photographed eight herons in the fill area at one time. 5/ Mr. Kruer has observed the little blue heron, the great egret, the cattle egret, the white ibis and the laughing gull, numerous shore birds. The proposed fill would adversely impact this valuable feeding ground for birds. The shallow algae and rubble zone, which supports the crabs and marine organisms which nourish bird life, would be replaced with beach sand. It is also likely that increased recreational use of the beach would drive off bird life.
e many natural areas typical to the Florida Keys which, as DER and 1800 Atlantic contend, are more valuable than the project site in biological productivity, and as nursery and feeding grounds for fish, marine life, and wildlife. Nevertheless, this fact does not negate the substantial benefits which the site now provides to juvenile fish, crustacenas, benthic marine organisms, and bird life.
l placement of the fill will have no impact on mobile organisms able to retreat to safer waters. Benthic and other organisms on the site which are relatively immobile would be destroyed by the fill. The number killed would be a relatively small fraction of the total of such organisms along the Key West shoreline, and their loss--alone--would not affect the marine environment to an extent which is quantifiable.
Effects of the Proposed Fill on
Water Quality Standards; Public Health, Safety or Welfare; Significant Historical and Archeological Resources;
Endangered Species or their Habitats
d project will not adversely affect public healthy safety, or welfare; significant historical and archeological resources; or endangered species or their habitats. (Neither the City nor the Coalition presented any affirmative evidence establishing adverse effect.)
l the project degrade or cause violations of DER water quality standards for Outstanding Florida Waters. See Rules 17-3.051, 17-3.061, and 17- 3.121, Fla.Admin.Code. Turbidity will be minimal, since filling would take place at low tide and turbidity curtains will be used. The loss of algae at the site would not cause significant degradation of water quality. (Algae covered rocks would be moved outside the fill area.)
c contends that water quality would actually be enhanced by the proposed fill. The seagrasses seaward of the site have beneficial effects on water quality, but their sediment beds are shallow. 1800 Atlantic contends that the finer particles of its fill material, dispersed by waves, would provide needed sediment to the offshore seagrass beds. This ostensible benefit is problematic. The study performed to support this contention did not sufficiently investigate or explain how seagrass beds beyond the reach of nearby beaches (and their sediment) could flourish. Dense and healthy seagrass offshore has not been shown to be endangered due to shallow sediment. It is clearly less than certain that just the right amount (too much would smother, too little would have no effect) of just the right kind of fill (only the fines are needed, not the large or coarser particles) would be delivered to offshore seagrass by natural forces.
Impacts on Erosion, Shoaling and Sand Migration
h and shoreline at the project site are relatively stable and in equilibrium; no greater erosion is occurring than at other unfortified shorelines in the Key West area. The coarse material and rubble that line the bottom of the site act as a "natural seawall" or armor which prevents or slows down erosion. (Tr.249) Removal of the existing rubble, as proposed, would eliminate this "natural armor." (Tr.260)
e in the vicinity at the site faces south to south- southeast. This exposure is relatively windward with respect to winter storms. Gentle prevailing east to southeast winds, however, produce low-energy waves that approach the shore and generate longshore currents moving east to west. (Atl.Exh. 15)
f a shallow limestone ridge offshore the Atlantic shoreline in Key West, waves reaching the shore are ordinarily well-dampened. Although subject to storm and hurricane attack by high energy waves, the southern shoreline is characterized as "low-energy." (Atl.Exh.15)
vicinity of the project site on the southern shoreline, there is no natural onshore supply of sediments to beaches from offshore. The beaches at Smathers Beach and at the project site (which have been narrowed by erosion over the last 25 years) are artificial, composed of limestone fragments derived from quarries. The fill was placed at both beaches sometime prior to 1962.
s have undergone gradual erosion. Fine sand and silt from the beach material is carried seaward, with no natural offshore sediment to replace it. The proposed fill will provide, at least temporarily, an added degree of protection to the upland development by widening existing upland between the condominium and the sea. It will not, however, prevent continued erosion. Over time, it too, will be dispersed by wave action and longshore drift to shorelines to the west. The fill would also temporarily stabilize the public sidewalk and street to the east of the site, currently being undermined. Protection of the public sidewalk and boat ramp from erosion, however, is part of public road maintenance duties.
c has neither alleged nor shown that its upland condominium, still under construction, is endangered by erosion or high-energy wave action. Nor has it shown that there are no reasonable methods of supplying an "added degree of protection" to the upland development, methods not requiring elimination of productive habitat for fish, marine life, and wildlife.
s net east-to-west longshore transport of sediment along the southern shoreline of Key West. Two groins at Smathers Beach (to the east) and the nearby public boat ramp have, to some extent, interrupted the normal longshore sand transport from the east. As a result, the effects of erosion are more pronounced on the eastern portion of the site, causing a shoreline "discontinuity." Although the proposed fill would partially eliminate this discontinuity, it has not been shown that the discontinuity is a serious problem. While it may trap floating debris, this was not a significant problem in July 1985, when Ms. Krenzer, the DER biologist, inspected the site.
Moreover, the proposed groin near the west property line (to stabilize the fill material) would--in itself--add a new shore discontinuity, and may cause more discontinuity to the west if it interrupts the normal longshore movement of sand. (DER Exh.4)
s finer than 200 microns tend to move in suspension, while grains finer than 40 microns cause turbidity. Grains coarser than 200 microns
tend to move along the sea bottom when sufficient wave or current energy is present. Analysis of onshore and offshore sediment indicates that not much material coarser than 200 microns is moving offshore into seagrass beds seaward of the project site. Most of the material larger than 200 microns found in the seagrass beds is being produced there naturally.
d that the proposed fill would migrate seaward and smother offshore seagrasses, seeks a condition (to which 1800 Atlantic has agreed) requiring that the seaward one-third of the fill volume consist of coarse sand no finer than two millimeters in diameter. The evidence is insufficient, however, to eliminate the possibility that constant wave action could gradually pulverize the coarse limestone into smaller particles that, when dispersed, could smother seagrass beds directly offshore and southwest of the site.
0 Atlantic has selected fill material with settling characteristics compatible with the existing beach material on site, placement should not cause an increase in turbidity. Although 1800 Atlantic posits that just enough of the fine sediments would migrate seaward to nourish grassbeds, leaving the coarse material to migrate westward by longshore drift, these results are not assured. Winter storms and high energy waves could remove and disperse even coarse material seaward or pulverize it into smaller particles for wider dispersion. Dispersion of the coarser sand to the west by longshore drift could result in shoaling which would block periodic tidal connections which occur between the sea and the mangrove covered wetlands.
n structure toward the west boundary--designed to stabilize and hold the fill material in place--may contribute to erosion to the west by interrupting natural longshore transport. The wisdom of such an artificial structure ("field designed" on-site), which may interrupt the natural longshore transport of beach sands, is doubtful. Even 1800 Atlantic's own experts criticize it.
y 1982, the U.S. Army Corps of Engineers completed a "Feasibility Report for Beach Erosion Control" with an accompanying Environmental Impact Statement. This report proposed a beach restoration program on the southern shore of Key West consisting of construction of a level beach berm, four feet above MHW and 100 feet wide along the 3,000 foot length of Smathers Beach; and a beach 25 feet wide along 2,370 feet of shoreline east and 3,400 feet west of Smathers Beach. 1800 Atlantic's proposed fill falls within the boundaries of this proposed beach restoration program.
y is the local sponsor of the beach erosion control project described in the Feasibility Report. As late as August 1985, the Mayor of the City sent a letter to DER's dredge and fill supervisor confirming the City's continued support for the overall beach renourishment project. Although 1800 Atlantic suggests otherwise, the City's support of a comprehensive publicly financed beach restoration project along its southern shores (which presumably would assure public access to the restored beaches) is not necessarily inconsistent with its opposition to a relatively small fill project undertaken primarily for the private benefit of the owners, guests, and tenants of an adjacent condominium.
h 1981, the Governor of Florida expressed written support for the Corps of Engineers' beach restoration project, but recommended that, in order to protect the marine environment, "any future beach renourishment be done in an environmentally sensitive manner. (Atl.Exh.19) The Governor's
endorsement of the public beach restoration program does not, however, equate to his endorsement of the particular and more limited private beach project at issue. Even if it did, a gubernatorial expression of support cannot supplant DER's duty to exercise its regulatory authority in accordance with Chapter 403, Florida Statutes (1985).
h fill project proposed by 1800 Atlantic was designed to be consistent with the overall U.S. Army Corps of Engineers beach restoration project described in the Feasibility Report. It should be noted, however, that the Corps project was criticized by federal environmental agencies for adverse impact on seagrass beds and fish and wildlife resources. (Atl. Exh.19, Appendix 3.)
c has already received a coastal construction permit for its proposed project from the Florida Department of Natural Resources ("DNR"). This permit, however, was issued by another state agency exercising regulatory authority under a different statute, with different criteria for issuance.
Cumulative Impact
e no similar applications for beach fill projects in the Lower Keys pending before DER, although inquiries have been made by a nearby landowner.
least the last two years, DER has not issued a permit in the Keys for a fill project similar to the one proposed by 1800 Atlantic.
l may be placed on submerged lands (not previously conveyed to private ownership) without the consent of the Governor and Cabinet, sitting as the Board of Trustees of the Internal Improvement Trust Fund--the owner of sovereignty lands. The Trustees have not approved an application to place beach fill on sovereignty lands in the Florida Keys for the last three years. Nor are there any pending applications for approval to do so. (As already noted, except for the project site, all remaining submerged lands in the Rest Beach area are publicly owned.)
h serves as the staff for and makes recommendations to the Trustees, has a general policy of opposing the creation of unnatural beaches in the Keys on publicly owned submerged lands. As stated by Casey Fitzgerald, Chief of DNR's Bureau of State Lands Management:
[Mr. Fitzgerald]
A. So in a general sense, our recommendations would typically be negative, unless shown for some public interest purpose that it should
be otherwise.
Q. By that latter comment, do you mean, in connection with, for example, an overall publicly sponsored beach restoration project?
A. That would be one example, yes. (e.s.) (Atl.Exh.20; p.8)
Whether the Proposed Fill Would be Clearly in the Public Interest
y for a DER permit, 1800 Atlantic must provide "reasonable assurance that the project will be clearly in the public interest." Section
403.918(2), Fla.Stat. (1985). In deciding whether a project is "clearly in the public interest," several statutory criteria must be considered and balanced.
The issue though broadly phrased--is fundamentally a factual one, and must be decided on a case-by-case basis. 6/ Section 403.918(2)(a) Fla.Stat. (1985).
d in light of the seven statutory criteria, it must be concluded that the applicant has failed to show that the proposed fill would be "clearly in the public interest."
t should not cause violations of water quality standards or significantly degrade state waiters. Neither should it adversely affect (1) the public health, safety, or welfare, or the property of others; (2) endangered or threatened species, or their habitats; (3) navigation or the flow of water; or
(4) significant historical material and archaeological resources. Nevertheless, the project will adversely affect the conservation of fish and wildlife, fishing or recreational values, and marine productivity in the vicinity. The site, which would be permanently covered with beach sand, now provides viable intertidal marine habitat and a feeding ground for migratory, shore and wading birds. It supports numerous species of juvenile fish and crustaceans, a diverse benthic and algae community, and patches of seagrass which benefit water quality and enhance the ecology of the marine environment. This shallow water habitat, gently sloping to the sea from an extended unfortified shoreline, is a diminishing resource in Key West. The existence of other submerged areas which are more biologically productive and support an even greater diversity of marine life do not diminish the positive value of the undisturbed project site to the marine environment.
r adverse environmental impacts could occur. The proposed groin could cause increased erosion on property to the west by interrupting longshore sand drift. Shoaling could block tidal connections which periodically occur in the adjacent mangrove wetlands. Fill sands, pulverized and dispersed seaward by hurricanes or violent winter storms, could smother offshore seagrasses.
y for the fill project has been shown. Though erosion has occurred over the last 25 years, the shoreline is stable, in equilibrium, and protected by a "natural armor" of coarse material and lag rubble. 1800 Atlantic has neither alleged nor asserted that the structural integrity of its upland condominium (still under construction) is threatened. The proposed fill would widen the upland between the condominium and the sea, providing an added degree of protection. While this benefits the upland structures, it is a benefit which would seemingly result whenever a fill project converts submerged land (seaward of a structure) to dry upland. Further, no necessity for an expanded private beach has been shown since there is a convenient 3000 foot public beach within a few hundred feet of the site.
n measures proposed by 1800 Atlantic are insufficient to offset the known and potential adverse effects. These measures are vague, ill- defined, and uncertain. The design of the groin is left to "field engineering;" the adequacy of other mitigation measures is left to future review and decision by DER. The specific location and nature of the upland mitigation site (to be converted to submerged lands) is unknown, as is the amount of the bond to be posted if the beach fill project precedes mitigation.
n expanded beach would provide recreational benefits to the owners, guests and tenants of the upland condominium, it has not been shown that similar benefits would inure to the general public. 1800 Atlantic does not
guarantee that the public will have access to the beach. (It asserts only that any right of access which the public may have will not be infringed.) 1800 Atlantic's affidavit of ownership, which must be taken as true, asserts ownership of the submerged lands presumable by previous conveyance from the Trustees of the Internal Improvement Trust Fund. It is entirely possible that 1800 Atlantic, as owner of the submerged lands and upland beach, could deny access to the general public. 1800 Atlantic has not shown that the general public has any existing right to enter upon and use the submerged lands and existing beach. By promising no greater access right than the public now has, and by failing to show that the public has any existing right to enter and use the submerged lands and shoreline, 1800 Atlantic has failed to demonstrate that its beach project would provide recreational opportunities to the general public.
c benefit asserted by 1800 Atlantic is that the fill would eliminate an existing shoreline discontinuity, a discontinuity that has not been shown to be a significant problem. 1800 Atlantic would replace it with a new discontinuity created by a proposed groin at the west end of the property--a groin with uncertain effects on the shoreline to the west. Another claimed benefit is that needed sediment--of the correct quality and quantity--would be contributed to offshore seagrasses; but whether this would actually occur is uncertain.
c also points out that its privately funded beach restoration project is consistent with and falls within the boundaries of a proposed public beach restoration project proposed by the U.S. Army Corps of Engineers, supported by the Governor, and sponsored by the City. Any public benefit to be derived from this consistency is also doubtful. It was not shown that the Corps of Engineer's project involving Smathers Beach and Rest Beach has been finally approved and funded, or when (if at all) it would take place. Federal environmental agencies have pointed out the adverse environmental effects of such a project. A main benefit of the Corps project--expanded beach recreational opportunities for the general public--has not been shown to be a benefit which would result from 1800 Atlantic's fill project.
, 1800 Atlantic has not affirmatively shown that, on balance, its proposed fill would be clearly in the public interest. The fill would have significant adverse environmental impacts--some certain, others possible. Measures offered to mitigate these impacts are vague, ill-defined, and inadequate. While benefits would inure to private upland owners, guests, and tenants, benefits to the general public are illusive or inconsequential. No necessity for the project has been shown, alternate methods of providing additional protection to the condominium may be available. A Corps of Engineers' beach restoration project for the entire area has been proposed and studied. While such a project would have adverse environmental effects at the 1800 Atlantic site, increased beach recreational opportunities would benefit the general public. 1800 Atlantic has not shown that its beach project would confer a like benefit.
CONCLUSIONS OF LAW
n of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Fla. Stat. (1985).
y and Coalition have standing to initiate this proceeding and contest DER's proposed licensing action since their substantial interests will
be affected by final agency action. Neither DER nor 1800 Atlantic assert otherwise. See Section 120.52(11)(b), Fla.Stat. (1985).
n 403.918(1), Florida Statutes (1985), DER may not issue a dredge or fill permit unless the applicant provides "reasonable assurances" that water quality standards will not be violated. The applicant must also provide reasonable assurances that its proposed project is "not contrary to the public interest." (e.s.) See Section 403.918(2), Fla.Stat. (1985). Rule 17-4.07, Fla.Admin. Code. But if the project significantly degrades or is within an Outstanding Florida Water designated by DER rule, the affirmative evidentiary burden on an applicant becomes more stringent: it must provide reasonable assurances that the project is "clearly in the public interest," (e.s.) Section 403.918(2), Fla.Stat. (1985). In determining whether this criterion is satisfied, DER must consider and balance seven criteria:
Whether the project will adversely affect the public health, safety, or welfare or the property of others;
Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;
Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project;
Whether the project will be of a tempo- rary or permanent nature;
Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provi- sions of s. 267.061; and
The current condition and relative value of functions being performed by areas affected by the proposed activity.
Id. As can be seen, these "public interest" criteria encompass concerns beyond water quality impacts, such as biological resources, marine productivity, conservation of fish and wildlife and recreational values.
applicant fails to meet these criteria, DER must consider any measures proposed by or acceptable to the applicant "to mitigate adverse effects which may be caused by the project." Section 403.918(2)(b), Fla.Stat. (1985). See Smallwood, Alderman, Dix, The Warren S. Henderson Wetlands Protection Act of 1984. A Primer, 1 J. of Land and Environmental Law 255 (1985) ("Thus the question to be asked with respect to any mitigation proposal is whether it changes the balance in the public interest enough to make the project permittable.")
R is required to consider, within given parameters, the "cumulative impacts" of approving a proposed project. Section 403.919, Fla.Stat. (1985). Hence, DER must consider (in addition to any direct impacts of a proposed project): (1) the impacts of other projects which are existing or under construction, or for which permits or jurisdictional determinations have
been sought and (2) the impacts of projects under review, approved or vested pursuant to Section 380.06, or other projects reasonably expected to be located within the affected water, based on land use restrictions. Id.
l project proposed by 1800 Atlantic would take place in open waters of the Florida Keys designated as Outstanding Florida Waters on May 8, 1985. Rule 17-3.041(4)(i), Fla.Admin.Code. Since 1800 Atlantic's application was not complete until August 26, 1985, its application is governed by DER's most stringent environmental standards--those applicable to Outstanding Florida Waters (OFW).
t water quality standards are those which apply to Class III waters, Rules 17-3.051, 17-3.061, 17-3.121, Florida Administrative Code, as well as the additional OFW requirement that existing ambient water quality not be lowered except on a temporary basis during construction, Rule 17- 4.242(1)(a)2., Florida Administrative Code. In the instant case, 1800 Atlantic has provided reasonable assurances that these meet water quality standards.
other hand, 1800 Atlantic has failed to provide reasonable assurances that its fill project will be "clearly in the public interest," as defined by the criteria listed in Section 403.918(2)(a). Although it is unlikely that the project will adversely effect (1) the public health, safety, or welfare, or the property of others; (2) endangered or threatened species, or their habitats; (3) significant historical or archeological resources; or (4) navigation, it will adversely impact fish and wildlife habitat, marine productivity, and recreational values. The shallow water habitat of the submerged lands, which 1800 Atlantic would cover with beach sand, supports a viable and diverse community of plant and marine life, including fish, crustaceans, and benthic organisms. It also is a feeding ground for migratory, wading, and shore birds. A part of one of the last unfortified stretches of shoreline on Key West, it is a favorite place for bird watching. The mitigation measures proposed to offset these adverse effects are ill-defined, uncertain, and insufficient.
, though unlikely, other adverse environmental effects are possible. They include increased erosion and shoaling on property to the west, as well as smothering of off-site seagrasses.
s in vain for any significant public benefits from this project. New beach recreational opportunities would inure to the owners, guests, and tenants of the upland condominium. But no showing has been made that the general public would share in these opportunities. As to the claimed benefit of elimination of a shoreline discontinuity the project would create a new one (the groin structure) and, potentially, more discontinuity to the west.
d for the project has been shown. The shoreline is stable and in equilibrium, protected by a natural armor 25 years in the making. Upland structures have not been shown to be in danger of being undermined. To the extent the applicant seeks to provide an added degree of protection from the sea (by widening the existing upland buffer zone) it has not shown that there are no reasonable alternative means to accomplish this result, means not requiring destruction of marine and wildlife habitat.
f the requested permit would not, however, have adverse cumulative impacts within the meaning of the statute, since these no similar projects existing or under construction. Neither has it been shown that other
like projects are reasonably expected in the future. (The City and Coalition have only shown that one nearby property owner has made "inquiries" to DER.)
Based on the foregoing, it is RECOMMENDED: that the application for a fill permit and water quality certification filed by 1800 Atlantic be DENIED, based on failure to provide reasonable assurances that the project is clearly in the public interest.
DONE and ORDERED this 3rd day of September, 1986, in Tallahassee, Florida.
R. L. CALEEN, JR. 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 3rd day of September, 1986.
ENDNOTES
1/ This affidavit, together with unrefuted corroborating testimony at hearing, is sufficient to establish ownership for the purposes of this proceeding. In any event, DER cannot adju- dicate title disputes and any DER permit does not grant an appli-cant the right to enter or alter another's property without consent. See Charlotte County v. Little Princess Investment and DER, 8 FALR 2335 (1986).
2/ Fox, as the statewide director, becomes involved in individual permitting decisions only when they are controversial or involve a matter of policy. (Tr.608)
3/ Section 120.57(1), Florida Statutes (1985).
4/ There is conflicting testing on whether any seagrasses other than Halodule wrightii are found on the site. The testimony of Renate H. Skinner, Ph.D., a qualified expert marine biologist employed by DNR, is accepted as persuasive. She visited the site two days before hearing; her inspection was fresh in her mind. At low tides she walked the area and observed shoalweed and turtle grass approximately 30 feet seaward of the MHW line. She evidenced no discernible bias. She testified because she was subpoenaed; she was employed by no party in this case, and her testimony reflected her own independent observations. (Tr.
569-570)
5/ Although Dr. Voss and his assistants saw no birds on the site during their 6-hour visit, testimony of other observers about abundant bird life in the area is persuasive.
6/ See, Shablowski v. Department of Environmental Regulation 370 So.2d 50, 54 (Fla. 1st DCA 1979).
APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1216
RULINGS ON DER'S PROPOSED FINDINGS OF FACT 7-11. Approved in substance.
12. Approved in substance, except for the suggestion that
the applicant and DER agreed to and presented at hearing a mitigation measure requiring that a parcel of upland at least twice the size of the 1/2 acre fill site be converted to submerged intertidal land. To the extent this is suggested, it is rejected as contrary to the evidence.
13-23. Approved in substance.
Approved, subject to modification that it is unlikely that offshore seagrasses would be smothered by sand migration; the possibility, however, exists.
Rejected as speculative and problematic.
Approved but modified to reflect that the design of the groin is ill-defined and it is possible that it would interrupt natural longshore sand drift.
27-30. Approved in substance.
31. Approved, but modified to reflect that, nevertheless, harmful erosion and shoaling is possible, a finding which should be weighed in the context of the statutory criteria.
32-34. Approved.
Approved but modified to add that several of the mitigation measures are ill-defined and a determination of their sufficiency awaits submittal and review at some future date.
Rejected as contrary to the greater weight of the evidence. The off-site mitigation in evidence is ill- defined, the amount of bond uncertain, and the upland to be converted to submerged land is approximately 1/2 acre--equal in size to the submerged land to
be filled. (The offer to convert an area twice the size of the fill was an unauthorized post-hearing exhibit at variance with evidence in the record, and is disregarded.) Reduction in shoreline discontinuity will be accompanied by creation of at least one new discontinuity, and possibly others. While the
public sidewalk will be shored-up, this is the responsibility of public authorities. Renourishment of adjacent seagrasses is a possibility, but has not been shown to be certain or even probable.
37-40. Approved.
RULINGS ON 1800 ATLANTIC'S PROPOSED FINDINGS OF FACT 1-10. Approved in substance.
11. Approved, except exposure is windward, not leeward.
12-13. Approved in substance.
14. Approved in substances except for third sentence, which
is rejected as contrary to the evidence; the existing shoreline will continue to erode.
COPIES FURNISHED:
William H. Westray 1401 Sunset Drive
Key West, Florida 33040
Leonard F. Mikul, Esquire
P.O. Box 1262
Key West, Florida 33041
Douglas M. Halsey, Esquire Evan K. Kaplan, Esquire
4900 Southeast Financial Ctr.
200 S. Biscayne Blvd. Miami, Florida 33131-2363
Douglas H. McLaughlin, Esquire 2600 Blairstone Road
Tallahassee, Florida 32301
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION
FLORIDA KEYS CITIZENS COALITION AND CITY OF KEY WEST, | ||
Petitioner, | OGC FILE NOS. | 86-0347 |
86-0387 | ||
vs. | DOAH CASE NO. | 86-1216 |
1800 ATLANTIC DEVELOPERS and | ||
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondent.
/
FINAL ORDER
On September 3, 1986, a hearing officer from the Division of Administrative Hearings submitted to me his Recommended Order in the above-styled case for final agency action. A copy of that Recommended Order is attached as Exhibit A. Pursuant to Section 120.57(1)(b)9., Florida Statutes, and Florida Administrative Code Rule 17-103.200(1), all parties to the proceeding were allowed 10 days in
which to file exceptions to the Recommended Order. Respondent Department of Environmental Regulation ("Department") timely filed exceptions to the Recommended Order on September 15, 1986. Respondent 1800 Atlantic Developers ("1800 Atlantic") timely filed exceptions to the Recommended Order on September 18, 1986, along with a memorandum in support of the exceptions. Copies of the exceptions and memorandum are attached as Exhibits B, C, and D respectively. As allowed by Florida Administrative Code Rule 17-103.200(1), Petitioner Florida Keys Citizens Coalition ("Coalition") filed a response entitled "Comments" on 1800 Atlantic's exceptions and memorandum. The Department also filed a response to 1800 Atlantic's exceptions. Both exceptions were submitted in a timely manner on September 29, 1986, and are attached as Exhibits E and F respectively. On October 8, 1986, 1800 Atlantic submitted a document entitled its "Reply to DER's Response to Exceptions," attached as Exhibit G. Thereafter, the Recommended Order came before me as Secretary of the agency for final agency action.
BACKGROUND
This proceeding involves an application by 1800 Atlantic, the developer of a 168-unit condominium located at 1800 Atlantic Boulevard in Key West, Florida, for a permit to construct a beach facing the Atlantic Ocean off Key West; a jetty on the east end of the beach; a fishing pier on the west end of the beach; and an art display platform seaward of the new beach. The application was submitted on April 19, 1985, but was not considered complete until August 26, 1985. In the interim, the waters within which the fill project was proposed were designated Outstanding Florida Waters pursuant to Florida Administrative Code Rule 17-3.041(4)(i), effective May 8, 1985. On September 5, 1985, the Department issued a notice of intent to deny the application. On March 27, 1986, in response to changes to the proposed project made by 1800 Atlantic, the Department reversed its position and gave notice of its intent to issue the requested permit. The Coalition and the City of Key West ("City") timely requested a formal administrative proceeding pursuant to Section 120.57(1), Florida Statutes, to contest the proposed issuance. The Department granted these requests and forwarded them to the Division of Administrative Hearings. A formal administrative hearing was thereafter held on the application from June
25 through June 27, 1986. On September 3, 1986, the hearing officer issued his Recommended Order that the permit application be denied based upon the applicant's failure to provide reasonable assurances that the project is clearly in the public interest.
RULING ON EXCEPTIONS
Respondent 1800 Atlantic has submitted thirty exceptions to the Recommended Order's Findings of Fact (there is no exception number 28) and three exceptions to the Recommended Order's Conclusions of Law. I shall respond individually to each exception by number corresponding with the numbered exception.
1800 Atlantic Exceptions
Exception 1: The first exception of 1800 Atlantic is to the hearing officer's statement that representatives of the Department and 1800 Atlantic met in Tallahassee on Friday. June 20, 1986, and that neither the City nor the Coalition were aware of or invited to the meeting. The basis for this exception is that the transcript (T. 122) discloses that the meeting occurred in Key West and that there was no sworn testimony to support the lack of an invitation to either the City or the Coalition. The issue of when, where and who attended or was invited to any settlement discussions is irrelevant to the merits of 1800
Atlantic's pending dredge and fill permit application. Settlement negotiations are a recognized and necessary aspect of the litigation process. They should not be a subject of scrutiny in an administrative proceeding unless they result in some new proposed agency action creating a point of entry into a new Section 120.57, Florida Statutes, administrative proceeding. See Manatee County v.
Department of Environmental Regulation. 429 So.2d 360, 362 (Fla 1st DCA 1983). No party asserted that the negotiations created such a new point of entry. I do not need, therefore, to determine whether the hearing officer's findings in this regard were based upon competent substantial evidence. In as much as such finding would have no bearing on the merits of this case. Therefore, I reject this exception as being irrelevant to the outcome of this proceeding. Let me add, however, that such negotiations, however characterized by the parties, may have a bearing on how the Department should address any subsequent permit application by 1800 Atlantic. I shall discuss this in further detail below at the end of my response to the next series of exceptions.
Exceptions 2, 3 and 4: I shall address exceptions two, three, and four together because my response will be basically the same for each of these exceptions. The exceptions address the adequacy of new items offered by 1800 Atlantic to supplement its pending permit application in response to discussions undertaken with the Department shortly before the hearing. A portion of those discussions have already been noted in my response to exception one. In exception two, 1800 Atlantic complains of the hearing officer's finding that the specifications for 1800 Atlantic's proposed groin structure lacked sufficient specificity for proper scrutiny when submitted at the administrative hearing.
In exception three, 1800 Atlantic objects to similar criticisms of lack of specificity directed towards the dimensions of the toe of the proposed fill in the western half of the proposed fill area. In exception four, 1800 Atlantic objects to the hearing officer's findings regarding the proposed off-site mitigation: that the site lacked specificity as to its size or location; and that in offering a bond of an unspecified amount to guarantee performance of mitigation, the applicant failed to provide reasonable assurances that mitigation would in fact occur if the filling were to precede the mitigation. In response to the hearing officer, 1800 Atlantic asserts that it provided sufficient specificity through testimony at the administrative hearing and then through subsequent reduction of the changes to written form as conditions in a new intent to issue (Department Exhibit 7) filed subsequent to the hearing.
That exhibit contained permit conditions not set forth in the previous intent to issue, including those the subject of these objections. In conjunction with these exceptions 1800 Atlantic filed a memorandum (Exhibit D) in which it complains of the hearing officer's statement that "APA [Administrative Procedures Act] processes are frustrated" by the lack of detail at the hearing and consequent lack of scrutiny accorded these new conditions.
Even if 1800 Atlantic is correct in its assertion that the hearing officer's APA characterizations "are not proper findings of fact," this does not necessarily render his factual findings invalid. The record indisputably reflects that the Department and 1800 Atlantic engaged in negotiations shortly before the hearing regarding the permittability of the project after the Department had indicated reservations regarding the project, as evidenced by the Department's submission approximately a week prior to the hearing of a pre- hearing statement indicating that it could not support issuance of the permit.
As a result of these negotiations, the Department and 1800 Atlantic agreed among other things to the following additional permit conditions to overcome the Department's objections to the project:
Relocation landward of the toe of the proposed fill adjacent to the westerly one-half of the shoreline, beginning at the approximate midpoint of the proposed beach fill and extending to the western end of the beach fill, along with staking the entire toe of the fill;
Placement of a groin type structure along the western end of the beach fill no further than the waterward extent of the fill, at a height no greater than slightly above the proposed fill elevations, which structure would be constructed of natural rock rubble obtained from the site:
Relocation by hand of rocks containing algae from inside to outside the proposed fill areas at locations acceptable to the Department;
Relocation of the Halodule grassbed located within the limits of the proposed fill to an unvegetated sand area acceptable to the Department waterward of the fill area; and
Excavation of an existing uplands site somewhere within the boundaries of the Florida Keys Outstanding Florida Waters to subtidal/intertidal elevations similar to the existing area to be filled, along with acquisition of a bond to insure compliance if filling occurs first, and establishment of an appropriate mechanism (e.g., conservation easement or title transfer) to insure that the mitigation remains in effect. These provisions were the subject of testimony at the administrative hearing and were subsequently reduced to writing in the previously mentioned intent to issue submitted subsequent to the hearing as the Department's Exhibit 7. The new intent to issue also required the permit applicant to submit detailed dimensions and scaled sketches of the newly configured fill, the groin structure, and the relocation of the algae encrusted rocks.
As I previously indicated, settlement negotiations are a necessary part of the permit application process. I am concerned that such negotiations might be construed as a "frustration" of the administrative process. Some balance must be found, however, between the advantage of continuing to negotiate to achieve better results for the environment, and fairness to opponents of resulting settlements, who need adequate specificity of the settlement terms to decide whether and how to challenge them, as well as adequate time to formulate the challenge. One remedy to any potential surprise, of course, is to ask for a continuance. In this case, the permit opponents declined to avail themselves of the opportunity to ask for such a continuance. It remains the obligation of the permit applicant, however, to demonstrate the necessary reasonable assurances that the proposal, including most recent amendments, provides the necessary reasonable assurances required by Section 403.087, Florida Statutes, for permit issuance. Had the proposed changes the requisite detail to provide such reasonable assurances, the permit opponents could not have been heard to complain of surprise, since they declined the opportunity to request a continuance.
At this hearing the hearing officer found such specificity to be lacking. In this regard I am bound by the findings of fact of the hearing officer unless such findings of fact are not based upon competent substantial evidence.
Section 120.57(1)(b)9., Florida Statutes. While the hearing officer's statement regarding frustration of the administrative process may be a legal conclusion, that conclusion is buttressed by findings of fact supported in the record. The hearing officer found that the change in fill specifications from the original proposal was explained by a freehand sketch made in conjunction with testimony at the hearing, and that the groin structure would be field engineered to
conform with a changed configuration of uncertain dimensions. This contrasted to the prior application, which contained a detailed diagram of the shape and location of the fill area but no groin drawing because no groin was contemplated. While 1800 Atlantic describes these revisions as minor, that description itself is qualitative in nature. Adequacy of specificity is a necessary component to reasonable assurances. To the extent that 1800 Atlantic has failed to provide the requisite specificity to satisfy the hearing officer that the sizes of the fill site or the groin structure were sufficiently described to provide such reasonable assurances, such a decision can be supported by the record of this case, and I am bound to follow it. A similar conclusion would apply to the off-site mitigation proposed.
With regard to specificity, 1800 Atlantic notes that the hearing officer accepted into evidence over objection the Department's Exhibit 7, in which these and other proposed changes were reduced in writing. The acceptance of such Exhibit, however, need not bind the hearing officer to the probative value of its contents. Once again, the burden was upon 1800 Atlantic to prove that the new project was adequately described to provide reasonable assurances. Even Exhibit 7, however, deferred to a later date Department approvals regarding specific delineations of the changes. While as a matter of policy I recognize that some projects may require "field engineering" and post-issuance submissions of engineering or similarly detailed drawings, a permit applicant still must demonstrate that the reasonable assurances exist before commencement of the project. The post-permit submissions, therefore, become more in the nature of guarantees that the project will continue to meet requisite standards as designed, as opposed to information designed to establish in the first instance that the project is permittable. In this case, so much hinges upon the size of the project, the nature of the stabilization structures, and the type of mitigation afforded by the applicant that such specificity cannot be postponed as the hearing officer found that it was attempted to be done in this instance. I must therefore reject these three exceptions.
I do recognize that 1800 Atlantic may complain that this result may be unduly harsh, and assert that it is being penalized for making changes at the behest of the Department, which changes were then rejected by the Department after the hearing officer found the changes to be inadequate. The applicant had notice of the Department's change in position, and could have itself asked for a continuance. Such hindsight obviously offers little solace to 1800 Atlantic, however, particularly given the strictures of administrative res judicata. As recognized in Paul & Ellen Thompson v. Department of Environmental Regulation, Case Nos. AZ-337, BD-330, Opinion Filed May 1, 1986, rehearing denied October 6, 1986 (Fla 1st DCA), administrative res judicata can act to authorize the Department to deny a permit application without hearing when the applicant's substantially similar application at the same site has already been denied. In order to avoid too harsh a result to applicant, given that the Department in this case had initially accepted a proposal subsequently found to be inadequately articulated. I hold that in this case administrative res judicata should not be applicable to those parts of the permit application found to be inadequately detailed by the hearing officer, since the Department had originally found those aspects sufficient. In other words, the earlier submission here of an insufficiently detailed application earlier does not bar submission of a more sufficiently detailed application in the future, though I obviously cannot comment on whether the new proposal would be permittable, only that it would be reviewable. As to those aspects for which specific factual findings have been made, however, administrative res judicata would still apply. See Kehn, Bishop and Myakka Valley Ranches Improvement Association, Inc. v. City
of Sarasota and Department of Environmental Regulation. OGC File No. 85-0663. Department of Environmental Regulation Final Order dated September 12, 1986.
Exception 5: The next exception is based upon the hearing officer's statement that the designation of the waters in the area of the project as Outstanding Florida Waters imposes "DER's most stringent level of protection from degradation of water quality, loss of fish and wildlife habitat, and reduction in marine productivity." 1800 Atlantic characterizes this statement an erroneous conclusion of law improperly denominated as a finding of fact.
However the hearing officer's statement may be characterized, it is essentially correct. Section 403.918(2), Florida Statutes, provides as follows:
[A dredge and fill] permit may not be issued, unless the applicant provides the department with reasonable assurance that the project
is not contrary to the public interest. However, for a project which significantly degrades or is within an Outstanding Florida Water, as provided by department rule, the applicant must provide reasonable assurance that the project will be clearly in the public interest.
Subsection (a) then provides seven factors to consider in determining whether the public interest test can be met:
Whether the project will adversely affect the public health, safety, or welfare or the property of others;
Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species or their habitats;
Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project;
Whether the project will be of a temporary or permanent nature;
Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061; and
The current condition and relative value of functions being performed by areas affected by the proposed activity.
Obviously, the public interest test will be more "stringent" when the issue is whether the project is clearly in the public interest as opposed to not contrary to the public interest. The hearing officer's characterization of the rule as the most stringent level of protection, therefore, is essentially correct, since the public interest factors include water quality, fish and wildlife habitat, and marine productivity, as noted by the hearing officer. While 1800 Atlantic criticizes the hearing officer for concluding that this interpretation and
corresponding Florida Administrative Code Rule 17-4.242 would prohibit the issuance of a permit for any activity in an Outstanding Florida Water which may result in a loss of fish or wildlife habitat or reduction in marine productivity, that statement does not appear in the Recommended Order. It is only an inference by 1800 Atlantic. If there is quantifiable loss, however, such loss would tip the balance against permitting such a project unless other public interest considerations clearly outweigh the impacts of such a loss.
This exception must, therefore, be rejected.
Exception 6: The hearing officer's conclusion that there are patches of seagrass in the fill area other than one small patch of Halodule forms the basis for 1800 Atlantic's next exception. I can understand the concern of 1800 Atlantic that the hearing officer disregarded the testimony of three expert witnesses, one of whom made five 52 meter straight line transects at the project site, over the testimony of one witness who viewed the fill site from the shore for approximately one hour. I do note, however, that such testimony was not impeached at the hearing. Nevertheless, because of the overwhelming nature of the testimony to the contrary, I am inclined to concur with 1800 Atlantic and accept this exception to the extent that 1800 Atlantic requests that this finding of fact should not be given much weight. Even minimizing such testimony, however, there is no question that the record shows that the proposed fill site is a productive marine habitat. The dispute appears to be over how productive that marine habitat may be. In this regard, since the proposed fill site is in Outstanding Florida Waters, the burden is on the permit applicant to show that any quantifiable diminution in the quality of this marine habitat must be offset by a showing that the filling would result in a net environmental benefit to the area, that mitigation efforts supplementing the filling would create a net environmental benefit, or that application of the seven statutory considerations would otherwise enable applicant to comply with the "clearly in the public interest" Outstanding Florida Waters test. No such showing has been made in this case.
Exception 7: In the seventh exception 1800 Atlantic challenges the hearing officer's finding that the success of transplanting seagrass is not assured.
There is testimony to support this finding, such as the testimony of Curtis Kruer at T-738. Such finding, therefore, is based upon competent substantial evidence, and the exception must be rejected.
Exception 8: 1800 Atlantic objects to the hearing officer's conclusion that the project site could no longer support seagrass communities, by asserting that there is no evidence that seagrasses could not recolonize the submerged portion of the fill. The burden is upon the applicant, however, to show such recolonization would occur as part of its requirement to meet the public interest test, and not upon the opponents to show that recolonization would not occur. Therefore, I cannot accept exception eight.
Exception 9: This exception concerns the receipt into evidence as hearsay of the lists of species catalogued in paragraph 32 of the Recommended Order.
Section 120.58(1), Florida Statutes provides that hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding. Although the species list contained in paragraph 32 may contain individual species whose existence is supportable only by hearsay. There is adequate other probative non-hearsay evidence to support the underlying finding of the hearing officer that "numerous benthic macrofaunal species and diverse species of crustaceans live in the sediment of the inshore rocky algae and seagrass communities." This is supported by the testimony of witnesses Teryl Kranzer, Renate Skinner, and
Curtis Kruer, all of whom were duly qualified as experts to make such observations. This list, therefore, only supplements the general finding of diversity and does not form the original basis for such finding. This exception, therefore, is rejected.
Exception 10: This exception is directed to the hearing officer's finding that "a diversity of 4 is in the upper range of the food habitat." The record clearly supports that there is species diversity both on and off the project site, and that diversity is greater off-site. However accurate the hearing officer's description of that greater diversity may be, it does not detract from the need of the applicant to demonstrate that such diversity is not being measurably reduced, or that mitigation or other public interest considerations offset the reduction. This the applicant did not do. This exception is, therefore, rejected as being irrelevant to the issue before me.
Exception 11: 1800 Atlantic next objects to the hearing officer's statement that the Rest Beach area, including the project site, provides a valuable habitat for migratory birds, wading birds, and shore birds; and that it is one of the last major stretches of uninterrupted shallow water bird habitat in Key West. There is ample testimony from several witnesses as to the presence of a variety of birds on or adjacent to the project area. In addition, there is testimony to support that the habitat is unique in the Key West area (T-645), and is a feeding ground for birds. (T-717.) I must reject this exception, therefore, in that the hearing officer's findings are based upon competent substantial evidence.
Exceptions 12, 13, and 14: The next series of exceptions relate to the hearing officer's findings that the beach and shoreline of the project site are currently stable and at equilibrium; that the proposed fill will not prevent continued erosion (though at the same time 1800 Atlantic's upland condominium is not endangered by erosion or waves); and that a possible benefit arising from the project, stabilization of a public sidewalk, is part of public maintenance duties anyway. The testimony of Curtis Kruer shows support in the record for the hearing officer's finding that the existing shoreline is currently a relatively stable area and that the addition of fill would make that shoreline less stable. (T-745.) This conclusion was also supported by Dr. Kenneth Echternacht, qualified as an expert in hydrographic engineering. (T-472-3.) Therefore, there is competent substantial evidence to support the hearing officer's conclusions. I do agree that protection of a public sidewalk and road could be considered a net public benefit for consideration in the "clearly in the public interest" test, notwithstanding the hearing officer's observation that such projects are part of public road maintenance duties. In this case, such protection should not be given great weight, however, since there is no showing that the filling proposed is a necessary component of protecting the sidewalk and road. Clearly the public interest is greater when a particular activity is the only available means of protection, as opposed to only one option that may be more environmentally intrusive, than other options such as regular road maintenance. Therefore, I must reject these exceptions.
Exception 15: This objection is to a negative finding, that 1800 Atlantic has neither alleged nor shown that its upland condominium is in danger of erosion or high energy wave action. While I agree with 1800 Atlantic that it is not required to show endangerment to its upland property as a condition of obtaining a permit, any protection afforded by such filling certainly could have a bearing on the consideration of whether a project is clearly in the public interest. Since the hearing officer found upon competent substantial evidence, that the shoreline was in equilibrium, the effect of this finding is simply to
indicate that such public benefit consideration is not available to 1800 Atlantic. This exception is therefore rejected.
Exception 16: I must agree with 1800 Atlantic's statement in this exception to the extent that it infers that 1800 Atlantic is required under any circumstances show the absence of less environmentally intrusive methods for stabilizing its shorelines. The Department does not require, as a condition of obtaining a permit, that no alternative means for a site development are available. While I therefore accept this exception to that extent, the failure of 1800 Atlantic to show the absence of alternative methods does not ultimately affect the outcome of this proceeding, in that the project fails on its own merits, and not on the applicant's failure to exhaust alternatives. Let me further observe that while an alternatives analysis is not mandated, other less intrusive alternatives may have an impact on the balancing involved in the public interest test. Thus, where a project has both environmental problems and (for example) public welfare benefits, an analysis of alternatives may become relevant to finding a way to tip public interest considerations in favor of permittability.
Exception 17: The applicants' next exception is to the hearing officer's finding that the groin structure may cause more erosion. A discussion of the hearing officer's finding and 1800 Atlantic's exception to it have essentially been covered in response to exceptions two, three, four, twelve and thirteen, and are rejected for the reasons set forth in my discussion of those exceptions.
Exception 18: 1800 Atlantic excepts the hearing officer's finding in paragraph 47 that the evidence is insufficient to eliminate the possibility that constant wave action could gradually pulverize the coarse limestone fill into smaller particles that when dispersed could smother seagrass beds immediately off-site to the west and also cause shoaling. I agree, as 1800 Atlantic infers, that the standard of proof involved in establishing reasonable assurances is not to eliminate all contrary possibilities, but to provide reasonable assurances.
The hearing officer goes on to explain in paragraph 48, however, the dangers resulting from the coarse material being pulverized and drifting to sea. His overall discussion is supported by testimony from Mr. Kruer that the sand will break down, drift off-site and smother seagrass. (T-748.) I must conclude, therefore, that while the hearing officer may have been somewhat inartful in his statements, substantial competent evidence exists to support his finding and to reject this exception.
Exception 19: 1800 Atlantic objects to the hearing officer's finding that the City's support of comprehensive publicly financed beach restoration is not necessarily inconsistent with its opposition to a relatively small fill project undertaken primarily for private benefit. I agree with 1800 Atlantic that this finding of fact is irrelevant in this case, and so I do not need to decide whether it is erroneous. The issue before is not whether the City supports or rejects this project, but whether 1800 Atlantic has provided reasonable assurances that it is entitled to a dredge and fill permit. An overall plan for beach renourishment may possibly have some bearing on the "clearly in the public interest" test. No specific plan is before me at this time. However, and the motives behind the City's opposition are clearly beyond my purview. I therefore find this exception irrelevant.
Exception 20: 1800 Atlantic objects to the hearing
officer's statement regarding the Governor's endorsement of public beach restoration. As with exception 19, the issue of the Governor's generalized endorsement has no bearing on the permittability of this particular project,
which at any rate appears to propose beach construction rather than beach restoration. This exception, therefore, is also rejected as irrelevant.
Exception 21: As with the preceding two exceptions, this one relates to the activities of another governmental entity, the Army Corps of Engineers.
1800 Atlantic objects to a finding of Corps criticism of the project. The issue before me is not whether the Corps thinks that this project is good or bad, but whether this project deserves a permit on its own merits. This exception, therefore, is rejected as irrelevant for the same reason as the preceding two.
Let me add, however, with regard to all three of these exceptions, that approval or support of a specific dredge and fill project by various governmental entities other than the Department could have some bearing on whether the project is clearly in the public interest. General policy statements of support or opposition to similar types of projects, however, are too unspecific to have any bearing on the public interest issue.
Exception 22: 1800 Atlantic objects that paragraphs 59 and 60 are conclusions of law that have been improperly included in the finding of facts section of the Recommended Order. The statements contained in those paragraphs, which basically restate the law as set forth in Section 403.918(2), Florida Statutes, and include a comment that the "clearly in the public interest" test is fundamentally a factual one. However, these statements might be denominated by the hearing officer, they are correct statements of the law and of Department policy. Exception 22, therefore, is rejected.
Exception 23: 1800 Atlantic objects to the hearing officer's finding that the project will adversely affect the conservation of fish and wildlife, fishing or recreational values, and marine productivity in the vicinity. In this exception 1800 Atlantic emphasizes that comparatively low levels of diversity exist in the shallow water habitat of the fill area, and that to state that the fill area supports a diverse community is "misleading." Whatever the specifics may be as to diversity index numbers, the extent of seagrasses, and so forth, evidence clearly exists in the record, as found by the hearing officer, to support the finding as he stated it:
The site, which would be permanently covered with beach sand, now provides viable intertidal marine habitat and a feeding ground for migratory, shore and wading birds. It
supports numerous species of juvenile fish and crustaceans, a diverse benthic and algae community, and patches of seagrass which benefit water quality and enhance the ecology of the marine environment.
This shallow water habitat, gently sloping
to the sea from an extended unfortified shore line, is a diminishing resource in Key
West. The existence of other submerged areas which are more biologically productive
and support an even greater diversity of marine life do not diminish the positive value
of the undisturbed project site to the marine environment.
This finding goes to the crux of the "clearly in the public interest" test. While the various parties to this action may argue over degree of diversity, not even the permit applicant suggests that the proposed project site is sterile or
that filling will have a de minimus effect on habitat in the project area. The record clearly supports the hearing officer's finding that the project will adversely affect the conservation of fish, wildlife and marine productivity both within the project area and in the vicinity of it. These considerations must be addressed pursuant to Section 403.918(2), Florida Statutes, in determining whether this project will be clearly in the public interest. Based upon the hearing officer's findings I conclude the permit applicant has failed to provide reasonable assurances of any of the following:
That the site of the fill project will provide marine or other habitat at a level substantially equivalent to what currently exists at the fill site;
That off-site mitigation in the vicinity of the fill site will compensate for loss of habitat at the site;
Or that mitigation efforts in some other area of the Keys can make up for the habitat loss at the site. Because the permit applicant was unable to demonstrate that the filling project by itself would provide an environmental benefit that is at least equivalent to existing site conditions, the statute requires the applicant to make some other showing to demonstrate that the proposed project is clearly in the public interest, since the project is proposed in an Outstanding Florida Water. In this regard, both mitigation in the vicinity and miles away were found to be too inadequately detailed to meet the reasonable assurances test. While the applicant complains of the hearing officer's analysis of recreational values, another statutory balancing consideration, I cannot say that the construction of a beach is in itself a positive recreational value, inasmuch as it may be offset by a loss of recreational values associated with fishing, bird watching, snorkeling and other types of activities for which the existing habitat may be better suited.
Similarly, although beach creation or renourishment may have public interest considerations associated with the protection of public or private property, an applicant must first demonstrate, as was not done here, the need for such protection in the first place. The burden ultimately is on the permit applicant to provide reasonable assurances that the balancing factors described in the statute establish that the project is clearly in the public interest, and in this case 1800 Atlantic has failed to meet that burden. I must, therefore, reject this exception.
Exception 24: 1800 Atlantic calls paragraph 62 of the Recommended Order "rank speculation." The statements in this paragraph, however, are simply restatements of previous findings that have already been addressed in the exceptions and my responses to the exceptions (see, e.g., paragraph 17 and references). This exception is, therefore, rejected.
Exception 25: The next objection is to the hearing officer's statement that the applicant has shown no "necessity" for this project. While I agree with the inference of the applicant that necessity is not a condition precedent to obtaining a permit. I cannot conclude, as does 1800 Atlantic, that the issue of necessity has no legal relevance in this case. Necessity may come into play in the consideration of an applicant's entitlement to a dredge and fill permit, particularly in an Outstanding Florida Water. If there are environmental problems associated with the project, as the hearing officer found in this case, then the issue of necessity may have a bearing on the "clearly in the public interest" test applicable to Outstanding Florida Waters. If, for example, the dredging and filling is designed to prevent serious destruction to property, this may be the type of necessity that has an effect upon the balancing test.
As discussed previously, there is competent substantial evidence to support the
hearing officer's conclusion that this site is in equilibrium and that no such necessity of this type exists. In the negative sense, therefore, this finding is relevant to the permittability of this project, and this exception must be rejected.
Exception 26: 1800 Atlantic takes exception to paragraph 64 of the Recommended Order, which is simply a restatement of previous findings that have been discussed at length in these exceptions (e.g., discussion in exceptions two, three and four). This exception, therefore, must be rejected.
Exception 27: 1800 Atlantic next objects to paragraph 65 of the proposed Recommended Order, in which the hearing officer discusses the failure of 1800 Atlantic to demonstrate that its beach project will provide recreational opportunities to the general public. The applicant is correct in its analysis of Grove Isle, Limited v. Department of Environmental Regulation, 454 So.2d 571 (Fla 1st DCA 1984), and subsequent legislative history surrounding the enactment of the Warren Henderson Wetlands Protection Act in 1984, to the extent they establish that an applicant's failure to guarantee public access is not a valid reason by itself for rejecting a permit application in an Outstanding Florida Water. Assuming an applicant passes the balancing test for the seven criteria set forth in Section 403.918(2)(a), Florida Statutes, it is irrelevant whether or not the proposed site will make provision for public access. I must accept this exception to that extent, therefore. This does not mean, however, that 1800 Atlantic is now entitled to its permit. Other considerations previously discussed - particularly, the problems with diminished marine and wildlife habitat, the inadequately specified nature of the changes to the project application, and the ill-defined nature of the mitigation proposals - are sufficient by themselves to support denial of the permit notwithstanding the hearing officer's misapprehension of the public interest test. Let me add that I am not excluding public access altogether from consideration in determining whether a project is clearly in the public interest. If there are some environmental problems associated with the project, the fact of creation of public access to a public resource where one does not now exist may have some bearing on whether the project is clearly in the public interest. This does not mean, however, that failure of an applicant to provide public access is a basis upon which a permit application can be denied. To the extent the hearing officer infers this to be the case, such inference is rejected.
Exception 29: This is essentially a restatement of previous exceptions (e.g., two, three and four) that have already been rejected, and is therefore rejected as well.
Exception 30: 1800 Atlantic objects to the hearing officer's characterization of the public-benefit resulting from any consistency between the proposed project and the proposed overall Key West beach renourishment project as "doubtful." The status of any other beach projects in the area is speculative, as no permits have been granted for any such projects. As this hearing clearly indicates, issuance of any such permits can hardly be considered a foregone conclusion. Any conclusion that there is a public benefit resulting from the project in this case as a result of the overall Key West project is at this point too speculative to be considered. Exception 30, therefore, is rejected.
Exception 31: This exception is essentially an objection to a summary statement of the previous findings in his Recommended Order, all of which have already been discussed by me in detail. This exception, therefore, is rejected for the reasons previously stated.
Exception 32: With exception paragraph 32, 1800 Atlantic begins its exceptions to the Recommended Order's Conclusions of Law. This exception does not seem to bear any relationship to the content of paragraph six of the Conclusions of Law, the paragraph to which the exception is directed. Whatever the paragraph this exception was intended to address, the content of this exception has been previously discussed in response to exception five. To repeat, I agree that the Outstanding Florida Water designation does not impose a blanket "non-degradation" standard with respect to environmental criteria other than water quality. Nevertheless, any quantifiable environmental degradation would start tipping the scale against permittability, thereby triggering the balancing test set forth in determining whether a project is "clearly in the public interest."
Exception 33: This exception is essentially an objection to the hearing officer's summary of previous findings contained in earlier paragraphs in the Recommended Order, and discussed previously in detail in preceding exceptions and my responses to them. Whether characterized as a findings of fact or conclusion of law, the same reasons as set forth previously form the basis for upholding this conclusion of law. This exception, therefore, is rejected.
Exception 34: This exception covers essentially the same ground as previous ones, including exceptions 25 and 31, in which the applicant criticizes the hearing officer's analysis of the public interest test and how the test is affected by public benefits such as public access. As I stated previously, the necessity of providing public benefits is irrelevant to the issue of whether an otherwise permittable project can be rejected, but may have some bearing as to whether an otherwise unpermittable project may be permitted. Therefore, while I may accept 1800 Atlantic's statement that there is no requirement that the project confer a public benefit in order to meet the statutory test, the project still would have to meet the public interest test. Since the public interest test has not been met, I cannot reverse the hearing officer's findings based upon his misapplication of a "public benefit" test. This exception, therefore, is rejected.
Ruling on Exceptions of the Department
The Department filed two exceptions to the hearing officer's Recommended Order in this case. They shall be addressed individually:
Exception 1: The Department first objects to the hearing officer's failure to consider and weigh the public interest benefit concerning the proposed project's stabilization of the public sidewalk and street to the east of the site, which is presently subject to erosion. This exception is similar to 1800 Atlantic's exception 14, already discussed above, and my previous response to that exception is adopted herein. This exception, therefore, is rejected.
Exception 2: The Department objects to the hearing officer's consideration of whether there is any necessity for the fill project regarding protection of the shoreline and nearby structures. This exception is similar to 1800 Atlantic's exception 25, in response to which I agreed that there is no requirement that an applicant show that a project is "necessary" to be permittable. The Department's exception is discussed from a much different perspective - that necessity is irrelevant because only private property is at issue. I cannot accept this exception because, as I have already explained in response to exception 27, protection of private property interests cannot be
automatically excluded from consideration in the "clearly in the public interest" test.
Ruling on Department's Response to 1800 Atlantic's Exceptions and 1800 Atlantic's Reply
to Said Exceptions
Counsel for the Department, in the Department's response to 1800 Atlantic's exceptions, takes umbrage to a statement contained in the exceptions of 1800 Atlantic regarding discussions by counsel for the Department with 1800 Atlantic prior to the final hearing in this case. Counsel for the Department submitted an affidavit in support of his version of what communications occurred when. In turn, 1800 Atlantic objected to the characterization made by counsel for the Department regarding the settlement negotiations. I do not consider either the Department's response or 1800 Atlantic's reply to have any bearing on the merits of this case. I do not consider it appropriate for counsel for the Department to be submitting an affidavit which attempts to interject new information into the record, and I can understand the desire of 1800 Atlantic to file a reply, even though such reply is not authorized pursuant to Department rules. I am, therefore, disregarding both the affidavit and the reply, and I direct counsel for the Department to limit posthearing pleadings to matters already contained within the record.
SUMMARY AND CONCLUSION
This case is the first one coming before me for a Final Order in which I have had to explain Department policies regarding the permitting of beach construction projects in Outstanding Florida Waters under the Warren S. Henderson Wetlands Act of 1984, Chapter 403, Part VIII, Florida Statutes. Since this case may influence the review of subsequent beach construction permit applications in Outstanding Florida Waters, including any potential new application at the site addressed in this case, I shall summarize my responses to the significant issues raised by exceptions and add my conclusions as to the appropriate manner for disposition of this case, as follows:
The applicant, 1800 Atlantic, requested a permit to fill in waters of the state off of Key West. On May 8, 1985, those waters were declared Outstanding Florida Waters pursuant to Florida Administrative Code Rule 17- 3.041(4)(i). Since the application was not complete until after that date, review of the application is subject to the stringent criteria set forth for Oustanding Florida Waters.
Pursuant to Section 403.918(2), Florida Statutes, a dredge and fill permit may not be issued unless the applicant provides the Department with reasonable assurances that the project will be clearly in the public interest. In determining whether the project is clearly in the public interest, the Department is required by Section 403.918(2)(a), Florida Statutes, to consider and balance the following criteria:
Whether the project will adversely affect the public health, safety, or welfare or the property of others;
Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species or their habitats;
Whether the project will adversely
affect navigation or the flow of water or cause harmful erosion or shoaling;
Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project;
Whether the project will be of a temporary or permanent nature;
Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061; and
The current condition and relative value of functions being performed by areas affected by the proposed activity.
The hearing officer found that although it is unlikely that the 1800 Atlantic project would adversely affect (1) the public health, safety or welfare, or the property of others; (2) endangered or threatened species, or their habitats; (3) significant historical or archeological resources; or (4) navigation, it would adversely impact fish and wildlife habitat, marine productivity, and recreational values. While I concluded that impacts upon recreation could be viewed both positively and negatively. I otherwise upheld the hearing officer's finding.
When considering net environmental harm or benefit, the Department must look beyond simply whether water quality violations would occur. Public interest considerations began to weigh against this project once it had been established that there would be quantifiable degradation of marine or wildlife habitat other than purely de minimus impacts. Even though the habitat to be damaged or destroyed at the project site may not be as rich as that of the surrounding area, this does not negate the importance of preventing further degradation. The burden is on the applicant to show that the filling activity would not cause further degradation, that the activity would otherwise cause a net environmental benefit, or that other public interest considerations listed among the Section 403.918(2)(a), Florida Statutes, criteria would tip the scales in favor of the project being clearly in the public interest.
In evaluating the clearly in the public interest test, the applicant is correct to the extent that it does not necessarily have to demonstrate that the proposed project would either enhance the environment, have no alternatives that are less damaging environmentally, be necessary, or show a public as opposed to private benefit. These factors may have to be considered, however, once the project proposed has been shown to have the negative environmental impacts found by the hearing officer, or might negatively impact other Section 403.918(2)(a), Florida Statutes, criteria. One way in which the factors may have to be addressed comes under the general rubric of mitigation: The Department is required, pursuant to Section 403.918(2)(b), Florida Statutes, to "consider measures proposed by or acceptable to the applicant to mitigate adverse effects which may be caused by the project" if the applicant cannot meet the seven subsection (2)(a) criteria. Mitigation that enhances the environment, therefore, becomes a consideration once the project is found to cause environmental degradation at the specific location where the filling would occur. Thus, for example, activities to enhance environmental quality in the vicinity of the fill could compensate for the degradation onsite, as long as such activities are clearly defined and guaranteed to provide long term positive results. Environmental enhancement, therefore, does become an issue once
environmental degradation needs to be overcome. As another example, mitigation could be addressed, in analyzing alternatives to an environmentally damaging project, since the type of mitigation that may be most feasible might be limited by which alternative is chosen. Once again, a factor (alternatives) not necessarily required as part of a permit application comes into play once environmental degradation is at issue. In addition to their use in a subsection (2)(b) mitigation analysis, factors such as environmental enhancement, alternatives, necessity and public versus private interest must be considered in the balancing test contained in subsection (2)(a) to determine whether the project would be clearly in the public interest to overcome a finding of negative environmental impacts. Such factors could include, for example, protection of public or private property against harmful erosion; the need for access to obtain recreational benefits; and other considerations of the public health, safety or welfare. It is clearly appropriate, in resolving the subsection (2)(a) balancing test, to address such considerations as less environmentally damaging alternatives, the necessity that a particular project be the means for accomplishing a public welfare goal that is environmentally harmful when other less harmful means exist, or whether an environmentally damaging project will benefit the public at large as opposed to a select few.
In this case the applicant had to show either that no environmental harm as delineated in the statute would come from the project, that other considerations clearly in the public interest existed that outweighed the harm, or that the applicant through mitigation was able to overcome any harm. The hearing officer found that the applicant failed to establish, with sufficient specificity and clarity, that any of these conditions would occur. Those findings are based upon competent substantial evidence, and so I am not at liberty to overrule them.
The hearing officer found that the project as amended including mitigation proposals, lacked the requisite specificity needed to provide reasonable assurances. For the reasons stated above in my responses to the first four exceptions, I believe that res judicata considerations must be addressed. As I previously acknowledged, the hearing officer's finding of lack of specificity came after a settlement had been reached between the Department and 1800 Atlantic on those same issues. The settlement was first presented to the hearing officer and third parties at the final hearing. To avoid an unduly harsh result that could result in application of res judicata to 1800 Atlantic in these specific circumstances, I am holding that this Final Order does not foreclose a further application by 1800 Atlantic to construct a beach at the proposed site. If the applicant subsequently proposes a project that contains the specificity found previously lacking, such application will not be precluded from consideration by the Department on the basis of res judicata, though of course it would still have to be proven worthy of a permit on its own merits. Furthermore, I would be bound by any finding in this Order about specific proposals, environmental quality of the impacted area, or other factual items specifically addressed in this Order.
ORDER
Having considered the hearing officer's Recommended Order and the exceptions and responses to exceptions filed by the parties, it is hereby:
ORDERED:
The hearing officer's findings of facts and conclusions of law are adopted in their entirety in this Final Order except as otherwise set forth in this Order.
The application of 1800 Atlantic Developers for a dredge and fill permit to construct a beach facing the Atlantic Ocean off of their Key West property, originally submitted on April 19, 1985, is hereby denied.
The applicant is not precluded from submitting a new dredge and fill permit application to construct a beach at this site. Specific facts determined in this proceeding will be binding, however, on any subsequent application, except to the extent aspects of the permit application were found to be insufficiently defined, to the extent and for the reasons set forth in this Order.
Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68. Florida Statutes, by filing a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Civil 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 30 days from the date this Order is filed with the Clerk of the Department.
DONE AND ORDERED this 17th day of October, 1986, in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
FILING AND ACKNOWLEDGEMENT
FILED, on this date, pursuant to s. 120.52 Florida Statutes, VICTORIA J. TSCHINKEL
with the designated Department Secretary
Clerk, receipt of which is Twin Towers Office Building hereby acknowledged. 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
C. Hutchinson 10-17-86 Telephone: (904) 488-4805 Clerk Date
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing FINAL ORDER, has been furnished by U.S. Mail to the following persons, on this 17th day of October, 1986.
For Petitioner: William H. Westray FLORIDA KEYS CITIZENS Qualified Representative
COALITION 1401 Sunset Drive
Key West, Florida 33040
For Petitioner: Leonard F. Mikul, Esquire
CITY OF KEY WEST Post Office Box 1262 Key West, Florida 33041
For Respondent: Douglas M. Halsey, Esquire 1800 ATLANTIC DEVELOPERS Evan K. Kaplan, Esquire
4900 Southeast Financial Center
200 South Biscayne Boulevard Miami, Florida 33131-2363
For Respondent: Douglas H. MacLaughlin STATE OF FLORIDA DEPARTMENT Deputy General Counsel OF ENVIRONMENTAL REGULATION 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
DANIEL H. THOMPSON
General Counsel
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Telephone: (904) 488-9730
| Issue Date | Proceedings |
|---|---|
| Sep. 03, 1986 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 17, 1986 | Agency Final Order | |
| Sep. 03, 1986 | Recommended Order | Application for a fill permit and water quality certification denied because Petitioner failed to provide reasonable assurance that project is in public interest. |
