STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JOYCE L. LORD, )
)
Petitioner, )
)
vs. ) CASE NO. 87-3033
) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause came on for hearing in Pensacola, Florida, before P. Michael Ruff, duly designated Hearing Officer. The parties were represented as follows:
APPEARANCES
For Petitioner: Gregory Paul Farrar, Esquire
Paul Shimek, Jr., Esquire
311 North Spring Street Pensacola, Florida 32501
For Respondent: David A. Crowley, Esquire
Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
This cause arose upon a petition and request for hearing filed by the above-captioned Petitioner by which she seeks to contest the Department of
Environmental Regulation's (DER's) Intent to Deny Petitioner's application for a dredge and fill permit. The Petitioner seeks authorization, by that permit application, to construct a bulkhead and associated fill, both back-filling and filling waterward of the bulkhead in waters of the State in and adjacent to Bayou Garcon, in Escambia County, Florida. The Petitioner maintained that she is entitled to the permit based upon reasonable assurances that the jurisdictional, water quality, and public interest standards embodied in Chapters 17-3, 17-4 and 17-12, Florida Administrative Code, will be complied with. In the alternative, Petitioner contends that the Department is estopped from denying her permit as a result of certain actions it took in connection with the permit application, and in connection with the previous permit granted the Petitioner in 1978 (hereafter "1978 permit"). The Department, on the other hand, contends that there is no legal or equitable basis for raising an estoppel, either in connection with the jurisdictional determination made for purposes of the 1978 permit application or as to any action or omission on the part of the Department it engaged in with reference to the permit application at bar. The Department also contends that the Petitioner has failed to demonstrate the necessary reasonable assurances that the water quality and other environmental standards embodied in the rule chapters cited above, and contained
in Sections 403.918 and 403.919, Florida Statutes, will be complied with, so that Petitioner would be entitled to the permit.
The case came on for hearing as noticed at which the Petitioner presented 7 witnesses and 9 exhibits. Petitioner's Exhibits A-C, A-D, F and G were not admitted. The Respondent presented 1 witness and 3 exhibits. Respondent's Exhibits 1 and 2 were admitted. Respondent's Exhibit 3 was only admitted as corroborative hearsay". Section 120.58, Florida Statutes. Additionally, without objection, official recognition was taken of Chapters 17-3, 17-4 and 17- 12, Florida Administrative Code, as well as the Recommended and Final Orders issued in the earlier enforcement case brought against the Petitioner, as a result of noncompliance with the parameters of its 1978 permit. See DER vs.
Joyce L. Lord, DOAH Case No. 82-7073, affirmed, 451 So.2d 956 (Fla. 1st DCA 1984).
The Department made two Motions in Limine at the outset of the hearing, one of which resulted in the exclusion of a portion of the Petitioner's evidence.
The Department's motion to exclude all evidence relating to a "taking" of the Petitioner's property, and all evidence relating to a diminution in the value thereof, if the permit is denied, was granted on the authority of DER vs. Bowen, 472 So.2d 460 (Fla. 1985), affirming, 448 So.2d 566 (Fla. 2nd DCA 1984). The Department also moved in limine to exclude all evidence and testimony relating to the 1978 permit and the jurisdictional determination made in connection therewith on the ground that such evidence was irrelevant in this de novo proceeding. The latter motion was denied only on the basis that the Petitioner would be given an opportunity to put on evidence and testimony to support her claim of estoppel, which issue will be ruled upon in the Recommended Order infra.
At the conclusion of the proceeding, the parties elected to order a transcript thereof and availed themselves of the right to file Proposed Findings of Fact and Conclusions of Law in the form of Proposed Recommended Orders. The parties later stipulated to an extension of time for the filing of those pleadings, and the Proposed Recommended Orders were thereby timely filed after an extended time period. The Proposed Findings of Fact contained therein are addressed in this Recommended Order and again in the Appendix attached hereto and incorporated by reference herein.
The issue to be resolved in this proceeding concerns whether the Petitioner is entitled to the dredge and fill permit at issue and, embodied within that issue, whether the Department is estopped to deny the permit applied for on the basis of actions it took in relation to the 1978 permit and permit proceeding and certain acts and omissions related to the instant permit application on the part of the Department and its employees. Additionally at issue, in resolving the general issues stated next above, is the issue of whether the project, as proposed in the permit application and developed by the testimony and evidence at hearing, will comport with the water quality and public interest standards embodied in the above-cited rule chapters and statutory provisions.
FINDINGS OF FACT
The Petitioner is the record owner of certain contiguous lots in Escambia County, Florida, which were part of a subdivision originally platted and recorded in 1926. Three of those lots, contiguous to each other, are waterfront lots lying along the southern shore of Bayou Garcon in Escambia County. A portion of the northern boundary of those lots, as originally platted and recorded and conveyed to Petitioner, extends beyond the current upland and
into the waters of Bayou Garcon, a Class III Florida Water body. That portion of the lots extending into the bayou is roughly triangular in shape, measuring approximately 125 feet from the northwest corner of the property eastwardly to the shoreline and approximately 40 feet from the northwest corner of the property south to the shoreline. See Petitioner's Composite Exhibit C.
Immediately adjacent to the inundated portion of Bayou Garcon, that is the shoreline, is a so-called "beach berm," consisting of a sand deposit historically built up by wave action. This beach berm is well vegetated, primarily with juncus and also with spartina patens. Immediately landward of this beach berm, and physically separated by it from the open waters of Bayou Garcon, is a so-called juncus marsh. This juncus or salt-brackish marsh is vegetated predominately with black needle rush (juncus roemerianus), which is gradually supplanted by sawgrass (cladium jamaicense) near the junction of the marsh area with the landward upland of the three lots. This marsh area extends almost all the way across all three lots in a region running roughly parallel to the course of the bayou. The marsh area terminates in upland, however, on the most easterly lot so that a portion of that lot's upland runs continuously from the landward boundary along Gorham Road to the edge of the open waters of Bayou Garcon on the waterward edge of the beach berm in question. While the beach berm serves to isolate the marsh area to some extent from the open waters of Bayou Garcon, vegetation is continuous from the marsh across the beach berm to the waters of the bayou in a number of places or for most of its length across the waterward boundary of the three lots in question.
The open waters of Bayou Garcon and the waters present in the marsh do exchange. The evidence was uncontroverted that the beach berm is overflowed by tidal waters during occasional storm tides, during the course of a typical year, and by other unusually high tides, such as Spring tides. The berm appears to be more frequently inundated from a point lying at the northwesterly corner of the three lots even at normal high tides. Thus, although there is some conflicting evidence regarding the frequency with which the waters of the bayou exchange with the marsh waters, there is no question that this exchange of waters does occur and thus that water salinity varies in the marsh and in Bayou Garcon as a result of this exchange and that the various characteristic elements of the marshes' biological productivity are exported to the waters of the bayou thereby.
The marsh and the adjacent littoral zone underlying Bayou Garcon currently perform a number of relevant biological functions. These include the uptake of nutrients from upland runoff, fertilizers, heavy metals and the like and the production of detrital material, which is exported from the marsh during periods of tidal exchange to form part of the nourishment of the estuarine food chain. The marsh and the adjacent littoral zone of the bayou also constitute an important habitat for marine life forms and other wildlife. It constitutes a nursery ground for fish, shrimp, crabs, amphipods, worms, mollusks and other species. The smaller species are in turn fed upon by larger predators such as wading birds, larger fin fishes and the like. The marsh and its littoral zone is thus important to commercial and recreational interests involving fisheries, both sport and commercial.
The Petitioner's proposed project consists of the erection of a bulkhead faced with "riprap" along the northerly boundary of the three contiguous lots, running approximately 125 feet, which boundary and proposed bulkhead would include part of the waters of Bayou Garcon waterward of the current shoreline. The Petitioner then proposes to place 1,745 cubic yards of fill in the area landward of that bulkhead extending across the littoral zone of
the waters of the bayou, across the beach berm referenced above and back-filling the entire marsh to the upland portion of the subject lots. The placement of this bulkhead, riprap and associated back-filling will eliminate essentially all of the biological and ecological functions performed by the marsh, as well as the adjacent intertidal and littoral zones across the water frontage of the three lots. The project, as currently proposed, would replace these functions with a new source of negative impacts to Bayou Garcon, Perdido Bay and related State waters, including the deposition of additional nutrients such as lawn fertilizers and septic tank leachates associated with development, which can fertilize and cause excessive algae growth and resultant retardation of dissolved oxygen levels in the waters involved. Resultant development of the filled lots will cause additional water quality degradation in the form of pesticides and coliform bacteria emanating from septic tank leachate, associated with the upland development.
Development of waterfront land in the Bayou Garcon area has increased in recent years. Much of the development occurring in the past involved filling marshes, such as that involved in the case at bar. Substantial areas of salt marsh have been filled and substantial areas remain in a relatively natural state along the bayou in the area of the proposed project. The cumulative effect of development in the area, that is the bayou, its littoral zone and adjacent salt marshes, of the type and in the manner proposed by the Petitioner, will result in significant degradation of water quality, as well as a substantial loss of the biological functions previously described and delineated in Section 403.918(2), Florida Statutes, with resulting substantial adverse impact on the public interest.
Prior to the filing of the permit application, the Petitioner's consultants met with a representative of the Department at the project site, whereupon the Department's representatives advised them that the Department had certain objections to the project as it was then proposed. They discussed these problems concerning the adverse environmental impact of the project, and the Department proposed modifications, during the free-form review stage of the permit application, intended to lessen the environmental impacts while still protecting the existing shoreline from erosion, which was one of the objects of the Petitioner in applying for the permit. The Petitioner, however, elected not to modify the design of the project to incorporate the changes or all of the changes suggested by DER, so that, after a review of the application the Department issued a notice of its intent to deny it.
A permit had been issued by the Department for the same property on November 9, 1978, which authorized a dredge and fill project similar in scope and configuration to that sought in the instant proceeding, contingent upon receipt of all necessary State and Federal governmental authorizations. The Department did not assert jurisdiction over the subject marsh area at that time, apparently taking the position that there was a break in the continuity of the jurisdictional vegetation across the middle of the beach berm, which constituted a continuous gap across the entire waterward frontage of the property, so as to sever the vegetative connection to State waters. That 1978 permit authorized construction of a seawall along the waterward side of the berm and around a group of trees growing at the northeast corner of the property, immediately proximate to the shoreline. It also authorized the placement of fill landward of the seawall and in the subject marsh area. That marsh area was designated as an area "to be filled" on the relevant permit drawings.
The Petitioner began installation of that project, pursuant to that 1978 permit, in July 1978, after obtaining the necessary authorization from the
United States Army Corps of Engineers on May 18, 1978. Construction continued under the 1978 permit until the Petitioner received a Cease and Desist Order from the Corps of Engineers and a Notice of Violation and an Order for Corrective Action from the Department of Environmental Regulation. Factual details and legal conclusions concerning the enforcement action are summarized in the Recommended Order of Hearing Officer Benton entered May 20, 1983, which was adopted by the Secretary of DER on June 6, 1983, affirmed by the First District Court of Appeal in Lord vs. DER, supra, and officially recognized in this case. As a result of that enforcement action, the Petitioner was allowed to leave the vertical bulkhead around the trees at the northeast corner of her property but was required to remove a promontory that had been constructed by placing unconsolidated fill into the waters of the bayou. The Hearing Officer noted:
"Respondent also contends that permit number 17-11736-IE authorized this deposition of fill west of the bulkhead out into the waters of Bayou Garcon. The permit clearly does no such thing. The permit contemplated bulk- heading and back-filling, not road building. The amount of unconsolidated fill exposed to wave action is at least 2 1/2 times what was authorized by the permit to be put behind bulkheads. . .
Filling in the waters of the State requires a permit pursuant to Rule 17-4.28, Florida Administrative Code, and Respondent had no permit authorizing placement of the fill so as to build the promontory."
See page 8 of 1983 Recommended Order.
The 1978 permit expired on May 18, 1982. Before its expiration date, the Petitioner did not place significant amounts of fill in the subject juncus marsh behind the beach berm although the permit authorized her to. When the application for the current permit was filed, the promontory fill in the waters of the bayou had been removed in accordance with the enforcement proceeding and Final Order therein, and only the northeast corner of the property around the subject stand of pine trees remains bulkheaded.
The Petitioner has not attempted, pursuant to the procedures set forth in Rule 17-4.022(8), Florida Administrative Code, to have the Department validate the jurisdictional determination which it made in connection with the 1978 permit application. The time has now expired for such a validation of the Department's 1978 determination of the landward extent of State waters, using the vegetative index adopted June 10, 1975. Such a validation would have had to have been made within six months of October 1, 1984, the effective date of the amendments to Chapter 403, commonly known as the "Warren S. Henderson Wetlands Act". Since that six month deadline mandated by the above-cited rule has long since passed, that prior 1978 jurisdictional determination, which resulted in the 1978 permit authorizing the filling of the marsh, can no longer have any material effect in this proceeding.
The record establishes no representations or acts on the part of the Department or its representatives occurred during the life of that 1978 permit such that representations or actions of the Department during the life of that permit would have prevented the Petitioner from filling the marsh, landward of
the berm or, in fact from completing the other work authorized by the permit, such as constructing the bulkhead across the front of the lots in accordance with the terms of the permit. The only thing interfering with the Petitioner's work on the project involved in the 1978 permit was the above-mentioned enforcement case, which stemmed from the Petitioner exceeding the authorization of that permit in the first place. No agency action or representation by any of its employees or agents prevented the Petitioner from filling the marsh area landward of the beach berm before the 1978 permit expired.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has juris- diction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).
Section 403.913, Florida Statutes, provides: "(1) No person shall dredge or fill in, on,
or over surface waters without a permit
from the Department, unless exempted by statute or Department rule.
The landward extent of water shall be determined as provided in Section 403.817, except that the Department may exert its jurisdiction to the ordinary or mean high-water line of waters whenever the landward extent, if deter- mined in accordance with Rule 17-4.022, Florida Administrative Code, occurs waterward of the ordinary or mean high- water line. The determinations made pursuant to this subsection shall be to establish the regulatory jurisdiction of the Department and are not intended to be a delineation of the boundaries of lands for purposes of title."
Acknowledging that the natural rise and fall of waters is an essential factor in good water quality and the difficulty of therefore determining the natural, landward extent of State waters, the Legislature, at Section 403.817(1) and (2), Florida Statutes, authorized the Department to establish, by rule, a method for determining the landward extent of waters of the State for regulatory purposes. That method involves definition of the landward extent of the Department's jurisdiction through the species of plants or soils characteristic of those areas subject to regular and periodic inundation by waters of the State, including application of plant indicators by dominant species. This legislative intent was carried out by the Department by the adoption of Rule 17- 4.022, Florida Administrative Code, which, to briefly summarize, defines the landward extent of State waters, and therefore Department jurisdiction, by a dominant species, vegetation index method, which rule was ratified by the Legislature through adoption of Section 403.8171, Florida Statutes, which made certain modifications to the vegetative index enacted in the rule, but which changes are not germane to the issues in this case. In view of the dominant vegetative index method of determining landward extent of State waters, and the Department's jurisdiction as applied to this case, and in view of the continuous, vegetative connection of the dominant, (and essentially only), species of vegetation present from the water's edge, across the beach berm, into
the marsh and up to the landward, upland there is no question that the property involved in this project lies within the landward extent of State waters, such that the Department has jurisdiction over the work proposed to be performed.
Therefore, a permit is required. See Sections 403.021, 403.031, 403.061,
403.087 and 403.088, Florida Statutes, and Rule 17-4.030, Florida Administrative Code.
The Petitioner advocates the use of the jurisdictional determination made by the Department in connection with the 1978 permit wherein it was determined, in essence, that there was no connection between the waters of the bayou and the juncus marsh lying landward of the beach berm, the key element justifying the grant of that permit. As noted above, Section 17-4.022(8), Florida Administrative Code, provides a means by which the Petitioner could have bound the Department under a "grandfathering" theory, to the 1978 jurisdictional determination provided the applicant had used the validation process, provided in the above rule, by: (a) graphically displaying on a map, drawing or aerial photograph or in written form, a narrative description sufficient to identify the area in question; (b) having the Department do a site verification; (c) having the determination document signed by an employee of the Department in the course of his official duties; and (d) having the site- verified written determination submitted to the Department within six months of October 1, 1984. Since the Petitioner failed to follow this procedure, it is obvious, at this late date, that the jurisdictional determination associated with the 1978 permit can no longer be validated and that the Petitioner will therefore be bound by any jurisdictional determination and interpretation of the landward extent of State waters at or on her property made in this de novo proceeding, by consideration and interpretation of the above-cited statute and rule, as applied to the facts found above. See Department of Environmental Regulation vs. C.P. Developers, 512 So.2d 258 (Fla. 1st DCA 1987).
Further, there is no question that construction of the proposed bulkhead and the proposal to place fill material landward of the bulkhead constitutes placement of fill in waters of the State, within the meaning of Section 403.913, Florida Statutes. "Filling" is defined at Rule 17-4.020(15), as the deposition, by any means, of materials in waters of the State. "Materials" is defined to mean matter of any kind including sand, clay, silt, solid waste, construction debris, dredge materials, pilings or other structures. There is no question that the deposition of the material in the State waters as proposed would constitute filling, over which the Department has jurisdiction, and concerning which a dredge and fill permit is required. See Little Munyon Island, Inc. vs. Department of Environmental Regulation, 492 So.2d 735 (1986)(Fla. 1st DCA 1986)
That portion of this project involving the bulkhead and back-filling waterward of the existing beach berm clearly lies within the open waters of Bayou Garcon, a Class III water of the State. The juncus marsh on the Petitioner's property is also within the landward extent of State waters and consequently within the Department's permitting jurisdiction, because there is a continuous, vegetative connection from the marsh, across the beach berm, and into the waters of the bayou. That vegetation, as described above, consists of submerged species mandated, by Rule 17-4.022, Florida Administrative Code, to be jurisdictionally determinative, if they predominate, which they have been found to do. There is also a regular and periodic inundation of the marsh by the waters of Bayou Garcon. Therefore, there is a regular and periodic exchange of waters of the bayou with the waters in the marsh, which occurs at least during unusually high tides and during or after storms or heavy rainfall events.
The filing of the permit application commenced a proceeding in which the Department's jurisdiction is determined based upon facts existing at the time of or subsequent to the filing of that application as the evidence is developed in the course of the de novo proceeding. This is true unless a basis exists for finding that the determination of jurisdiction made by the Department as to the prior 1978 permit application has been properly "grand fathered" pursuant to the above-cited rule or unless the Department is somehow estopped to deny the current applicability of that earlier jurisdictional determination or Simply the current entitlement of the Petitioner to the requested permit. See DER vs. C.P. Developers, Inc., 512 So.2d 258 (Fla. 1st DCA 1987); Reedy Creek Improvement District vs. DER, 486 So.2d 642 (Fla. 1st DCA 1986); and Florida Department of Transportation vs. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981)
As discussed above, the evidence is uncontradicted to the effect that the Petitioner has made no effort to validate the 1978 jurisdictional determination under the "grandfathering" procedure set forth in the above rule. Thus, it remains to be determined whether any basis can be found to enervate that earlier jurisdictional determination, based upon a claim of estoppel against the agency.
It is well established that the doctrine of equitable estoppel may be invoked against the State only in rare situations. The elements of equitable estoppel involve: a representation as to a material fact that is contrary to a later asserted position; a reliance on that representation; a change in position, detrimental to the party claiming the estoppel, caused by that representation and reliance thereon. C.P. Developers, supra; Reedy Creek, supra. The evidence in this case fails to demonstrate a factual or legal basis for estoppel as a result of circumstances or events related to the 1978 permit proceeding and grant. The 1978 permit was issued November 9, 1978, and expired May 18, 1982. By its terms the Petitioner was allowed to fill the marsh at issue, as well as the adjacent waters of the bayou to the bulkhead line. Any complaints the Petitioner may have had concerning delays, irregularities or misrepresentations of Department Personnel, concerning the processing of that application, were rendered moot when the Petitioner accepted the permit as issued, allowed the appellate review time to expire, and commenced work thereunder. The Petitioner's failure to complete the work authorized by that permit was not the result of any representation or action on the part of DER. The enforcement case brought by the Department a `result of Petitioner's noncompliance with a portion of the permit terms. That enforcement case did not involve any issue concerning the actual or attempted filling of the marshland in question. The record contains no evidence to establish that the Department in any manner prevented the Petitioner from timely filling the marsh, during the life of that 1978 permit. The Petitioner's failure to fill the marshland portion of the three lots during the life of the permit was a situation or event totally in the Petitioner's control.
Further, there is no evidentiary basis to support a finding of estoppel against the agency as a result of the Department's processing of the instant permit application. The Department followed its standard policy and procedure in processing the permit. The record establishes that the Department's representatives met with the Petitioner's consultants at the project site before the filing of the application and advised them that the Department had a policy of seldom issuing permits for the type of project they contemplated, especially with regard to the filling and destruction of marshland. The parties to that meeting discussed the problems with the project as it was initially proposed, and the Department's representatives advised them
of possible modifications that might render the project more acceptable and permittable. The Petitioner, however, made no change in her position as a result of the discussions and free form review by the agency, but chose to proceed with the permit application and project as originally filed.
There is no evidence to establish any change of position or detrimental reliance on the part of the Petitioner as a result of those representations made or actions taken by the Department in connection with the application and its processing. Even had a Department representative given an assurance to the Petitioner or her representatives that the project would be permitted if it were modified in a certain way or ways, which was not established, the record also would not support an estoppel in that circumstance because in fact the Petitioner chose to go forward with the project as she originally Proposed it without making any such modifications. There simply has been a failure by the Petitioner to demonstrate any entitlement to this permit based upon Principles of estoppel. Accordingly, it must now be determined whether the Petitioner has demonstrated the necessary reasonable assurances for entitlement to the permit, in accordance with Sections 403.918 and 403.919, Florida Statutes.
Section 403.918(1) and (2) provide as follows: "(1) A permit may not be issued under ss.
403.91-403.929 unless the applicant
provides the Department with reasonable assurance that water quality standards will not be violated. The Department, by rule, shall establish water quality criteria for wetlands within its jurisdiction, which criteria give appropriate recognition to the water quality of such wetlands in their natural state.
A permit may not be issued under ss. 403.91-403.929 unless the applicant provides the Department with reasonable assurance that the project is not contrary to the public interest. 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.
In determining whether a project is not contrary to the public interest, or is clearly in the public interest, the Department shall 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 s. 267.061; and
The current condition and relative value of functions being performed by
areas affected by the proposed activity.
If the applicant is unable to otherwise meet the criteria set forth in this subsection, the Department, in deciding to grant or deny a permit, shall consider measures proposed by or acceptable to the applicant to mitigate adverse effects which may be caused by the project . . ."
Section 403.919 provides, concerning the issue of cumulative impact, as follows:
"Equitable distribution - the Department, in deciding whether to grant or deny a permit or activity which will affect waters, shall consider:
The impact of the project for which the permit is sought.
The impact of projects which are existing or under construction or for which permits or jurisdictional determinations have been sought.
The impact of projects which are under review, approved, or vested pursuant to
s. 380.06, or other projects which may reasonably be expected to be located within the jurisdictional extent of waters, based upon land use restrictions and regulations.
In consideration of the preponderant evidence of record and the above Findings of Fact, in relation to the above-quoted statutory standards, it is concluded that the project is intended to be permanent in nature. Although the project, by itself, if the dredging and filling at issue was accomplished, would only result in an incremental effect on the water quality, that would not likely, standing alone, result in a violation of water quality standards, when the Petitioner's proposed project is considered in conjunction with other projects in the area, there is a greater likelihood of eventual violations of water quality standards, because of additional development and its cumulative impacts. With regard to the public interest standards set forth in Section 403.918(2), Florida Statutes, quoted above, the record establishes that the
Petitioner's project would result in a total destruction of the juncus salt marsh on the property and the adjacent littoral zone of the bayou. It will consequently adversely affect the conservation of fish and wildlife in the area of the project and will completely eliminate the habitat and productive function currently being provided by the marsh area. in question. Additionally, the project will adversely affect fishing and recreational values, as well as marine productivity in the vicinity of the project, by virtue of the elimination of marine and wildlife habitat, nursery grounds for finfish and invertebrates and elimination of the food and nutrient productive capacity of the marshland. All of these functions are currently being provided by the affected areas. There is some conflict in the evidence concerning the frequency of exchange of the waters the evidence concerning the frequency of exchange of the waters of the bayou with the waters of the marsh, however, the evidence is undisputed that some exchange occurs, at least at times of extraordinary high tides and storm or heavy rainfall events. The evidence is likewise undisputed that the areas in question currently serve as important habitat for a large variety of vertebrate and invertebrate life, and as feeding grounds for predators above them in the food chain. Consequently the marsh and the littoral zone of the bayou performs an important function as a source of nutrient and energy export, feeding the vertebrate and invertebrate members of the food chain in and for the adjacent estuarine waters.
The project as proposed will virtually eliminate all of the above beneficial functions, without providing any corresponding public benefit. The filling of the marshland will only serve the Petitioner or her successor-in- interest in ownership of the lots in question. The project will result in the creation of a new source of water quality degradation and a new source of adverse impacts concerning the subject matter of the above-enumerated, seven public interest criteria, which, when balanced against each other, and against the failure to provide, through the project, any corresponding public benefit, renders the conclusion inevitable that the requirements of Subsections (1) and
(2) of Section 403.918, Florida Statutes, quoted above, have not been met.
These adverse effects are magnified when juxtaposed against the cumulative impacts of other projects in the area currently constructed, under construction, for which Permits are being sought, or which may reasonably be expected to be located within the jurisdictional extent of State waters in the area of the bayou, as envisioned by the framers of Section 403.919, Florida Statutes, quoted above.
Accordingly, in view of the above Findings of Fact and conclusions and discussion of law in relation thereto, it must be concluded that the Petitioners failed to demonstrate entitlement to the requested permit either on the basis of proof of estoppel or through application of the above statutory criteria to the facts established by the preponderant evidence of record.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore
RECOMMENDED that the application of Joyce L. Lord for a dredge and fill permit as described above, be denied.
DONE and ENTERED this 29th day of July, 1988, in Tallahassee, Florida.
P. MICHAEL RUFF Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3033
Petitioner's Proposed Findings of Fact:
1 & 2. Accepted.
3-5. Accepted, but not dispositive of any material issue presented for the reasons enumerated in the body of the Recommended Order.
Accepted in part, but rejected as to its material overall import as not being in accordance with the preponderant evidence of record.
Accepted as to its chronology of events only; rejected otherwise as being not in accordance with the preponderant weight of the evidence.
Rejected as contrary to the preponderant weight of the evidence and as immaterial to the disposition of the material issues presented.
Rejected as to its material import and as contrary to the preponderant weight of the evidence.
Rejected as contrary to the preponderant weight of the evidence.
Rejected as subordinate to the Hearing Officers Findings of Fact on this subject matter.
12 & 13. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter and as not in accordance with the preponderant weight of the testimony and evidence.
14. Accepted, but not in and of itself dispositive of material issues presented.
15 & 16. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter and as not in accordance with the preponderant weight of the testimony and evidence.
Respondent's Proposed Findings of Fact: 1-13. Accepted.
COPIES FURNISHED:
Gregory Paul Farrar, Esquire Paul Shimek, Jr., Esquire
311 North Spring Street Pensacola, Florida 32501
David A. Crowley, Esquire Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Dale Twachtmann, Secretary Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32399-2400
| Issue Date | Proceedings |
|---|---|
| Jul. 29, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 07, 1988 | Agency Final Order | |
| Jul. 29, 1988 | Recommended Order | Expired fill permit cannot be revived. Reasonable assurances for new one not proven. Agency not estopped by prior jurisdictional determination. |
