STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM SCHULMAN, )

)

Petitioner, )

)

vs. )

) STATE OF FLORIDA DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondent, )

and )

)

WINDMILL VILLAGE BY THE SEA ) CASE NO. 87-5003 HOMEOWNERS ASSOCIATION, INC., )

SOPHIE HOLLER, JACKSON GRAY, ) MILDRED GRAY, NANCY BUTTEL, ) TERRY YOUNG, NORINE YOUNG, ) EINER NIELSEN, RICHARD CHASE, ) ALPHILD CHASE, JACK DONOHUE, ) PAT DONOHUE, ROBERT CHANDLER ) AND LYNN CHANDLER, )

)

Intervenors. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on May 9-10, 1988, in Fort Pierce, Florida, before Joyous D. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

For Petitioner: Harold G. Melville, Esquire

Post Office Box 1270

Fort Pierce, Florida 34954 (305) 464-8200

For Respondent: Karen Brodeen, Esquire

Twin Towers Office Building 2600 Blairstone Road

Tallahassee, Florida 32399-2400

(904)488-9730

For Intervenors: Frank E. Matthews, Esquire

Post Office Box 6526 Tallahassee, Florida 32314

(904) 222-7500

BACKGROUND AND PROCEDURAL MATTERS

This case began on October 14, 1987, when the Department of Environmental Regulation (Department) issued a letter notifying Petitioner that the Department intended to deny his request to modify permit no. 5601095728. The modification sought authority to fill an additional 1.5 to 2.0 acres of wetlands to provide increased uplands for development. As mitigation for the modification, Petitioner offered four culverts to be placed through an existing barrier to provide additional tidal activity to an adjacent impoundment.

On October 27, 1987, the Petition for Formal Administrative Proceedings was filed contesting the notice of intent to deny and challenging the facts relied on by the Department. The matter was forwarded to the Division of Administrative Hearings for formal proceedings on November 9, 1987.

By order entered April 12, 1988, Windmill Village by the Sea Homeowners Association, Inc. was permitted to intervene in the cause. At hearing, thirteen individual property owners also sought to intervene. Without objection, the following named property owners were permitted to intervene: Sophie Holler, Jackson and Mildred Gray, Nancy Buttel, Terry and Norine Young, Einer Nielsen, Richard and Alphild Chase, Jack and Pat Donohue, and Robert and Lynn Chandler.

At the hearing, Petitioner offered the testimony of the following witnesses: James Turpening, a civil engineer licensed in Florida since 1980 who conducted a test to determine the tides in Impoundment 12 and adjacent waters; James David, the assistant director of the St. Lucie Mosquito Control; and Reese Kessler, Jr., an environmental consultant. Petitioner's exhibits numbered 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 were admitted into evidence.

Respondent offered the testimony of the following witnesses: Duncan Powell, a biologist employed by the Florida Fish and Game Commission; Susan Davis, a Department environmental specialist; and John Meyer, manager of the Department's permitting section for the geographic region encompassing this request.

Respondent's exhibits numbered 1 through 8 were admitted into evidence.

Intervenors offered the testimony of Lynn Chandler, a nearby property owner; Donald Wisdom, a civil engineer and former district manager for the Army Corps of Engineers; and Edward Campbell, board member of the intervening homeowners association. Intervenors' exhibits numbered 1 through 8 and 10 were admitted into evidence.

No transcript was filed. After the hearing, all parties timely filed proposed recommended orders. These have been carefully considered in the preparation of this Recommended Order and specific rulings on the proposed findings of fact are included in the attached Appendix.

ISSUE

The central issue in this case is whether Petitioner's request to modify permit no. 5601095728 should be approved or denied.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact:

1. The Petitioner, William Schulman, as trustee, is the owner of a parcel of real property consisting of approximately ten acres located on Hutchinson Island in St. Lucie County, Florida.

   
   

2. On July 3, 1986, Petitioner was issued permit no. 5601095728 and became authorized to fill 1.5 acres of impacted wetlands in accordance with specifications and drawings which had been approved by the Department. Petitioner was required to provide mitigation in connection with the permit which included: the installation of culverts to allow tidal circulation to adjacent wetlands; scraping down a .5 acre area and planting smooth cordgrass; and dredging an area approximately sixty feet wide to allow an access to the Indian River. Petitioner has performed the above-described mitigation.

   
   

3. The permit also required Petitioner to execute and record a Conservation Easement which included the .5 acre to be scraped and planted with cordgrass. This easement has not been recorded in accordance with the permit guidelines.

   
   

4. Instead, Petitioner sought to modify the permit to allow an additional

   1.5 - 2.0 acres to be filled. This proposed area encompassed the smooth cordgrass and an area of mangroves which were to be part of the conservation easement. By letter dated July 10, 1987, Petitioner provided drawings to the Department to further identify the area subject to the requested modification. The proposed modification would result in the permanent loss of white mangrove and cordgrass marsh. This marsh is connected to Class II waters (Indian River) via the dredged opening described in paragraph 2.

   
   

5. Petitioner's ten acre parcel is bounded to the north by the platted Windmill Village subdivision; to the east is a commercial area which fronts on SR A-1-A; to the southwest of the property is a diked area known as Impoundment 12; to the west is a man-made lake referred to as "Black's Lake" at the hearing; and further to the west is the Indian River. As part of the original mitigation, Petitioner dredged a sixty foot opening connecting Black's Lake to the Indian River. The culverts required by the original mitigation connected Black's Lake to Impoundment 12, Petitioner's parcel to Black's Lake, and Impoundment 12 to the Indian River.

   
   

6. As mitigation for the modification sought, Petitioner has proposed to provide four additional culverts to connect Impoundment 12 with Black's Lake. The record in this cause is unclear as to the present ownership of Impoundment

1. Further, no owner has given consent to the proposed installation of additional culverts. The mitigation proposed for Impoundment 12 is not on Petitioner's property.

   
   

   1. As additional mitigation for the modification, Petitioner has proposed to provide two culverts which would connect a ditch on Petitioner's property to Black's Lake.

      
      

   2. On September 4, 1987, Petitioner provided materials from the St. Lucie County Mosquito Control District to the Department in support of the requested modification. The information suggested that with the installation of additional culverts, the tidal activity within Impoundment 12 would be improved and would thereby eliminate most of the mosquito breeding within that area.

      
      

   3. On October 14, 1987, the Department notified Petitioner of its intent to deny the modification to permit no. 5601095728. Thereafter, Petitioner timely filed for a formal review and these proceedings resulted.

   4. By stipulation, the parties agreed that the Department has jurisdiction of the project and the proposed modification to the permit.

      
      

   5. The proposed mitigation seeks to increase tidal exchange within Impoundment 12. Petitioner has not offered evidence to illustrate how the mitigation would directly benefit Petitioner's property.

      
      

   6. The tidal replication in Black's Lake is approximately 90 percent of that within the Indian River. The tidal replication within Impoundment 12 is approximately 60 percent of that within Black's Lake. Petitioner anticipates that the addition of culverts connecting Black's Lake to Impoundment 12 would increase the tidal exchange to the impoundment.

      
      

   7. Impoundment 12 consists of approximately 120 acres. Due to a dike which divides the property, only 80 + or - acres would be affected by the proposed mitigation.

      
      

   8. To effect 100 percent tidal replication within Impoundment 12 the dike separating it from the Indian River to the west would have to be removed. Since that solution is highly unlikely, authorities have sought to achieve tidal exchange via 40' culverts which are 30 inches in diameter and which have been placed to breech the dikes surrounding the impoundment. The most desirable locations for these culverts would be directly connecting Impoundment 12 to the river. That is not Petitioner's proposal.

      
      

   9. Petitioner proposes to connect Impoundment 12 with additional culverts to Black's Lake. The opening to the river from the lake would not be increased. Consequently, it is unlikely the replication within the lake will increase. The sole objective of Petitioner's proposed mitigation would simply cause more water to tidally flow from the lake to Impoundment 12.

      
      

   10. Increased flow to Impoundment 12 would enhance the likelihood of achieving tidal inundation which would make mosquito breeding less frequent. While it is expected that the Mosquito Control District would have to continue applying larvicide to Impoundment 12, its use may be less often. Optimally, tidal inundation would occur at least once a week. Currently, Impoundment 12 receives this desired inundation only during the fall season when the waters are high enough to flood the remote areas.

       
       

   11. Increasing the number of culverts would also increase the points of access and would allow the water to move more slowly through the openings. While there is no evidence to establish the locations for the placement of the proposed culverts, in theory, the placement would be to maximize the tidal

       exchange. A slower exchange through the culverts would benefit organisms moving through the system. The slower rate would also enhance the use of the passages by fish.

       
       

   12. To be lost by the modification are .5 acre of smooth cordgrass and

       1.25 - 1.50 acres of mature, functioning mangroves. The mangroves are predominantly of the white variety with some reds scattered. They are approximately 20 feet in height. If allowed to remain undeveloped, it is anticipated that the cordgrass area will aid in the recruitment of additional mangroves.

       
       

   13. Mangroves provide several benefits to estuarine systems. The leaf litter is a primary source of food for organisms in the lower end of the food

       chain such as fish and crabs. Fish, birds and mammals use mangroves for cover from predators. Birds also use the mangroves for perching and nesting and feed on insects and crabs associated with the trees. Mangroves in Impoundment 12 and the Petitioner's property (which will be lost by the modification) currently provide these benefits. It has not been demonstrated that the increased tidal flow to Impoundment 12 will quantitatively improve the benefits offered by mangroves to the existing system.

       
       

   14. Smooth cordgrass is a food source for birds, fish and mammals. Not only do organisms feed on the cordgrass, but they also feed on the leaves and seeds of the associated growth of spike rush and fungus. Mammals use the cordgrass for cover and some birds nest there.

       
       

   15. The following listed birds have been identified on Petitioner's property and Impoundment 12: snowy egret and little blue heron, which are species of local concern, and the brown pelican which is on the federal list of endangered species. Also observed at the location was the roseate spoonbill.

       
       

   16. Mammals identified on the Petitioner's property included raccoon, marsh rabbit and rat.

       
       

   17. The loss of the Petitioner's mangroves and cordgrass will decrease the habitat area currently used by mammals, fish and birds. Moreover, the mangrove population on Hutchinson Island is on the decline. Wetland areas have been decreasing due to development over the last 20 years. Numerous dredge and fill projects previously permitted by the Department have allowed filling of mangrove areas.

       
       

   18. Fish currently inhabiting the area which are expected to be adversely affected by the loss of the mangroves and ditch area include: snook (a species of special concern), tarpon, mojarra, and striped mullet. The increased water flow to Impoundment 12 does not offset this loss.

       
       

   19. Windmill Village By The Sea Homeowners Association, Inc., is a nonprofit corporation consisting of property owners occupying approximately 46 duplexes to the north of Petitioner's property. The 13 individual intervenors (Sophie Holler, Jackson and Mildred Gray, Terry and Norine Young, Einer Nielsen, Richard and Alphild Chase, Jack and Pat Donohue, and Robert and Lynn Chandler) are homeowners on Aqua Ra Drive north of and contiguous to Petitioner's property.

       
       

       CONCLUSIONS OF LAW

       
       

   20. The Division of Administrative Hearings has juris- diction over the parties and the subject matter of these proceedings.

       
       

   21. Petitioner has the burden of providing reasonable assurance that water quality standards will not be violated and that the requested modification is not contrary to the public interest. Section 403.918(1) and (2), Florida Statutes.

       
       

   22. In the instant case, the water quality standards will not be violated.

       
       

   23. The issue in this case is whether the proposal is contrary to the public interest. In making this public interest determination, the Florida Legislature has set forth seven criteria to be considered in balance, and it has

       further allowed the applicants to offer measures that might mitigate adverse effects from construction activities. Section 403.918(2)(a) and (b), Florida Statutes, provides:

       
       

       1. In determining whether a project is not contrary to the public interest, or is clearly in the public interest, the depart- ment shall consider and balance the following criteria:

          1. Whether the project will adversely affect the public health, safety, or welfare or the property of others;

          2. Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;

          3. Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;

          4. Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project;

          5. Whether the project will be of a tempo- rary or permanent nature;

          6. Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and

          7. The current condition and relative value of functions being performed by areas affected by the proposed activity.

       2. If the applicant is unable to otherwise meet the criteria set forth in this sub- section, 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 . . . .

          
          

   24. Based upon the aforementioned criteria, Petitioner has not provided reasonable assurances that the proposed modifi- cation is not contrary to the public interest. Specifically, the modification will adversely affect the conservation of fish and wildlife and their habitat. It is also of a permanent nature and it will eliminate the valuable functions being performed by the 1.75 acres of productive wetlands.

       
       

   25. Moreover, the mitigation proposed does not offset the loss of the mangroves. Assuming, arguendo, that Petitioner could provide an easement for the installation of the additional culverts (a fact not in evidence), the increased tidal flow to Impoundment 12 would not outweigh the detrimental effects resulting from the loss of the mangroves.

       
       

   26. Additionally, no evidence demonstrated that Impoundment 12 was in need of assistance in the form of more water. There was no substantial evidence to quantify any of the promised benefits. Even from a mosquito control perspective, the proposed mitigation would not obviate the need for continued

       use of larvicide. There was no evidence that mosquitoes in the area pose a serious health problem. To the contrary, one resident did not find them to be of significant concern.

       
       

   27. The correct use of mitigation is to factor the benefits of the proffered mitigation into the balancing of the public interest criteria against the negative effects of the construction to see if the project is contrary to the public interest. In the instant case, the mitigation does not tip the balance. The negative impacts are known and to a certain extent quantifiable, while the mitigation benefits are speculative.

       
       

   28. Finally, Petitioner's efforts to, in effect, renegotiate the original permit should not be encouraged from a policy standpoint. The requested modification eliminates mangroves which were specifically to be protected under the original permit. Those areas were to be designated within the conservation easement and should not be disturbed because an owner' s developments plans have subsequently changed. Arguably, had Petitioner timely recorded the conservation easement, the modification would not be available.

Based on the foregoing, it is

RECOMMENDED that the Department of Environmental regulation enter a Final Order denying the modification to permit no. 5601095728.

DONE and RECOMMENDED this 13th day of June, 1988, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

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 13th day of June, 1988.

COPIES FURNISHED:

Harold G. Melville, Esquire Post Office Box 1270

Fort Pierce, Florida 34954

Karen Brodeen, Esquire

Twin Towers Office Building 2600 Blairstone Road

Tallahassee, Florida 32399-2400

Frank E. Matthews, Esquire Post Office Box 6526 Tallahassee, Florida 32314

Dale Twachtmann, Secretary Department of Environmental

Regulation

Twin Towers Office Building 2600 Blairstone Road

Tallahassee, Florida 32399-2400

Daniel H. Thompson, Esquire General Counsel

Twin Towers Office Building 2600 Blairstone Road

Tallahassee, Florida 32399-2400

Docket for Case No: 87-005003

Orders for Case No: 87-005003