STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SUNSET ACRES PROPERTY OWNERS ) ASSOCIATION, )
)
Petitioner, )
)
vs. ) CASE NO. 91-7958
) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case on April 18 and 19, 1996, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: William J. Roberts, Esquire
Tom R. Moore, Esquire Roberts & Egan, P.A.
217 South Adams Street Tallahassee, Florida 32301
For Respondent: Lynette L. Ciardulli, Esquire
Douglas H. MacLaughlin, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUE
Whether Petitioner should be granted the dredge and fill permit it has requested from the Department of Environmental Protection (hereinafter referred to as the "Department") and, if so, under what conditions, if any?
PRELIMINARY STATEMENT
On March 23, 1989, Petitioner filed with the Department's predecessor, the Department of Environmental Regulation (hereinafter referred to as "DER") an application seeking a permit authorizing the connection, to Community Harbor in Florida Bay, of the then-closed (but now open) canal network in the Sunset Acres subdivision (consisting of three finger canals, each connected at their waterward end to an outer basin, which the parties have referred to as the
shore-parallel canal) by removing a plug and excavating two flushing cuts through an earthen berm separating the shore-parallel canal from an existing access channel. On August 30, 1991, DER issued a Notice of Permit Denial announcing its intention to deny Petitioner's application. Petitioner, on or
about October 29, 1991, filed a petition challenging the Department's intended action and requesting a formal hearing on the matter. DER, on December 11, 1991, referred Petitioner's petition to the Division of Administrative Hearings (hereinafter referred to as the "Division") for the assignment of a Division Hearing Officer "to conduct all necessary proceedings required by law and to submit a recommended order to [DER]."
Thereafter, the parties engaged in lengthy settlement negotiations. The negotiations were productive but did not result in agreement on all issues.
On or about March 25, 1996, Petitioner submitted an amended application in light of the "partial settlement" it and the Department had reached. In its amended application, Petitioner requested the Department:
to permit the existing access channel to the Sunset Acres system to remain open, as it has for most of the last 12 years, to the outer basin (shore-parallel canal) of the Sunset Acres channel and canal system, on the condition that the Association construct three permanent sills separating the outer basin from the existing three finger canals;
to permit the existing outer basin of the Sunset Acres access channel and canal system to be maintained in an open condition to the access channel, on the condition that it (the basin) is shallowed to a depth of no greater than -6 feet MLW;
to permit the Association to construct and operate a multi-slip docking facility within the outer basin sufficient to provide up to one slip per lot within the Sunset Acres subdivision (see alternatives "A" and "B" in engineering drawings); and
to permit the Association to establish a 15' wide by 3' deep notch in each of the three sills separating the three finger canals from the outer basin, on condition that the Association monitor the water
quality of the three finger canals, the outer basin and the exchange of waters to and from the canal system and Florida Bay to fully assure the Department that there are no adverse environmental impacts on the water quality of Florida Bay.
Alternatively as to number 4, but in any event a second choice to number 4 and not preferred by the Petitioner/Applicant, this Amended Application does request that the Department permit the Association to con- struct three boat lifts, one at the basin end of each of the three finger canals, if the alternative ( Number4) is not allowed.
As a further alternative (to this alternative) at Petitioner's/Applicant's option, Petitioner/Applicant may wish to install a single boat lift at the entrance channel and
close the entrance, rather than close the three finger canals and install three boat lifts.
The Department, on April 9, 1996, through a Draft Notice of Denial, announced its intention to deny Petitioner's amended application on the following grounds:
[T]he applicant has not provided reasonable assurance that the construction and operation of the activity, considering the direct, secondary and cumulative impacts, 1/ will comply with the provisions of Part IV of Chapter 373, F.S., and the rules adopted thereunder. Specifically, the activity does not meet the criteria for issuance of a wetland resource permit, pursuant to Section 62-312.080, F.A.C., because:
1. The immediate and long-term impacts of the activity are expected to cause violations of water quality standards set forth in Chapters 62-3, 62-4, and 62-302, F.A.C., including the antidegradation provisions of Sections 62-4.242, and 62-302.300, F.A.C.
The specific water quality standards listed in Chapter 62-302, F.A.C., that will not be met by the construction and operation of the activity include:
Copper- shall not exceed 0.015 milligrams per liter in predominantly marine waters. Dissolved oxygen- in predominantly marine waters, the concentration shall not average less than 5 milligrams per liter in a 24 hour period and shall never be less than 4 milli- grams per liter. Normal daily and seasonal fluctuations above these levels shall be maintained.
Oils and greases- dissolved or emulsified oils and greases shall not exceed 5.0 milli- grams per liter; no undissolved oil or visible oil defined as iridescence shall be present so as to cause taste or odor or other- wise interfere with the beneficial use of waters.
Pollution which causes or contributes to new violations of water quality standards and to continuation of existing violations is harm- ful to the water of this State and shall not be allowed, in accordance with Section
62-302.300(5), F.A.C.
II. It is contrary to the public interest and is not clearly in the public interest for those portions of the activity that sign- ificantly degrade or are within Outstanding
Florida Water. Specifically, those portions of the activity located in, on, or over wet- lands or other surface waters are expected to:
adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;
adversely affect fishing or recreational values or marine productivity in the vicinity of the project;
be permanent in nature; and
diminish the current condition and relative value of functions being performed by areas affected by the proposed activity.
In its Draft Notice of Denial, the Department advised that "the following changes to the project may enable the Department to grant a permit:"
As recommended in the original Notice of Denial, issued August 1991, reasonable assurance that the permitting criteria are met could be provided by either of the following two options.
The existing opening in the breakwater earthen berm should be filled in, rather than widened and deepened for boat access. This would serve to isolate the poorer quality service waters of existing canals from the adjacent waters of Florida Bay, an OFW. In order to maintain the existing level of boat use in the now-open canal, a boat lift could be constructed at the location of the existing opening. The original permit for the canal system author- ized a boat lift to provide boat access from the canals. It is possible that some type of boat lift, located on the perimeter berm at the existing access channel, could be favorably reviewed by the Department as a means of providing boat access to the canal
system, provided that the lift were designed to minimize loss to natural resources as a consequence of construction activities and boat-related uses.
An alternate approach would be to con- struct the access opening in the berm by expanding the existing opening, constructing permanent fill structures to isolate the finger canals from the shore-parallel canal, and backfilling the shore parallel canal to no less tha[n] -6 ft, MLW. Limited permanent mooring could be authorized in the shore- parallel canal only. No notches or similar surface water connections would be provided to the finger canals. A boat lift at each finger canal's plug, however, would be acceptable.
On April 10, 1996, the parties filed a joint prehearing stipulation in which they expressed their agreement "that the project in dispute is the modified project as outlined in the Petitioner's Amended Petition/Application and denied by the Department in the Draft Notice of Denial." They stated their respective positions on the matter as follows:
The Department's position is that the Depart- ment has denied the request for a permit because the project as modified will allow a degradation of water quality in the receiving waters of Florida Bay. In addition, the cumulative impacts associated with the pro- ject as modified will allow an unfavorable precedent.
The Petitioner's position is that no pollut- ants exist, or to the extent that any do exist (e.g. water with DO levels periodically below state standards in portions of the finger canals), none (pollutants) will migrate through the three proposed 3' x 15' notches in the sills, travel across and through the waters of the shoaled basin (pro- posed for a depth of -6.0 ft. MLW) in such quantity and concentration as to signifi- cantly degrade the waters of Florida Bay.
In addition, there are legal limits to the DEP consideration and application of the socalled "cumulative impacts" doctrine.
Petitioner respectfully submits that, to the extent the doctrine might relate to the issuance of the Sunset Acres permit/certifi- cation, the doctrine does not apply in that the requested Sunset Acres permit (specifi- cally for the notches in the sills) has absolutely no bearing on any other appli- cation before the Department (or any appli- cation which might come before the Department "in the same geographic location in the future").
The prehearing stipulation listed the following as the issues that remained to be litigated by the parties at hearing and decided by the Hearing Officer following the hearing:
issues of fact which remain to be litigated
The parties agree that the following are mixed issues of law and fact.
Whether the project as modified will cause a violation of water quality in waters of the state.
Whether the project as modified "signifi- cantly degrades or is within an Outstanding Florida Water" as provided in Section 373.414(1), Fla. Stat.
If so, whether the applicant has provided reasonable assurance that the project as
modified will be clearly in the public interest.
If not, whether the project is not contrary to the public interest.
Whether the exchange of waters between the three finger canals and Florida Bay, through the proposed notches and across the basin (shoaled as required and authorized by the requested permit), will cause any degradation of ambient water quality in Florida Bay, or cause significant degradation of the waters of Florida Bay.
Whether the cumulative impacts associated with the modified project require denial of the modified project.
issues of law which remain to be decided by the Hearing Officer
Whether the Petitioner has provided the Department with reasonable assurance that water quality standards will not be violated and that the project meets the standard applicable to this case.
Whether the standard to be applied here, as to the effects of the proposed project as modified, is that the project activities are either "not contrary to the public interest" (Class III waters standard) or "clearly in the public interest" (OFW standard).
Whether under the pertinent facts related to Petitioner's amended application and the Department's "cumulative impacts doctrine," that doctrine requires denial of the application.
At the final hearing conducted by the Hearing Officer, which as noted above, was held on April 18 and 19, 1996, the parties presented the testimony of a total of nine witnesses: Hector Sosa, Petitioner's vice president; Edward A. Swakon, a registered professional engineer in the State of Florida; Dr. Earl Rich, an ecologist; Dr. Jack Bateman, a college professor and environmental consultant; Dr. Kenneth Echternacht, a hydrographic engineer; George Baragona, a Professional Engineer Administrator with the Department responsible for supervising the engineering operations and functions of the Department's Bureau of Wetland Resource Management; Ed Barham, an Environmental Scientist II with the Department; Constance Bersok, an Environmental Administrator with the Department; and Jeremy Craft, Director of the Department's Division of Environmental Resource Permitting. In addition to the testimony of these nine witnesses, 13 exhibits (Joint Exhibits 1 and 2, Petitioner's Exhibits 1 through 4, and Respondent's Exhibits 1 through 7) were offered and received into evidence. At the close of the evidentiary portion of the hearing, the Hearing Officer advised the parties on the record that post-hearing submittals had to be filed no later than 20 days following the Hearing Officer's receipt of the transcript of the hearing.
On April 24, 1996, Petitioner filed a post-hearing amendment to its amended application. The amendment provided as follows:
Notwithstanding the DEP suggested alter- native approach to the issuance of a permit/certification here, Petitioner/ Applicant expressly and formally declares by amendment to the Amended Petition/Appli- cation that it has no further interest in the establishment of boat slips within the shore-parallel-canal (basin) which is proposed to be shallowed to -6.0 ft. MLW. Instead, Petitioner/Applicant seeks only (not as an alternative to the construction of boat slips in the basin) the DEP's approval of the construction of the Associa- tion-proposed three 15' x 3' notches in the three sills which otherwise will separate and close the three finger canals from the shoaled basin.
This amendment is made to formalize the assurances given by the Association at the formal hearing to DEP (and to the Hearing Officer) of the Association's intent to limit the storage and mooring of boats within the Sunset Acres channel and canal system to the finger canals themselves, with the minor exception of boats of the owners of the six lots that front on the shore-parallel-canal. Any request to the contrary as it may appear in the Amended Petition/Application is hereby withdrawn.
As a corollary to the aforesaid amendment and to further formalize and clarify this position of the Association as set forth at the formal hearing, the Petitioner Association expressly further amends its Amended Appli- cation, as follows, regarding the requisite reasonable assurance given by the Association to the DEP that the proposed project will neither degrade the outstanding Florida
waters of Florida Bay, nor be contrary to the public interest.
The Association agrees, as indicated by Mr. Sosa's testimony, that upon the Depart- ment's granting of a permit/certification to allow the notches in the three sills, the Association shall prohibit, by conservation easement in favor [of] the State (DEP), the construction of any type of docking or mooring facility within the shoaled basin, other than as to boats owned by the owners of the six lots which front the shore- parallel-canal.
As a further condition to DEP permit/ certification allowing notches, the Asso- ciation agrees to take such action as may be necessary, including but not limited to
amending its subdivision rules and regulations, to assure the DEP that all boats of Sunset
Acres will be removed completely from the water when they are not being used.
The Association agrees that upon the Department's granting of a permit/certifi- cation to allow the notches in the three sills, the Association shall install and maintain such additional aeration diffusers or devises (e.g. bubble curtains at the notches, as well as additional aeration diffusers throughout the system) and such additional pumps as may be necessary to
raise and maintain levels of dissolved oxygen in the waters of the finger canals to the maximum levels reasonably achievable at this site, i.e., to demonstrate that the Asso- ciation has done everything possible to maximize the dissolved oxygen content of
all waters which will be exchanged from the finger canals with waters of the shoaled basin. The Association also agrees to enter into contracts with an independent person or entity to professionally maintain the aeration system and monitor the levels of dissolved oxygen within the finger canals and the shoaled basin.
The Petitioner Association lastly amends its Amended Petition/Application by formally pleading its request that the Department grant to the Association an appropriate exemption, exception or variance from the dissolved oxygen requirements of applicable administrative rules, as to the waters of the finger canals behind (landward of) the sills.
On May 10, 1996, the Hearing Officer received the transcript of the formal hearing held in this case. On May 29, 1996, the Department, on behalf of both parties, filed a motion requesting an extension of the deadline for the filing of proposed recommended orders. By order of the Hearing Officer issued May 30, 1996, the motion was granted and the filing deadline was extended to June 3, 1996.
On June 3, 1996, Petitioner and the Department timely filed proposed recommended orders, which the Hearing Officer has carefully considered. The "findings of fact" set forth in the parties' proposed recommended orders are specifically addressed in the Appendix to this Recommended Order.
FINDINGS OF FACT
Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:
Petitioner
Petitioner is a property owners association.
Its members own property in the Sunset Acres mobile home subdivision (hereinafter referred to as "Sunset Acres") on Key Largo in Monroe County, Florida. 2/
Sunset Acres
The subdivision was developed in the early 1970's, but the association did not form until after legal problems arose in the late 1980's concerning the owners' direct water access from the subdivision's man-made channel and canal system.
There are approximately 77 lots in Sunset Acres, most of which are developed and concreted. The majority of the approximately 58 or 59 canal-front lots are seawalled.
The development has its own sewage treatment plant.
The Sunset Acres Channel and Canal System
Sunset Acre's channel and canal system consists of a channel and four steep-sided canals approximately 20 feet deep.
Three of the four canals run east-west. These east-west canals range from 300 to 450 feet in length. They each dead-end at their eastern terminus and connect at their western end with a fourth canal, which the parties have referred to as the shore-parallel canal because it runs parallel (north-south) to the perimeter berm that separates the development from Community Harbor, which is a part of Florida Bay. 3/
Florida Bay
Florida Bay is a Class III, Outstanding Florida Water.
It is a shallow estuarine system with a sandy bottom that supports seagrass beds and several species of attached algae.
Marine productivity in Florida Bay has traditionally been high and, as a result, fishing and other related recreational opportunities have been abundant.
Numerous species of birds, including species of special concern, as well as the bald eagle, a threatened species, feed or forage in the area.
The Pre-Application Opening and Closing of the Sunset Acres Canal Network
DER's predecessor, the Department of Pollution Control, permitted the Sunset Acres canal network as a landlocked system separated from Florida Bay by a perimeter berm. Neither the Department (of Environmental Protection) nor any of its predecessors have subsequently authorized the connection of the Sunset Acres canal network to Florida Bay.
In 1974, following the construction of the canals, the Trustees of the Internal Improvement Trust Fund issued a permit (No. 44-39-2514E) authorizing the dredging of an access channel waterward of the berm (due west of the most southerly of the three east-west canals) and the building of a boat lift to move boats from the channel to the shore-parallel canal.
The channel was dug, but the boat lift was never constructed.
In 1979, DER received an application for a permit to create an opening in that portion of the perimeter berm (hereinafter referred to as the "plug") lying between the access channel and the shore-parallel canal. The application was denied in 1980, following an administrative hearing. 4/
In 1981, as a result of a storm, a break developed in the plug that opened the Sunset Acres canal network to the waters of Florida Bay.
The opening remained for eight years, during which time it widened and deepened.
In 1989, following further litigation, the United States Army Corps of Engineers repaired the break and thereby closed the Sunset Acres canal network.
The Post-Application Reopening of the Sunset Acres Canal Network
On March 23, 1989, Petitioner filed an application with DER requesting a permit to reopen the canal network in Sunset Acres by removing the plug that the United States Army Corps of Engineers had repaired.
In February of 1991, before DER had determined (preliminarily or otherwise) whether or not to grant Petitioner's application, the canal waters of Sunset Acres were once again connected to the waters of Florida Bay without DER's authorization as the result of a storm, which, like the storm that had visited Sunset Acres in 1981, damaged the plug that (since its repair in 1989) had separated the now-connected waters of Sunset Acres and Florida Bay. Immediately upon discovering the damage, Petitioner notified DER of the breach.
No action has yet been taken to repair the damage caused by the 1991 storm. Therefore, since the storm, the Sunset Acres canals have remained open and the property owners of Sunset Acres have had direct access (by boat) from their property to Florida Bay. 5/
Existing General Conditions and Activities in the Project Area Vicinity
During peak periods (which are generally on weekends), 6/ there may be as many as 40 to 42 boats in Sunset Acres.
Only 5 or 6 of these boats are moored in the waters of the subdivision's canals when they are not being used. 7/ The remainder are lifted out of the water on davits.
Property owners use the canal waters not only for boating, but for swimming and fishing as well.
There is a relatively healthy presence of fish and other marine life in the canals.
In Florida Bay, immediately to the west of the perimeter berm opening (that has existed since February of 1991), there is a wide diversity of marine life, including macrophytic and young coral and invertebrate growth.
The Department's Notice of Intent to Deny the Original Permit Application
On August 30, 1991, DER gave notice of its intent to deny Petitioner's application for authorization to reopen the Sunset Acres canal network. 8/
Petitioner requested a formal administrative hearing and the matter was referred to the Division of Administrative Hearings.
Petitioner's Amended Permit Application
Petitioner engaged in lengthy settlement negotiations with DER and then the Department.
As a result of these negotiations, Petitioner, on or about March 25, 1996, amended its application to reflect its agreement (as described in the parties' joint prehearing stipulation) "to backfill (shoal) the shore-parallel canal (basin), construct docks within that canal (basin), and to construct fill sills and bulkheads to separate the three finger canals from the shore canal (basin)[, which] would then be open to Florida Bay." The amended application also requested permission "to establish a 15' wide by 3' deep notch in each of the three sills separating the three finger canals from the outer basin," (permission which, in settlement negotiations, the Department had indicated it would be unwilling to give).
The Department's Notice of Intent to Deny the Amended Permit Application
The Department, on April 9, 1996, through a Draft Notice of Denial, announced its intent to deny Petitioner's amended application.
In its Draft Notice of Denial, the Department gave the following explanation as to why it was unwillingly to allow the notches Petitioner sought:
The construction of the sill and bulkhead with surface notches will not serve to sever the deep canals from the adjacent waters of Florida Bay. Therefore, the waters from
these finger canals that do not meet the state water quality standards would degrade the waters of Florida Bay, an OFW. In addition, as described below in the hydrographic review of the site, these canals would not be expected to flush adequately and would con- centrate pollutants from boat use and docking, in violation of state water quality standards. As a result, they would be expected to further degrade the receiving waters of Florida Bay.
The site was evaluated with regard to its hydrographic characteristics and hydrographic (drogue) studies were conducted in the field.
. . . Based on this study, it appears that an exchange of water will occur in the upper
water column (three feet or less) between the canals and waters of the state if the notched weirs are constructed in the dead-end canals. There is not sufficient water movement to provide adequate exchange in the deep portions of the canals.
Oil and Greases
Among the "pollutants from boat use and docking" about which the Department was concerned were oils and greases.
Oils and greases are released into the water by operating outboard motors and inboard motors.
The water around docking facilities typically has high concentrations of oils and greases.
At present, the Sunset Acres canal waters meet state water quality standards with respect to oils and greases.
Heavy Metals
Materials used in the marine industry often contain copper because of copper's anti-fouling properties. For instance, copper is a component of the paint used on boat bottoms. It is also used on dock pilings. Accordingly, all other things remaining the same, an increase in the number of docks in an area will result in a corresponding increase in the copper content of the water in which the docks are located.
In its Draft Notice of Denial, the Department asserted that "currently, Class III water quality standards for lead and copper are not being met in the [Sunset Acres] canal system."
That statement was inaccurate.
As the Department conceded at hearing, the Sunset Acres canal waters presently do not violate state standards with respect to cooper or lead.
Dissolved Oxygen
In its Draft Notice of Denial, the Department also expressed concerns regarding the "[p]ersistent violations of the state water quality standard for dissolved oxygen (DO) [that] have been measured."
The Sunset Acres canals, as even Petitioner has acknowledged, "have long had a history of difficulty in achieving and maintaining levels of dissolved oxygen that meet state standards."
The historically low DO levels in the canals are due, at least in substantial part, to the depth of the canals (and the attendant lack of sunlight at deeper depths). Another contributing factor appears to be the intrusion into the canals of ground water with low DO levels flowing from the Atlantic Ocean side of Key Largo, 9/ a situation over which Petitioner has no control. (Atlantic ground water with low DO levels also flows directly into Florida Bay near Sunset Acres. 10/ This is a natural phenomenon.)
Petitioner has engaged experts to help it deal with the problem of low levels of DO in the Sunset Acres canals.
At the recommendation of its experts, it installed (at considerable expense) an aeration system in the canals. Approximately three years ago, the system was updated and improved.
Aeration systems are designed to promote mixing (by bringing the deeper waters to the surface) and to thereby deter stratification. In addition, they produce tiny bubbles that add oxygen to the water.
Aeration systems are mechanical devices that require regular maintenance. If they are not properly maintained, they will likely malfunction and break down. Properly maintained systems, however, rarely break down.
Sunset Acres' aeration system has been operating for several years. Over that period of time, the water quality of the canals has improved somewhat. Nonetheless, state standards with respect to DO levels are still not being met, as Petitioner's own data, as well as that compiled by the Department, reveals.
Petitioner performed water quality testing for dissolved oxygen levels on April 12-14, 1996. 11/
Samples were taken every six hours around the clock (with the exception of the midnight hour) from the top to the bottom of the water column (at one foot intervals) of the three east-west canals (stations 1SE, 1SW, 2SE, 2SW, 3SE and 3SW) and the shore-parallel canal. Samples were also taken from a control station in Florida Bay.
The sampling revealed that the canal waters closest to the surface had significantly higher DO levels than did the deeper waters. 12/
The DO levels (in milligrams per liter) were as follows at the zero, one, two and three foot depths: 13/
zero:
1SE- 4.60, 4.33, 3.35, 3.35, 4.34 and 4.13
1SW- 4.77, 5.14, 4.03, 4.03, 4.40 and 4.07
2SE- 4.51, 4.65, 3.61, 3.61, 4.13 and 4.00
2SW- 4.74, 5.52, 5.52, 5.52, 5.96 and 4.45
3SE- 5.44, 5.60, 4.23, 4.23, 4.71 and 4.30
3SW- 5.39, 5.14, 4.64, 4.64, 5.33 and 3.75
Shore-Parallel Canal- 5.42, 5.12, 4.36, 5.23,
5.05 and 5.05
Florida Bay control- 8.17, 8.34, 7.87, 8.22,
8.99 and 6.50 One:
1SE- 4.54, 4.61, 3.13, 3.13, 4.33 and 4.15
1SW- 4.72, 5.06, 3.90, 3.90, 4.37 and 4.07
2SE- 4.47, 4.56, 3.30, 3.30, 4.05 and 3.82
2SW- 4.73, 5.50, 5.50, 5.50, 5.82 and 4.32
3SE- 5.31, 5.55, 4.28, 4.28, 4.69 and 4.24
3SW- 5.22, 5.17, 4.44, 4.44, 5.32 and 3.74
Shore-Parallel Canal- 4.41, 5.13, 4.23, 5.18,
5.04 and 5.04
Florida Bay control- 8.15, 8.32, 7.61, 8.21,
8.82 and 6.47 Two:
1SE- 4.47, 4.42, 3.02, 3.02, 4.41 and 4.20
1SW- 4.68, 5.02, 3.83, 3.83, 4.33 and 4.07
2SE- 4.43, 4.40, 3.30, 3.30, 4.12 and 3.81
2SW- 4.68, 5.46, 5.46, 5.46, 5.55 and 4.30
3SE- 5.44, 5.41, 4.19, 4.19, 4.64 and 4.23
3SW- 5.30, 5.02, 4.44, 4.44, 4.88 and 3.77
Shore-Parallel Canal- 5.39, 5.09, 4.21, 5.17,
5.06 and 5.06
Florida Bay control- 8.13, 8.31, 7.58, 8.32,
8.60 and 6.47 Three:
1SE- 4.40, 4.75, 3.21, 3.21, 4.20 and 4.25
1SW- 4.66, 4.89, 3.80, 3.80, 4.29 and 4.07
2SE- 4.44, 4.37, 3.28, 3.28, 4.20 and 3.79
2SW- 4.67, 5.38, 5.38, 5.38, 5.15 and 4.26
3SE- 5.38, 5.23, 4.23, 4.23, 4.59 and 4.21
3SW- 5.33, 5.04, 4.44, 4.44, 4.93 and 3.82
Shore-Parallel Canal- 5.44, 5.07, 4.21, 5.02,
5.08 and 5.08
Florida Bay control- 8.08, 8.26, 7.29, 8.33,
8.86 and 6.61
The Department conducted monthly water quality sampling of each of the four Sunset Acres canals (at one foot below the surface, at mid-depth and at one foot above the bottom) for the 8 months preceding the commencement of the hearing. 14/ The overall results of the Department's sampling were not significantly different than those Petitioner had obtained. The average DO level for the four canals over the sampling period was approximately 3.7 (milligrams per liter).
The Anticipated Impacts of the Proposed Project
Petitioner has requested the Department to allow the heretofore unauthorized opening that now exists in the perimeter berm separating the shore parallel canal and Florida Bay to remain as it currently exists. In seeking such authorization, Petitioner has indicated that it would be willing to shoal the shore-parallel canal "to a depth of no greater than -6 feet MLW" and to "construct three permanent sills [bulkheads] separating the outer basin [shore- parallel canal] from the existing three [east-west] finger canals," in which it would like "to establish . . . 15' wide by 3' deep notch[es]." The proposed project is intended to be permanent in nature.
As the Department acknowledged in its April 9, 1996, Draft Notice of Denial (of Petitioner's amended application):
Backfilling [or shoaling] of the shore- parallel canal to -6.0 ft. MLW is anticipated to improve water quality in that canal by eliminating the existing stratification [and thus increasing DO levels]. Review of nearby canals indicates that canals with depths of
5 to 6 feet or less generally meet the water quality standard for dissolved oxygen; deeper canals such as those on this site
generally do not meet this and other relevant water quality standards.
The bulkheads would help to limit the flow of waters from the east- west canals into the shore-parallel canal and ultimately Florida Bay; however, if the bulkheads were constructed with the notches desired by Petitioner and the opening in the perimeter berm was allowed to remain, 15/ there would be nothing separating the top three feet of surface waters of the east-west canals (with its substandard levels of DO 16/ ) from the shore-parallel canal and
Florida Bay. Canal waters with substandard levels of DO would therefore exchange with the waters of Florida Bay (as they do at present). This would have a negative impact, or, as Petitioner's expert, Dr. Rich, put it, a "deteriorating effect," on Florida Bay. 17/ The adverse impact or effect, however, would be minimal (although it may increase over time). 18/ A hundred feet from the opening in the berm (in Florida Bay), it likely would not be detectable. Ten feet from the opening, though, it could possibly be detected.
It does not appear that the proposed project would result in any significant increase in the number of boats in and around the canal waters of Sunset Acres.
Property owners would still use their boats in Florida Bay if the opening in the perimeter berm were closed and the Sunset Acres canals and Florida Bay were no longer connected, even though it would be more inconvenient for them to do so. (To the extent that the proposed project will eliminate such inconvenience, it will have a beneficial effect on navigation and recreational boating and related activities.)
In view of the foregoing, it is not expected that there will be any significant increase in the concentration of pollutants associated with boat use (copper and oils and greases) in either the Sunset Acres canal waters or the waters of Florida Bay as a result of the proposed project.
If, however, marina-like docking facilities, such as those described in Petitioner's amended application (which, in its subsequently filed, post- hearing amendment to its amended application, Petitioner has indicated it no longer has any interest in constructing), were constructed in the Sunset Acres canal waters and the connection of these canal waters and Florida Bay was maintained, significant environmental harm (caused by: the introduction and accumulation of pollutants emanating from the docks and the boats moored to them; and the shading of the canal waters under the docks and resultant lowering in DO levels in these waters due to a decrease in photosynthetic activity) would occur in the canals and in the receiving waters of Florida Bay. 19/ (The degradation of the water quality of the canals and of Florida Bay would tend to have, particularly in the long run, an adverse effect on marine productivity and the conservation of fish 20/ and wildlife that now inhabit these waters.)
The proposed project will have no impact on historical and archaeological resources and it will not adversely affect either the public health, safety or welfare or the property of others.
There are numerous canal systems in the Upper Keys (and also throughout the remainder of the Keys) similar to the Sunset Acres canal network. The vast majority of these systems are open, 21/ notwithstanding that their waters do not meet state water quality standards. From North Key Largo to Key West, there are only four canal systems that are closed. Of these four closed systems, the one closest to the proposed project site is six miles away. The next closest system is 45 miles from the site.
If any other similar canal systems in the vicinity of Sunset Acres which are presently not authorized to be connected to the waters of Florida Bay were to receive such authorization (despite their substandard levels of DO) as a result of precedent established by the Department permitting the proposed project in the instant case, the negative environmental consequences of the proposed project would be magnified.
CONCLUSIONS OF LAW
Before determining whether, and under what conditions, if any, it should grant an application for a dredge and fill permit, such as the one at issue in the instant case, the Department must evaluate the application in light of the provisions of Section 373.414, Florida Statutes, which provides in pertinent part as follows:
[T]he department shall require the appli- cant to provide reasonable assurance that water quality standards applicable to waters as defined in s. 403.031(13) 22/ will not
be violated and reasonable assurance that such activity in, on, or over surface waters or wetlands, as delineated in s. 373.421(1) is not contrary to the public interest. However, if such an activity significantly degrades or is within an Outstanding Florida Water, as provided by department rule, the applicant must provide reasonable assurance that the proposed activity will be clearly in the public interest.
In determining whether an activity, which is in, on, or over surface waters or wetlands, as delineated in s. 373.421(1), and is regulated under this part, 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 activity will adversely affect the public health, safety, or welfare or the property of others;
Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species,
or their habitats;
Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity;
Whether the activity will be of a temp- orary or permanent nature;
Whether the activity will adversely affect or will enhance 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 sub- section, . . . the department, in deciding to
grant or deny a permit, shall consider mea- sures proposed by or acceptable to the appli- cant to mitigate adverse effects which may be caused by the activity. . . .
(8) The . . . department, in deciding whether to grant or deny a permit for an activity regulated under this part shall consider the cumulative impacts upon surface water and wetlands, as delineated in
s. 373.421(1), within the same drainage basin as defined in s. 373.403(9), of:
The activity for which the permit is sought.
Projects which are existing or activities regulated under this part which are under construction or projects for which permits or determinations pursuant to
s. 373.421 or s. 403.914 have been sought.
The term "reasonable assurance," as used in the statute, "contemplates
. . . a substantial likelihood that the project will be successfully implemented." Metropolitan Dade County v. Coscan Florida, Inc., 609 So.2d 644, 648 (Fla. 3d DCA 1992). The "reasonable assurances" that the statute requires must be given "before the project is started" and it is not within the Department's "province to allow a[n applicant] to proceed with a project . . .
with no idea as to what the effect on water quality [and the public interest] will be." Id. Furthermore, the required "reasonable assurances" must be "based on plans, test results or other information," not on sheer speculation. Rule
62-312.080(1), Fla. Admin. Code.
Where an application for a dredge and fill permit is contested, the burden is on the applicant to prove by a preponderance of the evidence at the administrative hearing on the matter that it is entitled to the requested permit pursuant to the foregoing statutory criteria. See Metropolitan Dade County v. Coscan Florida, Inc., 609 So.2d at 646. In determining whether the applicant has met its burden, the Department should take into consideration not only the direct impacts of the activity, but also the "'secondary'" impacts caused or enabled by the [activity]." The Conservancy, Inc. v. A. Vernon Allen Builder, 580 So.2d 772, 779 (Fla. 1st DCA 1991).
In the instant case, the activity for which Petitioner is seeking a permit is the removal of the plug that, prior to the 1991 storm, had separated the Sunset Acres channel and canal system from Florida Bay. In addition to the plug removal (which has already occurred), the proposed project also includes the shoaling of the shore-parallel canal to -6.0 feet MLW and the construction of bulkheads, with notches 15 feet wide and three feet deep, between each of the east-west canals and the shore-parallel canal (steps which have yet to be taken). The permit sought by Petitioner would authorize (after-the-fact) the connection of the Sunset Acres canals with the open waters of Florida Bay. Furthermore, the issuance of the permit would result in the Sunset Acres canals becoming authorized Class III waters of the state 23/ subject to the applicable water quality standards set forth in Rule Chapter 62-302, Florida Administrative Code, including the standard (described in Rule 62-302.530(31), Florida Statutes) that in Class III marine waters dissolved oxygen "[s]hall not average less than 5.0 [milligrams per liter] in a 24-hour period and shall never be less than 4.0 [milligrams per liter]."
Petitioner's proposed project involves both "dredging," as that term is defined in Section 373.403(13), Florida Statutes, 24/ and Rule 62- 312.020(7), Florida Administrative Code, 25/ and "filling," as that term is defined in Section 373.403(14), Florida Statutes, 26/ and Rule 62-312.020(11), Florida Administrative Code. 27/ To engage in such "dredging" and "filling," a permit from the Department is needed. Section 373.413, Fla. Stat.; Rule 62- 312.030(1), Fla. Admin. Code("dredging and filling conducted in, on, or over those surface waters of the state 28/ as provided in this section, require a permit from the Department").
Florida Bay is a Class III waterbody. It is among the "special waters" of the Florida Keys that have been designated (by rule) as Outstanding Florida Waters. 29/ Rule 62-302.700(9)(i), Fla. Admin. Code. (Unlike Florida Bay, the Sunset Acres canals are not Outstanding Florida Waters inasmuch as they are "artificial waterbodies," within the meaning of Rule 62-302.700(9)(i), Florida Administrative Code, which specifically excludes such "artificial waterbodies" in the Florida Keys from such designation.)
Class III surface waters are waters used for "recreation, propagation and maintenance of a healthy, well balanced population of fish and wildlife." Rule 62-302.400, Fla. Admin. Code.
"Outstanding Florida Waters" are surface waters deemed "worthy of special protection because of their natural attributes." Rule 62-302.200(17), Fla. Admin. Code. (That the Legislature believes that Florida Bay has a particular need for "such special protection" is evident from a reading of Section 373.4593, Florida Statutes, wherein the Legislature has "declar[ed] that an emergency exists regarding Florida Bay due to an environmental crisis manifested in widespread die off of sea grasses, algae blooms, and resulting decreases in marine life, [which] conditions threaten the ecological integrity of Florida Bay and surrounding areas and the economic viability of Monroe County and the State of Florida.")
The Department has announced that it is "the Department policy to afford the highest protection to Outstanding Florida Waters No
degradation of water quality, other than that allowed in Rule 62-4.242(2) ,
F.A.C., 30/ is to be permitted in Outstanding Florida Waters ,
notwithstanding any other Department rules that allow water quality lowering." Rule 62-302.700(1), Fla. Admin. Code.
In the instant case, Petitioner has not given reasonable assurance that the proposed project will not (as a result of the canal waters of Sunset Acres -with its substandard levels of DO- exchanging with the waters of Florida Bay) degrade the water quality of Florida Bay in violation of the foregoing water quality standard set forth in Rule 62-302.700(1), Fla. Admin. Code. 31/ (Providing reasonable assurance that the degradation will only be minimal or trivial is not sufficient inasmuch as Rule 62-302.700(1), Florida Administrative Code, prohibits any degradation of water quality of an Outstanding Florida Water, regardless of the extent of the degradation.) Furthermore, Petitioner has not given reasonable assurance that the three east-west canals of the Sunset Acres canal network, which will become authorized Class III waters of the state if the proposed project is permitted, will have DO levels meeting the water quality standards for Class III waters set forth in Rule 62-302.530(31), Florida Statutes. 32/ (Any violation of these standards would necessarily be caused by the proposed project inasmuch as the Sunset Acres canals would not be waters of the state subject to these standards if the connection between the canals and
Florida Bay, which Petitioner is asking the Department to authorize, did not exist.)
Petitioner has also failed to provide reasonable assurance that the proposed project is not contrary to the public interest (much less shown that such activity is clearly in the public interest). Viewing the facts of the instant case in light of the criteria and directives set forth in Section 373.414, Florida Statutes, it cannot be said that there is a substantial likelihood that, on balance, the proposed project will not have a negative impact on the public interest.
Petitioner has not proposed, nor has it agreed to, any mitigative measures that likely would offset the adverse effects of the proposed project to such an extent as to justify the Department's issuance of a permit authorizing the proposed project.
In light of the foregoing, such a permit should not be issued.
Petitioner has requested the Department, if the Department determines that the proposed project should not be permitted, to approve a modified version of the proposed project (hereinafter referred as the "modified proposed project") which includes the option of either installing "three boat lifts, one at the basin end of each of the three finger canals," in lieu of having notches in the bulkheads, or "install[ing] a single boat lift at the entrance channel and clos[ing] the entrance." In its Draft Notice of Denial (of Petitioner's amended application), the Department indicated that modifying the proposed project in such a manner would make the project acceptable. There being no dispute regarding the matter, the Department should issue a permit authorizing the modified proposed project.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that the Department of Environmental Protection enter a final order denying Petitioner's request for a dredge and fill permit for the proposed project and granting Petitioner's request for a dredge and fill permit for the modified proposed project.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of July, 1996.
STUART M. LERNER, Hearing Officer Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1996.
ENDNOTES
1/ In its Draft Notice of Denial, the Department further stated the following regarding these "cumulative impacts:"
Section 373.414(8), Florida Statutes, requires that the Department look at the cumulative impacts resulting from the issuance of a permit. In this case, the issuance of this permit would set a prece- dent for allowing the connection of existing dead-end canals to waters of the state.
Given the large number of canal systems in the Florida Keys that are similar to this canal system, and the generally poor water quality found in these canal systems, estab- lishing a precedent of allowing these systems to be connected to waters of the State would have a significant [cumulative] impact of degrading water quality in the Florida Keys Special Waters.
2/ It is undisputed that Petitioner and its members "substantial interests are affected by the proposed project."
3/ Of the approximately 58 or 59 canal-front lots in the development, six front the shore-parallel canal and the remainder lie on the three east-west (finger) canals.
4/ The plug was removed in 1979, without the benefit of a permit, and was subsequently replaced in 1980.
5/ The opening is wider, but not as deep, as the opening Petitioner had originally proposed in its permit application. (Petitioner has indicated that the opening that currently exists is sufficient for its purposes and that there no need for it do any dredging work to enlarge the opening.)
6/ Approximately 90 percent of the property owners in Sunset Acres have their permanent residences elsewhere and use their property in Sunset Acres as a vacation or weekend retreat. Approximately 30 percent of these "vacationers/weekenders" visit their property on a regular basis every weekend.
7/ Of these 5 or 6 boats only one is over 23 feet long.
8/ Because the canal had already been reopened in February of that year, Petitioner was seeking, through its application, "after-the-fact" authorization for the reopening.
9/ On the Atlantic side of Key Largo, to the east of Sunset Acres, is an open canal system with extremely low DO levels.
10/ Parts of Florida Bay periodically do not meet state standards with respect to DO levels and, at times, may even have lower levels of DO than certain areas within the Sunset Acres canals. For example, according to the results of water sampling conducted by the Department, on August 16, 1995, the level of DO at a station in Florida Bay approximately 250 feet offshore from Sunset Acres (at both one foot and four feet below the surface) was 3.1 milligrams per liter,
which was lower than the DO levels measured that very same day at ten of eleven stations in the Sunset Acres canals (at one foot below the surface).
11/ Typically, the times of the year when dissolved oxygen levels are the highest are spring and winter.
12/ Sunset Acres' aeration system was not operating at full capacity at the time of the sampling inasmuch as a portion of the system was being repaired.
13/ If the notches are constructed, there will be a free exchange of water between the top three feet of the finger canals and the shore-parallel canal.
14/ The Department conducted its sampling in the morning, when DO levels are normally the lowest.
15/ Hereinafter, the term "proposed project" will be used to refer to the shoaling of the shore-parallel canal, the constructing the notched bulkheads and the maintaining of the opening in the perimeter berm.
16/ While the installation of the notched bulkheads likely would not result in a decrease in the already substandard DO levels of the waters in the east-west canals, there is no reason to believe, based upon the evidence adduced at hearing, that DO levels of the top three feet of these canal waters would be substantially better than they are now.
17/ In measuring the impact of the proposed project on Florida Bay, it must be remembered that Petitioner is seeking after-the-fact authorization to connect the Sunset Acres canals to Florida Bay. Accordingly, the effects of the proposed project must be measured, not against existing conditions, but against the conditions that would exist if the opening in the perimeter berm were closed and the Sunset Acres canals and Florida Bay were no longer connected.
18/ The canal network's aeration system, at least to the extent that it operates to mix the waters of the east-west canals, might actually serve to increase the severity of this adverse impact inasmuch as the system's mixing action could result in the top three feet of surface waters of the east-west canals having lower levels of dissolved oxygen than they would in the absence of an aeration system.
19/ The giving of a conservation easement in favor of the Department (prohibiting the construction of such docking facilities) would be a way of reasonably preventing the foregoing scenario from occurring. The Department, however, does not typically accept conservation easements from property owners associations.
20/ Fishing opportunities in the area thus would also be negatively impacted.
21/ Whether these canal systems are authorized to be open is unclear from the record in the instant case.
22/ "Waters," as defined in Section 403.031(13), Florida Statutes, "include, but are not limited to, rivers, lakes, streams, springs, impoundments, and all other waters or bodies of water, including fresh, brackish, saline, tidal, surface, or underground waters. Waters owned entirely by one person other than the state are included only in regard to possible discharge on other property or water."
23/ Unless specifically classified otherwise, all surface waters of the state are Class III waters. Rule 62-302.600(1), Fla. Admin. Code.
24/ Section 373.403(13), Florida Statutes, defines "dredging" as "excavation, by any means, in surface waters or wetlands, as delineated is s. 373.421(1)."
25/ Rule 62-312.020(7), Florida Administrative Code, defines "dredging" as "the excavation, by any means, in waters of the state."
26/ Section 373.403(14), Florida Statutes, defines "filling" as the "deposition, by any means, of materials in surface waters or wetlands, as delineated in s. 373.421(1)."
27/ Rule 62-312.020(11), Florida Administrative Code, defines "filling" as "the deposition, by any means, of materials in waters of the state."
28/ For purposes of Rule 62-312.030, Florida Administrative Code, "surface waters of the state" include Florida Bay, as well as "excavated water bodies . .
. which connect directly or via an excavated water body or series of excavated water bodies" to Florida Bay. Rule 62-312.030(2), Fla. Admin. Code.
29/ Unlike the instant case, neither Pacetti v. Department of Environmental Regulation, 8 FALR 4050 (DER 1986), nor Caloosa Property Owners' Association, Inc. v. Department of Environmental Regulation, 462 So.2d 523 (Fla. 1st DCA 1985), two cases upon which Petitioner relies, involved proposed activity potentially impacting Outstanding Florida Waters.
30/ Rule 62-4.242(2), Florida Administrative Code, provides, in pertinent part, as follows:
Standards Applying to Outstanding Florida Waters
No Department permit . . . shall be issued for any proposed activity or discharge within an Outstanding Florida Waters, or which significantly degrades, either alone or in combination with other stationary installa- tions, any Outstanding Florida Waters, unless the applicant affirmatively demonstrates
that: . . .
The proposed activity o[r] discharge is clearly in the public interest, and either
A Department permit for the activity has been issued or an application for such permit was complete on the effective date of the Outstanding Florida Water designation; or
The existing ambient water quality within Outstanding Florida Waters will not be lowered as a result of the proposed activity or dis- charge, except on a temporary basis during construction for a period not to exceed thirty days; lowered water quality would occur only within a restricted mixing zone approved by the Department; and, water quality criteria would not be violated outside the restricted mixing zone. The Department may allow an extension of the thirty-day time limit on a construction caused degradation for a period demonstrated by the applicant to be unavoid-
able and where suitable management practices and technology approved by the Department are employed to minimize any degradation of water quality.
The Department recognizes that it may be necessary to permit limited activities or discharges in Outstanding Florida Waters to allow for or enhance public use or to main- tain facilities that existed prior to the effective date of the Outstanding Florida Water designation, or facilities permitted after adoption of the Outstanding Florida Water designation. However, such activities or discharges will only be permitted if:
The discharge or activity is in compliance with the provisions specified in subparagraph (2)(a)2. of this section; or,
Management practices and suitable technology approved by the Department are implemented for all stationary installations, including those created for drainage, flood control, and by dredging and filling; and
There is no alternative to the proposed activity, including the alternative of not undertaking any change, except at an unreasonably higher cost.
For the purpose of this section the term "existing ambient water quality" shall mean (based on the best scientific information available) the better water quality of either
that which could reasonably be expected to have existed for the baseline year of an Outstanding Florida Water designation or (2) that which existed during the year prior to the date of a permit application. It shall include daily, seasonal, and other cyclic fluctuations, taking into consideration the effects of allowable discharges for which Department permits were issued or appli- cations for such permits were complete on the effective date of designation.
Rule 62-4.242(2) shall not apply to any dredge or fill activity or any discharge to an Outstanding Florida Water permitted by the Department on, or for which a complete permit application was filed on, the effective date of an Outstanding Florida Water designation; nor shall it apply to any renewal of a Department permit where there is no modifi- cation in the dredge and fill activity or discharge which would necessitate a permit review.
Any activity that is exempted from permit programs administered by the Depart- ment is not subject to the requirements of Rule 62-4.242. . . .
31/ In making this determination, the Hearing Officer has taken into consideration the measures that Petitioner has offered to take to attempt to raise DO levels in the Sunset Acres canals.
32/ Whether the Department should grant Petitioner "an appropriate exemption, exception or variance from the dissolved oxygen requirements of applicable administrative rules, as to the waters of the finger canals behind (landward of) the sills," as Petitioner has requested in its post-hearing amendment to its amended application, is beyond the scope of the issues listed in the parties' joint prehearing stipulation and therefore will not be addressed by the Hearing Officer. See Esch v. Forster, 168 So. 229, 231 (Fla. 1936)("[w]here parties by stipulation prescribe the issues on which the case is to be tried, they are estopped from thereafter asserting that the case was submitted on the wrong theory; and a stipulation of this nature . . . amounts to a binding waiver and elimination of all issues not included"); Lotspeich v. Neogard Corporation, 416 So.2d 1163, 1165 (Fla. 3d DCA 1982)("[p]retrial stipulations prescribing the issues on which a case is to be tried are binding on the parties and the court, and should be strictly enforced").
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-7958
The following are the Hearing Officer's specific rulings on what are labelled as "findings of facts" in the parties' proposed recommended orders:
Petitioner's Proposed "Findings of Fact"
Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.
Third sentence: Rejected because it lacks sufficient evidentiary/record support; Remaining sentences: Accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; Second and third sentences: Not incorporated in this Recommended Order because, even if true, they would not alter the outcome of the instant case.
Rejected as a finding of fact because it is more in the nature of a statement of law than a finding of fact.
5-11. Accepted and incorporated in substance.
12. First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected as a finding of fact because it is more in the nature of a recitation of testimony adduced at hearing than a finding of fact. See
T.S. v. Department of Health and Rehabilitative Services, 654 So.2d 1028, 1030 (Fla. 1st DCA 1995)(hearing officer's factual findings which "merely summarize[d] the testimony of witnesses" were "insufficient").
13-16. Accepted and incorporated in substance.
Not incorporated in this Recommended Order because, even if true, it would not alter the outcome of the instant case.
Second sentence, before first comma: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact; Second sentence, after last comma: Rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact; Remainder of proposed finding: Accepted and incorporated in substance.
19-25. Accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected as a finding of fact because it is more in the nature of a recitation of testimony adduced at hearing than a finding of fact.
Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact.
Accepted and incorporated in substance.
Rejected as a finding of fact because it is more in the nature of a summary/recitation of testimony adduced at hearing than a finding of fact.
Rejected as a finding of fact because it is more in the nature of a summary of, and commentary regarding, testimony adduced at hearing than a finding of fact.
Rejected as a finding of fact because it is more in the nature of argument regarding the credibility of, and significance to be accorded, evidence adduced at hearing than a finding of fact.
Rejected as a finding of fact because it is more in the nature of a summary of, and commentary regarding, testimony adduced at hearing than a finding of fact.
Accepted and incorporated in substance.
First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it lacks sufficient evidentiary/record support; Fourth sentence: Rejected as a finding of fact because it is more in the nature of a summary of, and commentary regarding, testimony adduced at hearing than a finding of fact.
First sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact; Second sentence: Accepted and incorporated in substance; Third sentence: Rejected because it is contrary to the greater weight of the evidence; Fourth sentence: Rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact.
Accepted and incorporated in substance.
First sentence, before first comma: Accepted and incorporated in substance; First sentence, after first comma: To the extent that this proposed finding states that the referenced impact will be minimal, it has been accepted and incorporated in substance. To the extent that it states that such impact is of no legal significance, it has been rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact; Second sentence: Rejected as a finding of fact because it is more in the nature of a summary of, and commentary regarding, testimony adduced at hearing than a finding of fact; Remainder of proposed finding: Rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact.
To the extent that this proposed finding states that the "degrading impact on Florida Bay [resulting from] the permit as requested, with the notches" will be minimal and that there is no need for any work (associated with the proposed project) to "be carried out within Florida Bay," it has been accepted and incorporated in substance. Otherwise, it has been rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact.
39-45. Rejected as findings of fact because they are more in the nature of summaries/recitations of, and/or commentaries regarding, testimony adduced at hearing than findings of fact.
To the extent that this proposed finding states that, in its post- hearing amendment to its amended application, Petitioner agreed "that upon the Department's granting of a permit/certification to allow the notches in the three sills, [Petitioner] shall prohibit, by conservation easement in favor [of] the State (DEP), the construction of any type of docking or mooring facility within the shoaled basin, other than as to boats owned by the owners of the six lots which front the shore-parallel-canal," it has been accepted and incorporated in substance. Otherwise, it has been rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact.
Rejected as a finding of fact because it is more in the nature of a summary of, and commentary regarding, testimony adduced at hearing than a finding of fact.
Rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact.
49-50. Accepted and incorporated in substance.
Rejected as a finding of fact because it is more in the nature of a summary/recitation of testimony/evidence adduced at hearing than a finding of fact.
To the extent that this proposed finding makes reference to canal systems similar to the Sunset Acres system that are closed (that is, not currently connected to waters of the state), it has been accepted and incorporated in substance.
53-54. Rejected as findings of fact because they are more in the nature of summaries/recitations of, and commentaries regarding, testimony adduced at hearing than findings of fact.
The Department's Proposed "Findings of Fact"
1-21. Accepted and incorporated in substance.
22-25. Rejected as findings of fact because they are more in the nature of legal argument than findings of fact.
26-39. Accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact.
Rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact.
Accepted and incorporated in substance.
Rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact.
44-49. Accepted and incorporated in substance.
50-51. Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
52-54. Accepted and incorporated in substance.
55. Rejected because it is contrary to the greater weight of the evidence. 56-57. Accepted and incorporated in substance.
Rejected because it is more in the nature of legal argument than a finding of fact.
Rejected because it is contrary to the greater weight of the evidence.
Accepted and incorporated in substance.
Rejected because it is contrary to the greater weight of the evidence.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it is contrary to the greater weight of the evidence.
Rejected because it is contrary to the greater weight of the evidence.
Accepted and incorporated in substance.
65-66. Rejected as findings of fact because they are more in the nature of legal argument.
67-71. Accepted and incorporated in substance.
72. Rejected because it is contrary to the greater weight of the evidence. 73-83. Accepted and incorporated in substance.
84-87. Rejected as findings of fact because they are more in the nature of legal argument than findings of fact.
88. Accepted and incorporated in substance.
89-90. To the extent that these proposed findings refer to levels of DO, they have been accepted and incorporated in substance. Otherwise, they have not
been incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
91-92. Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
93-95. Rejected as findings of fact because they are more in the nature of legal argument than findings of fact.
96. To the extent that this proposed findings states that any docks built in the canals would be exempt from permitting requirements, it has been rejected as a finding of fact because it is more in the nature of legal argument than a finding of fact. To the extent that it states that, if such docks were constructed, they "could shade the water which would further lower the DO" and [t]hus, the canals would be further degraded," it has been accepted and incorporated in substance.
97-98. Rejected as finding of fact because they are more in the nature of legal argument than findings of fact. Moreover, they concern an issue that is beyond the scope of the issues submitted to the Hearing Officer for resolution.
99. Accepted and incorporated in substance.
COPIES FURNISHED:
William J. Roberts, Esquire Tom R. Moore, Esquire Roberts & Egan
217 South Adams Street Tallahassee, Florida 32301
Lynette L. Ciardulli, Esquire Douglas H. MacLaughlin, Esquire
Department of Environmental Protection 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Virginia B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Kenneth Plante, General Counsel Department of Environmental Protection Office of the General Counsel
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period of time within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
SUNSET ACRES PROPERTY OWNERS ASSOCIATION,
Petitioner,
V. OGC CASE NO. 91-1776
DOAH CASE NO. 91-7958
DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Respondent.
/
FINAL ORDER
On July 24,1996, a Hearing Officer with the Division of Administrative Hearings (hereafter "DOAH"), submitted his Recommended Order to the Respondent, Department of Environmental Protection (hereafter "Department"). 1/ A copy of the Recommended Order was also served upon the Petitioner, Sunset Acres Property Owners Association (hereafter "Sunset Acres"). A copy of the Recommended Order is attached hereto as Exhibit A. On August 8,1996, Sunset Acres filed its Exceptions to Recommended Order and Request for Oral Argument. The Department's Responses to Sunset Acres' Exceptions and Request for Oral Argument were served on August 19, 1996. A Proposed Final Order was filed by Sunset Acres on August 23, 1996. The matter is now before the Secretary of the Department for final agency action.
BACKGROUND
Sunset Acres is a mobile home subdivision developed in the early 1970's. The subdivision is located between Community Harbor and the Overseas Highway (U.S. 1) on the southwest end of Key Largo in Monroe County, Florida. Sunset Acres contains about 80 lots, most of which are developed. Approximately 60 of the canal-front lots have seawalls. On March 23,1989, Sunset Acres filed an application with the Department seeking a permit authorizing the connection to Community Harbor in Florida Bay of its then-closed (but now open) canal system. 2/ The Sunset Acres canal system consists of three finger canals, each connected at their waterward end to an outer basin, which the parties have referred to as the "shore-parallel canal". The 1989 application sought a permit from the Department to remove a portion of the earthen perimeter berm and to excavate two flushing cuts through the berm then separating the interior shore- parallel canal from the access channel to Florida Bay.
In February of 1991, before the Department had made a determination to deny the 1989 application, the canal system of Sunset Acres was again connected to the waters of Florida Bay by means of the access channel due to a breach in the perimeter berm apparently caused by storm damage. No action has been taken to
repair the damage to the perimeter berm caused by the 1991 storm, and the Sunset Acres property owners have had boating access to Florida Bay since that time.
Neither the Department nor any of its predecessor agencies have ever authorized the connection of the Sunset Acres canal system to the waters of Florida Bay.
On August 30,1991, the Department issued a Notice of Permit Denial on Sunset Acres' 1989 application. Sunset Acres then filed a petition challenging the Department's intended action to deny its permit application and requesting a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes.
The Department referred the matter to DOAH for assignment of a Hearing Officer to conduct all necessary proceedings required by law and to submit a recommended order. The parties then engaged in lengthy settlement negotiations which resulted in agreement on some, but not all, of the issues in dispute.
On or about March 25,1996, Sunset Acres submitted an amended application in light of the "partial settlement" it had reached with the Department. (Joint Exhibit 1) This 1996 amended application requested the Department to issue an after-the-fact permit allowing the existing access channel to Florida Bay to continue to remain connected to the waters of the Sunset Acres canal system on a permanent basis. The 1996 amended application also requested permission to backfill the Sunset Acres shore parallel canal and construct docks therein, construct three permanent fill sills and bulkheads to separate the three finger canals from the shore-parallel canal. This 1996 amended application also featured a critical request to construct notches 15 feet wide and three feet deep in each of the three bulkheads to allow boat navigation from the three finger canals to the shore-parallel canal and through the opening in the berm to the waters of Florida Bay. 3/
On April 9,1996, the Department issued a Draft Notice of Denial stating its intention to deny Sunset Acre's proposed project on various grounds, including determinations that the proposed activity was expected to cause a violation of water quality standards for dissolved oxygen (hereafter "DO"), and would degrade the waters of Florida Bay, an Outstanding Florida Water (hereafter "OFW'). 4/ (Joint Exhibit 2) The Department's Draft Notice of Denial also concluded that the proposed activity would be "contrary to the public interest", and "not clearly in the public interest" for those portions of the activity that significantly degrade Florida Bay.
On April 10,1996, the parties filed a Joint Prehearing Stipulation with DOAH in which they expressed their agreement "that the project in dispute is the modified project as outlined in the Petitioner's Amended Petition/Application and denied by the Department in the Draft Notice of Denial." The Joint Prehearing Stipulation listed various issues of fact and law that remained to be litigated by the parties at the formal hearing and decided by the Hearing Officer. These disputed issues of fact and law are set forth on pages seven and eight of the Recommended Order attached hereto as Exhibit A.
A formal hearing was held on April 18 and 19,1996, in Miami, Florida, before DOAH Hearing Officer Stuart M. Lerner (hereafter "Hearing Officer"). The parties presented the testimony of various expert and lay witnesses at the formal hearing, and a total of 13 exhibits were admitted into evidence. At the close of the evidentiary portion of the hearing, the Hearing Officer advised the parties on the record that post-hearing submittals had to be filed no later than
20 days following the Hearings Officer's receipt of the transcript of the hearing. On April 24, 1996, Sunset Acres filed a post-hearing amendment to its amended application, the terms of which are set forth in full on pages nine and ten of the Recommended Order attached as Exhibit A.
In this post-hearing submittal, Sunset Acres essentially declared that it had no further interest in the establishment of boat slips within the shore- parallel canal. Sunset Acre's post-hearing submittal asserts that it only seeks approval from the Department for the construction of three 15' x 3' notches in the three sills, which otherwise will separate and close the three finger canals from the shore-parallel canal. Sunset Acres asserted that its post-hearing amendment was made to formalize assurances given at the formal hearing to the Hearing Officer and the Department of its intent to limit the storage and mooring of boats within the Sunset Acres canal system to the finger canals themselves, with the minor exception of boats of the owners of the six lots fronting on the shore-parallel canal. Sunset Acres' post-hearing amendment also attempted to further amend its Amended Petition/Application by belatedly requesting that the Department grant "an appropriate exemption, exception or variance from the dissolved oxygen requirements of applicable administrative rules, as to the waters of the finger canals behind (landward of) the sills."
The Hearing Officer entered his Recommended Order in the DOAH proceedings on July 24,1996. In his Recommend Order, the Hearing Officer concluded that Sunset Acres had failed to provide reasonable assurance 5/ that its proposed dredge and fill project would not violate water quality standards for dissolved oxygen and would not degrade the water quality of Florida Bay, a Class III OFW. The Hearing Officer ultimately recommended that the Department deny the permit for the proposed project. The Hearing Officer did recommend, however, that the Department issue to Sunset Acres a permit for a "modified proposed project" based on the "Proposed Changes" set forth in Section IV of the Department's Draft Notice of Denial issued on April 9,1996. (Joint Exhibit 2)
RULING ON SUNSET ACRES' MOTION FOR ORAL ARGUMENT
Sunset Acres also requested oral argument before the Secretary in connection with its Exceptions to the Hearing Officer's Recommended Order. The provisions of Rule 62-103.200(3), Florida Administrative Code, state that the Secretary of the Department, in her discretion, may grant oral argument in support of a party's exceptions to a Recommended Order submitted by a DOAH hearing officer. The matters now before the Secretary for consideration on agency review, however, are adequately set forth in the written Exceptions to Recommended Order filed by Sunset Acres and in the Department's written Responses. Consequently, oral argument is not necessary to clarify the issues in this case and Sunset Acres' Request for Oral Argument is denied.
RULINGS ON EXCEPTIONS OF SUNSET ACRES
Preface
As a preface to the following rulings on these exceptions, it is appropriate to comment here upon the standards of review imposed by Florida law on administrative agencies reviewing recommended orders of hearing officers.
Under Section 120.57(1)(b)10, Florida Statutes, a reviewing agency is free to reject or modify a hearing officer's conclusions of law and interpretations of administrative rules with which the agency disagrees. See, also, MacPherson v. School Board of Monroe County, 505 So.2d 682 (Fla. 3d DCA 1987); Siess v. Dept. of Health and Rehabilitative Services, 468 So.2d 478 (Fla. 2d DCA 1985); Ales v. Dept. of Professional Regulation, 423 So.2d 624 (Fla. 5th DCA 1982).
These statutory provisions of Section 120.57(1)(b)10 prescribe, however, that the findings of fact of a hearing officer may not be rejected or modified,
"unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence..." Accord Martuccio v. Dept. of Professional Regulation, 622 So.2d 607, 609 (Fla. 1st DCA 1993); Freeze v. Dept. of Business Regulation, 556 So.2d 1204,1205 (Fla. 5th DCA 1990); Florida Department of Corrections v. Bradley, 510 So.2d 1122,1123 (Fla. 1st DCA 1987).
Sunset Acres has structured its Exceptions to Recommended Order under headings referring back to various stipulated issues of law and fact, rather than to "specific findings of fact, conclusions of law, or a recommendation" of the Hearing Officer as provided in Rule 62-103.200(1), Florida Administrative Code. Nevertheless, the Secretary will attempt to deal with these exceptions by addressing the various significant issues raised.
I. General (Broad) Exception to Hearing Officer's Recommendation
This first exception of Sunset Acres is precisely as titled by Sunset Acres, a generalized broad exception to that portion of the Hearing Officer's Recommendation suggesting that a permit be denied for the three requested "notches" or openings in the finger canals to the "shore-parallel" canal and ultimately to Florida Bay through the presently unauthorized opening in the berm. This exception, consisting essentially of "opening argument" of counsel, is denied for the reasons set forth in the following rulings on Sunset Acres' Exceptions II and VI.
Exceptions II and VI
These two exceptions deal with the basic question of whether Sunset Acres provided reasonable assurance that the amended project would comply with the applicable water quality standards for Class III waters. 6/ One of the primary grounds cited for permit denial in the Department's Draft Notice of Denial was persistent violations of DO standards in the waters of the canal system. The Draft Notice of Denial also referred to potential violations of lead and copper standards in the canal system and Florida Bay. 7/
A. Violations of Dissolved Oxygen (DO) Standards for Class III Waters
It is undisputed that there has been a long-standing problem with DO violations in the three east-west finger canals at Sunset Acres since the 1970's. The existence of this long-term problem with substandard DO levels in the finger canals was acknowledged on pages four and five of Sunset Acres' Exceptions to Recommended Order and by the testimony at the DOAH hearing of Sunset Acres' own expert witnesses Earl Rich and Jack Bateman.
The Hearing Officer's unchallenged Findings of Fact 48-52 establish the undisputed fact that water quality testing conducted on behalf of Sunset Acres less than a week before the DOAH final hearing was held confirmed that substandard DO levels continue to exist in the finger canals. 8/ The Hearing Officer's unchallenged Finding of Fact 53 also established that similar findings of repeated DO violations in the waters of the finger canals at Sunset Acres were contained in water quality tests conducted by Department staff during a period of time beginning in August of 1995 and ending on April 8,1996, ten days prior to the DOAH hearing. 9/
In Conclusion of Law 73, the Hearing Officer concluded that all the waters of the Sunset Acres' canal system would become "Class III" waters in the event that a permit is issued by the Department for the proposed project allowing the
notches in the three bulkheads (or sills) and a permanent opening in the perimeter berm of the canal system to the waters of Florida Bay. I concur with this conclusion of the Hearing Officer, which is also consistent with the expert testimony at the DOAH hearing of Sunset Acres expert witness Edward Swakon.
Rule 62-302.600(1), Florida Administrative Code, provides that all surface waters 10/ of the State of Florida are classified as Class III waters, except for certain waters specifically described in that rule. Waters of the canal system of Sunset Acres permanently connected to the waters of Florida Bay by the three notches and the opening in the perimeter berm pursuant to a permit from the Department would not be included in any of the designated water bodies excepted from the classification of Class III waters.
The Department's DO standards for Class III marine waters is that the DO levels "shall not average less than 5.0 [milligrams per liter] in a 24-hour period and shall never be less than 4.0." See Rule 62-302.530(31), Florida Administrative Code. The results from the water quality tests conducted on behalf of Sunset Acres during the week prior to the DOAH hearing reflect, among other things, in excess of 20 samples from the Sunset Acres finger canals having DO levels below 4.0 milligrams per liter in violation of Department Rule 62- 302.530(31). In addition, the Department's unchallenged test results cited with approval and summarized in the Hearing Officer's Finding of Fact 53 evidence an average DO level for the Sunset Acres canal waters over the sampling period of approximately 3.7 milligrams per liter in violation of Rule 62-302.530(31).
As noted above, Sunset Acres' Exceptions to Recommended Order do not directly dispute these critical factual findings of the Hearing Officer of repeated DO violations in the three finger canals at Sunset Acres. Instead, Sunset Acres makes several arguments considered hereafter concluding that it is entitled to the requested permit despite this uncontroverted evidence of repeated DO violations in the waters of its canal system.
B Issue of After-the-Fact Permit
One of Sunset Acres' arguments is that the waters of its canal system are, and have been for some time, "surface waters of the state" pursuant to Section 373.414, Florida Statutes, due to the current unauthorized opening in the perimeter berm apparently resulting from storm damage to the berm in February of 1991. Sunset Acres thus concludes that the Department and the Hearing Officer erred by not treating its amended project application as a request for a dredge and fill permit in existing surface waters of the state, rather than as an after-the-fact permit to have its closed man-made canal system permanently connected to the waters of Florida Bay. This argument that the waters of the
Sunset Acres canal system are currently "surface waters of the state" for dredge and fill permitting purposes is without merit.
The conclusion that this permit proceeding presently involves an "after- the-fact" amended permit request for dredge and fill activities to permanently maintain an unauthorized opening into the waters of Florida Bay from an artificial water body 11/ is supported by the undisputed fact that at the time Sunset Acres filed its initial permit application in March of 1989 the perimeter berm was intact and the canal system was closed. This initial permit application was later amended by Sunset Acres in 1996 to reflect the subsequent opening of the canal waters to Florida Bay by a breach in the perimeter berm in February of 1991 apparently due to storm damage. The current after-the-fact character of this permit proceeding is evidenced by the specific references to the "after-the-fact" nature of the amended project on page two of Sunset Acres'
own Amended Application filed in 1996 and on page one of the Department's related Draft Notice of Denial issued in 1996. (Joint Exhibits 1 and 2)
Sunset Acres argues, in essence, that the "de facto" connection of its previously authorized closed canal system to the waters of Florida Bay in 1991 should be treated as an "authorized" connection for dredge and fill permitting purposes because it apparently resulted from natural causes or an "act of God", rather than from an illegal action of Sunset Acres or its agents. No legal authorities are cited by Sunset Acres to support this argument.
I conclude that for waters in an authorized closed canal system to become "surface waters of the state within the purview of Section 373.414, Florida Statutes, and Rule 62-312.030, Florida Administrative Code, by virtue of being connected to an existing surface water of the state, such connection must be one duly permitted by the Department or other authorized permitting agency. I also adopt the Hearing Officer's Conclusion of Law 67 concluding in part that the "permit sought by Petitioner would authorize (after-the-fact) the connection of the Sunset Acres canals with the open waters of Florida Bay."
Issue of Applicability of "Net Improvement" Provisions of Section 373.41 4(1
)(b), Florida Statutes.
Sunset Acres contends that, despite the persistent DO violations in the canal waters, the amended project should still be permitted based on the "net improvement" provisions of Section 373. 414(1)(b), Florida Statutes, which read in pertinent part as follows:
If the applicant is unable to meet water quality standards because existing ambient water quality does not meet standards, ... the Department shall consider mitigation methods proposed by the applicant that cause net improvement of the water quality in the receiving body of water for those parameters which do not meet standards. (emphasis supplied)
Sunset Acres' reliance on these statutory "net improvement" provisions for permit approval under the facts presented in this case is misplaced for the following reasons:
I concluded in the preceding ruling that the waters of the Sunset Acres canal system are not currently "surface waters of the state" within the purview of Section 373.414, Florida Statutes. Thus, these canal waters currently unable to meet the DO water quality standards may not be properly considered in the determination of whether "existing ambient water quality does not meet standards" under the above-quoted provisions of Section 373.414(1 )(b).
The water quality tests performed by Jack Bateman for Sunset Acres immediately prior to the DOAH hearing contained 38 readings of water samples taken at a station in Florida Bay near Sunset Acres. Not one of these 38 samples reflect a DO level below 5.0 milligrams per liter. (Petitioner's Composite Exhibit 3) The water quality tests conducted by Department staff contain 30 test results of samples taken at two stations in Florida Bay near Sunset Acres. Only two of these 30 samples reflect DO levels in Florida Bay below the Department minimum standard of 4.0 milligrams per liter, and these two substandard samples were taken eight months prior to the DOAH hearing. (Respondent's Exhibit 4) The 66 more recent test results exceeding the minimum DO levels constitute competent substantial evidence of record that the "existing
ambient water quality" of Florida Bay meets the DO standards for Class III waters.
Even assuming, arguendo, that the record clearly established that the "existing ambient water quality" of Florida Bay is currently unable to meet Department DO standards, Sunset Acres would still not be entitled to a dredge and fill permit in this case under Section 373.414(1)(b), Florida Statutes. There is evidence of record that the waters of the three east-west finger canals having persistent substandard DO levels would not have a measurable negative impact on the DO levels in the ambient waters of Florida Bay if the proposed project is permitted. There is no competent substantial evidence of record, however, that these substandard canal waters would have a measurable positive impact on the ambient waters of Florida Bay. 12/ Consequently, Sunset Acres has clearly failed to demonstrate that its proposed project would "cause net improvement" of the water quality of Florida Bay with respect to DO levels as required by the provisions of Section 373.414(1)(b).
Issue of Sunset Acres' Post-hearing Amendments to Application
On April 24,1996, after the formal hearing was concluded, Sunset Acres filed with DOAH an "Amendment to Amended Petition/Application". This post- hearing pleading of Sunset Acres proposes significant changes to the permit application which was before the Hearing Officer for consideration at the formal hearing. Among the significant changes proposed in this post-hearing submittal by Sunset Acres are the deletion of the construction of the boat slips in the shore-parallel canal, granting of a conservation easement in favor of the Department, installation of additional aeration devices, and an alternative request that the Department grant "an appropriate exemption, exception or variance" as to the DO standards with respect to the waters of the three finger canals.
These attempted post-hearing amendments to Sunset Acres' permit application were not analyzed by Department permit review staff and were not considered on their merits in the Recommended Order of the Hearing Officer. To the contrary, the Hearing Officer ruled in footnote 32 to Conclusion of Law 73 that Sunset Acres' request for an appropriate exemption, exception, or variance from the DO standards for the waters of the finger canals "is beyond the scope of the issues listed in the parties' joint prehearing stipulation and therefore will not be addressed by the Hearing Officer." 13/
I concur with this ruling of the Hearing Officer. Sunset Acres' post- hearing application amendments would require an analysis and a preliminary notice of issuance or denial by Department permit review staff, and the matter would have to be referred to DOAH for another formal hearing if the Department's preliminary action was challenged by Sunset Acres or by an interested third party having standing. See, e.g., Jayne v. Dept. of Environmental Regulation, 7
F.A.L.R. 5922, 5923 (Fla. DER 1985). This new post-hearing request for a variance from the Department DO standards also fails to comply with the provisions of Section 403.201, Florida Statutes, and Rule 62-4.050(4)(d)6, Florida Administrative Code. The cited statutory and rule provisions require a separate application for variance, a separate variance application fee, a new public notice, and a new point of entry for interested parties who may desire to file a petition challenging the grant of such variance. See, also, Alden Pond. Inc. v. Dept. of Environmental Protection, 16 F.A.L.R. 4263 (Fla. DEP 1994)(holding that a variance request constitutes a separate application legally distinguishable from a related permit proceeding).
The permit application now before the Secretary for review in this case is the application as to which evidence was presented to the Hearing Officer at the DOAH hearing. This permit application is the "Amended Petition/Application" submitted by Sunset Acres to the Department in March of 1996 and admitted into evidence at the DOAH hearing as "Joint Exhibit 1". Sunset Acres has cited no legal authorities arguably giving the Secretary the authority to consider, on agency review of a hearing officer's recommended order, the merits of post- hearing permit modifications not reviewed by Department staff and not addressed in findings of fact of the hearing officer based on the evidence presented at the DOAH hearing.
It is established case law in Florida that a reviewing agency has no authority to make independent and supplementary findings of fact to support its conclusions of law. See, e.g., Manasota 88. Inc. v. Tremor, 545 So.2d 439, 441 (Fla. 2d DCA 1989); Friends of Children v. Dept. of H.R.S., 504 So.2d 1345,1348 (Fla. 1st DCA 1987); Cohn v. Dept. of Professional Regulation, 477 So.2d 1039,1047 (Fla. 3d DCA 1985). The agency's scope of review of findings of fact in a recommended order is limited to ascertaining, whether a hearing officer's factual findings are supported by competent substantial evidence of record.
North Port. Fla. v. Consolidated Minerals, 645 So.2d 485, 487 (Fla. 2d DCA 1994). There are no underlying findings of fact of the Hearing Officer in the Recommended Order related to the sufficiency of the matters raised in Sunset Acres' post-hearing "Amendment to Amended Petition/Application". Therefore, am precluded by law from considering these belated post-hearing matters in reaching the ultimate determination of whether reasonable assurance has been provided by Sunset Acres that its proposed project will comply with applicable water quality standards.
Issue of "Modified Proposed Project"
In the Recommended Order, the Hearing Officer recommends that the Department deny the permit for the proposed project before the Hearing Officer for consideration at the DOAH hearing. The Hearing Officer does recommend, however, that the Department should issue a permit to Sunset Acres for a project referred to by the Hearing Officer as the "modified proposed project". This "modified proposed project" is described in general terms in Section IV of the Department's 1996 Draft Notice of Denial. In Section IV, the Department advised Sunset Acres that the following changes to the project may enable the Department to grant a permit:
The existing opening in the breakwater earthen berm should be filled in, rather than widened and deepened for boat access. This would serve to isolate the poorer quality surface waters of the existing canals from the adjacent waters of Florida Bay, an Outstanding Florida Water. I order to maintain the existing level of boat use in the
now-open canal, a boat lift could be constructed at the location of the existing opening. The original permit for the canal system authorized a boat lift to provide boat access from the canals. It is possible that some type of boat lift, located on the perimeter berm at the existing access channel, could be favorably reviewed by the Department as a means of providing boat access to the canal system, provided that the lift were designed to minimize loss to natural resources as a consequence of construction activities and boat related uses.
An alternative approach would be to construct the access
opening in the berm by expanding the existing opening, constructing permanent fill structures to isolate the finger canals from the shore-parallel canal, and backfilling the shore-parallel canal to no less tha[n] -6 ft, MLW. Limited permanent mooring could be authorized in the shore-parallel canal only. No notches or similar surface water connections would be provided to the finger canals. A boat lift at each finger canal's plug, however, would be acceptable. (Joint Exhibit 2)
There is no competent substantial evidence of record that any of these suggested changes were ever incorporated into Sunset Acres' amended application specifications and engineering designs. Thus, the adequacy of these general suggestions by Department staff of possible changes in Sunset Acres' amended application were not supported by evidence presented at the DOAH hearing.
Furthermore, the Hearing Officer never made any underlying findings of fact addressing the sufficiency of these general suggestions to establish compliance with the applicable water quality standards.
The Hearing Officer's recommendation that the Department issue a dredge and fill permit for a "modified proposed project" not supported by evidence presented at the DOAH hearing would appear to be prohibited by the court's decision in Metropolitan Dade County v. Coscan Florida. Inc., 609 So.2d 644 (Fla. 3d DCA 1992). The court ruled in the Coscan opinion that:
We conclude that the hearing officer must examine the applicant's proposal to determine [at this time] whether the project provides the necessary reasonable assurances called for by the statute. [emphasis supplied].
Id. at 609 So.2d 648
The Coscan decision was expressly relied upon in the Department's final orders in Paul Leto. et al. v. Dept. of Environmental Protection. et al., OGC Case No. 94-3756 (DEP Final Order entered July 12, 1996); and Tamaron Utilities. Inc. v. Dept. of Environmental Protection, 16 F.A.L.R. 3112 (Fla. DEP 1994).
Based on the Coscan rationale, the Leto Final Order rejected recommendations by the hearing officer that the Secretary of the Department consider on administrative review whether certain changes to the design of the proposed structures that the permit applicants were purportedly willing to make might entitle the project to a statutory exception. In the Tamaron Utilities case, the agency Final Order relied on the Coscan decision by concluding as follows:
The attempt of the Hearing Officer to impose upon the Department the duty to draft conditions in the Final Order that might or might not ultimately result in Tamaron s compliance with the Grizzle-Figg advanced waste
treatment requirements is too speculative to comply with Florida case law holding that a permit applicant has to provide reasonable assurances at the time of the hearing] that the project complies with the applicable
statutory and rule requirements for design, operation and discharge. [emphasis supplied] Id. at 3122.
In this case, like Tamaron Utilities, it is too speculative to determine on agency review whether a recommendation that a permit be issued for a "modified proposed project" will comply with applicable water quality standards, absent
any expert testimony or other evidence in the DOAH record addressing the sufficiency of the proposed modifications. Consequently, the recommendation of the Hearing Officer that the Department issue a permit for a "modified proposed project" based on these general suggestions by the Department in the Draft Notice of Denial as to potential changes in the application that "may entitle" Sunset Acres to a permit is rejected.
In view of the above matters, Sunset Acres' Exceptions II and VI are denied.
Exceptions III and IV
These two exceptions appear to take exception to the Hearings Officer's Conclusion of Law 73 interpreting the provisions of Rule 62-4.242(2), Florida Administrative Code, dealing with the restrictive antidegradation permitting requirements applicable to Outstanding Florida Waters. Rule 62-4.242(2) reads in pertinent part that:
(a) No Department permit. . . shall be issued [for any proposed activity or discharge within an Outstanding Florida Waters. or which significantly degrades], either alone or in combination with other stationary installations, [any Outstanding Florida Waters], unless the Applicant demonstrates that:
2. The proposed activity or discharge is clearly in the public interest; and either. . . b. The existing ambient water quality within Outstanding Florida Waters will not be lowered as a result of the proposed activity or
discharge, except on a temporary basis during construction not to exceed thirty days; lowered water quality would occur only within a restricted mixing zone approved by the Department; and water quality criteria would not be violated outside the restricted mixing zone. [emphasis supplied]
The Hearing Officer concluded in Conclusion of Law 73 that any degradation of the waters of Florida Bay caused by the proposed dredge and fill activities in this case, no matter how "minimal" or "trivial", would violate the above- quoted provisions of Rule 62-4.242(2), Florida Administrative Code. I reject this legal conclusion and rule interpretation of the Hearing Officer as applied to the critical facts of record in this case. 14/ The Hearing Officer's interpretation of this rule seems to ignore the critical fact in this case that there is no competent substantial evidence of record that the proposed dredge and fill activity or discharge will take place "within an Outstanding Florida Water" within the purview of said Rule 62-242(2).
Sunset Acres' project engineer and expert witness Edward Swakon repeatedly testified at the DOAH hearing that no dredge or fill work would be required in the area of the current opening in the berm to Florida Bay, and that the berm could be left "the way it is". (T. 33-34, 38, 53-54) My review of the record failed to identify any competent substantial evidence that would conflict with or rebut this critical expert testimony. Consequently, the record reflects that all of the proposed dredge and fill activity in this case would be confined to the interior of the authorized closed canal system, which is presently not a surface waterbody of the state. Furthermore, as discussed above, the canal waters would become Class III waters (not Outstanding Florida Waters) in the event that the permit for the proposed project is issued.
Based on this uncontroverted expert testimony of Mr. Swakon, I conclude that the critical question presented under the facts of this case is whether the proposed dredge and fill activity will "significantly degrade" the waters of Florida Bay within the meaning of Rule 62-4.242(2), Florida Administrative Code. My review of the record fails to identify any competent substantial evidence that the proposed project will "significantly degrade" the waters of Florida Bay.
To the contrary, the expert testimony at the DOAH hearing of Dr. Earl Rich was that the proposed project could possibly have a "trivial negative effect" on the waters of Florida Bay, but that any potential violations of DO levels in these OFW waters "wouldn't be detectable" with the "most sophisticated of instrumentation." (T. 83, 90, 96) Dr. Ken Echternacht also gave corroborating expert testimony at the DOAH hearing that any degradation of the waters of Florida Bay from the proposed project would not be "measurable". 15/ (T.
151,155) I conclude that any possible negative effects of the proposed project on the DO levels of the waters of Florida Bay which are so slight as not to be detectable or measurable with sophisticated instrumentation are legally insufficient to support a conclusion of law that the proposed dredge and fill activities will "significantly degrade" the waters of Florida Bay under Rule 62- 4.242(2), Florida Administrative Code. 16/
Based on the above, Sunset Acres' Exceptions III and IV are granted.
Nevertheless, the Hearing Officer's erroneous Conclusion of Law 73 is deemed to be harmless error in view of the preceding ruling denying Sunset Acres' Exceptions II and VI.
Exceptions V and VIII
These two exceptions challenge the propriety of the Hearing Officer's Finding of Fact 63 related to the potential negative "cumulative impacts" of the proposed project due to "numerous other canal systems in the Upper Keys". The Hearing Officer found that, due to the existence of these other canal systems, the precedent set by granting the permit allowing the three notches and the permanent existence of the opening in the berm to Florida Bay would magnify the potential "negative environmental consequences of the proposed project".
Sunset Acres' exceptions assert, in essence, that Finding of Fact 63 of the Hearing Officer related to the existence in this case of adverse cumulative impacts is not supported by competent substantial evidence of record. The responses filed on behalf of the Department essentially concur with Sunset Acres' exceptions to Finding of Fact 63. The Department concludes in its response that the amended permit application should still be denied based on the clear evidence of persistent DO violations in the canal waters, even if the negative "cumulative impacts" findings of the Hearing Officer are rejected.
These two exceptions of Sunset Acres appear to be well-taken. A review of the record in this case does not reflect the existence of competent substantial evidence of record to support a factual finding of potential adverse cumulative impacts in this case. There is no evidence of record that there are other similar projects in the Upper Keys under construction or in the process of permit review, or that other similar projects "may be reasonably expected to be located" in the vicinity of Sunset Acres. 17/ See Section 373.414(8), Florida Statutes.
Accordingly, Exceptions V and VIII of Sunset Acres are granted. In view of the prior rulings denying Exceptions II and VI, however, the Hearing Officer's
erroneous Finding of Fact 63 as to adverse cumulative impacts of the proposed project is deemed to be harmless error.
Exception VII
This exception appears to relate to Conclusion of Law 74 wherein the Hearing Officer concluded that Sunset Acres not only failed to provide reasonable assurance that the proposed project is "clearly in the public interest", but also failed to demonstrate that the project is "not contrary to the public interest." 18/ See Section 373.414(1), Florida Statutes. Sunset Acres contends that the Hearing Officer erred by failing to determine which of the two public interest standards applied under the facts of this case. The Department's response to this exception concurs that the Hearing Officer failed to properly conclude which of the two public interest? standards is applicable here, but reasons that this failure is harmless error.
It is evident that the Hearing Officer did not reach a conclusion as to which of the public interest standards apply here. This omission on the part of the Hearing Officer is rendered moot, however, in view of the prior rulings in this Final Order concluding that that the proposed project will neither "significantly degrade" nor will be located "within an Outstanding Florida Water". Thus, the critical question left to be answered with respect to this issue is whether Sunset Acres has provided reasonable assurance that the proposed project "is not contrary to the public interest" under Section 373.414(1), Florida Statutes. I conclude that Sunset Acres has failed to provide that necessary reasonable assurance that the proposed project "is not contrary to the public interest".
The Hearing Officer's conclusion that all the Sunset Acres canal system waters will become Class Ill waters of the state if the proposed project is permitted and completed was adopted in the prior rulings denying Exceptions II and VI. The Hearing Officer's Findings of Fact 41-56 relating to the persistent substandard DO Levels in the three Sunset Acres finger canals are amply supported by the evidence of record. These unchallenged Findings of Fact of the Hearing Officer of continuing significant DO violations in the canal waters constitute a sufficient record basis for concluding that Sunset Acres has failed to provide reasonable assurance that the proposed project "is not contrary to the public interest".
In view of the above, Sunset Acres' Exception VII is granted. The Hearing Officer's failure to determine in Conclusion of Law 74 which of the two public interest standards apply in this case, however, is deemed to be harmless error for the reasons discussed above.
CONCLUSION
The findings and conclusions in the Recommended Order adopted herein that Sunset Acres' canal waters are in violation of Department standards for minimum dissolved oxygen levels for Class III waters compel denial of the permit for the proposed project. Prior administrative decisions of this agency and its predecessor have concluded that of "all the state's water quality parameters, dissolved oxygen is the most critical, dictating whether a body of water can serve as a viable habitat for aquatic life. Dissolved oxygen levels that do not meet the state standards are harmful to plant and animal life." The Conservancy. Inc. v. Collier Development Corporation, 16 F.A.L.R. 3870, 3893 (Fla. DEP 1994); Houle v. Department of Environmental Regulation, 10 F.A.L.R. 3671, 3676 (Fla.
DER 1987).
It is therefore ORDERED:
Sunset Acres' Request for Oral Argument on its Exceptions to Recommended Order is denied.
The Recommended Order of the Hearing Officer, as modified by the above rulings in this Final Order, is adopted and incorporated herein by reference.
Sunset Acres' application for a dredge and fill permit as described in its Amended Petition/Application submitted to the Department in March of 1996 and admitted into, evidence at the DOAH hearing as Joint Exhibit 1 is DENIED.
Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 3900 Commonwealth Boulevard, M.S. 35, Tallahassee, Florida 32399-3000; 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 6th day of September, 1996, in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
VIRGINIA B. WETHERELL
Secretary
Marjory Stoneman Douglas Building 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
FILING AND ACKNOWLEDGMENT FILED, ON THIS
DATE, Pursuant To s120.52 Florida Statutes, With The Designated Department Clerk. Receipt Of Which Is Hereby Acknowledged.
Deputy Clerk 09/06/96
ENDNOTES
1/ The former Department of Natural Resources and the former Department of Environmental Regulation were transferred by a type three transfer to a newly created Department of Environmental Protection effective July 1,1993. See Chapter 93-213, Laws of Florida, Sections 3 and 8, Laws of Florida. The term Department" will be used in this Final Order to refer to both the former Department of Environmental Regulation and the present Department of Environmental Protection.
2/ The Sunset Acres canal system was permitted by the former Department of Pollution Control (predecessor to the Department of Environmental Regulation) to be a land-locked system separated from Florida Bay by a perimeter berm. In 1974, the Board of Trustees of the Internal Improvement Trust Fund issued a permit to dredge an access channel waterward of the perimeter berm and to construct a boat lift platform to lift the boats over the berm to the access channel. The access channel was dug, but the boat lift was never constructed.
In 1979, Sunset Acres submitted an application to the Department to create an opening in that portion of the perimeter berm lying between the access channel and an interior shore parallel canal to provide a direct connection from its canals to Florida Bay. The 1979 application was subsequently denied following an administrative hearing. A break developed in the perimeter berm during a 1981 storm, which opened the Sunset Acres canal system to the waters of Florida Bay. This opening to Florida Bay remained for eight years, during which time it widened and deepened. In 1989, the U.S. Army Corps of Engineers repaired the break in the perimeter berm and reclosed the Sunset Acres canal system.
3/ Throughout the remainder of this Final Order the term "proposed project" will be used to refer to the project described in Sunset Acres' amended application submitted on March 25,1996, which was the subject of the Department's Draft Notice of Denial issued on April 9, 1996. This amended application was admitted into evidence at the DOAH formal hearing as "Joint Exhibit 1". The specifics of the proposed project are set forth on page three of the attached Recommended Order.
4/ Florida Bay is an OFW by virtue of being a part of the Special Waters of Florida Keys. See Rule 62-103.700(9)(i)13, Florida Administrative Code. As an OFW, Florida Bay is one of the designated water bodies of the state determined by the Department to be afforded "the highest protection" against water pollution. Rule 62-302.700(1), Florida Administrative Code.
5/ This critical evidentiary standard of "reasonable assurance" has been construed by case law to mean "a substantial likelihood that the project will be successfully implemented". Metro. Dade County v. Coscan, 609 So.2d 644, 648 (Fla. 1992).
6/ Class III surface waters are waters used for "recreation, propagation and maintenance of a healthy, well-balanced population of fish and wildlife". Rule 62-302.400(1), Florida Administrative Code.
7/ In Finding of Fact 40, the Hearing Officer concluded that "the Sunset Acres canal waters presently do not violate date standards with respect to copper and lead. This mixed determination of fact and law appears to be a correct legal conclusion based on competent substantial evidence of record and is approved in this Final Order.
8/ The Hearing Officer's critical factual findings in paragraph 52 of the Recommended Order of continuing DO violations in the Sunset Acres' finger canals are based on field testing done on behalf of Sunset Acres by Jack Bateman, which were admitted into evidence at the DOAH hearing as "Petitioner's Composite Exhibit 1". Jack Bateman testified at the DOAH Hearing on behalf of Sunset Acres and was accepted by the Hearing Officer as an expert in water quality issues related to the Florida Keys.
9/ These water quality test results of the Department were admitted into evidence at the DOAH Hearing as "Respondent's Exhibit 4".
10/ "Surface waters of the state" for the purpose of Department dredge and fill permitting jurisdiction include "excavated water bodies ... which connect directly or via an excavated water body or series of water bodies" to a bay or the Gulf of Mexico. Rule 62-312.030(2)(b), (c), Florida Administrative Code.
11/ The Hearing Officer correctly concluded in Conclusion of Law 69 that the waters of the Sunset Acres canal system are not currently part of the Outstanding Florida Waters of Florida Bay. See Rule 62- 302.700(9)(i)13c, excluding "artificial waterbodies", such as canals, from the definition of the Special Waters of the Florida Keys.
12/ There was evidence of record that Sunset Acres' proposal for backfilling (or shoaling) of the shore-parallel canal to -6.0 feet MLW would improve water quality in that canal. Sunset Acres failed to demonstrate, however, that the proposed backfilling of the shore-parallel canal would result in any net improvement of the persistent substandard DO levels in the three east-west finger canals proposed to be connected to the shore-parallel canal and ultimately to the waters of Florida Bay through the opening in the berm. Thus, I concur with the Hearing Officer's Conclusion of Law 75 that Sunset Acres "has not proposed ... any mitigative measures that likely would offset the adverse effects of the proposed project to such an extent as to justify the Department's issuance of a permit authorizing the proposed project."
13/ There is a passing reference by the Hearing Officer in Finding of Fact 60 to Sunset Acres' post- hearing application amendment. None of the 63 Findings of Fact of the Hearing Officer, however, address the sufficiency of the evidence presented at the hearing to support the propriety of the new proposals contained in this post-hearing application amendment.
14/ As noted in the Preface above, the reviewing agency is free to reject conclusions of law or interpretations of administrative rules in a recommended order with which it disagrees.
15/ The Department's expert witness George Baragona testified that he would neither "totally dispute" nor "totally agree with" Dr. Echternacht's testimony that the proposed project would have no measurable impact on the waters of Florida Bay. Mr. Baragona concluded that "I simply don't know not being a chemist." (T. 1 97) The Department's expert witness Constance Bersok testified as to her opinion that "any lowering of the ambient waters [of Florida Bay] in this particular case" has to be a measurable lowering or detectable lowering of the ambient. (T. 290)
16/ I am compelled to observe, however, that the cases of Caloosa Property Owners Assn. Inc. v. Dept. of Environmental Regulation, 462 So.2d 523 (Fla. 2nd DCA 1985); Pacetti v. Dept. of Environmental Regulation, 8 F.A.L.R. 4050 (DER 1986), cited in Sunset Acres' Exceptions to Recommended Order are inapposite and not controlling in this case. Neither of these two cases involved the question of whether waterbodies designated as Outstanding Florida Waters would be adversely impacted, and the application and interpretation of the antidegradation provisions of Rule 62A.242(2), Florida Administrative Code, was not an issue in either case. The question in the Caloosa Property Owners and Pacetti cases was whether a dredge and fill permit should still be issued in view of the "de minimis" doctrine where there is a minimal discharge of pollutants into a non-OFW. This is a decidedly different question from the one presented here of whether a discharge of waters having substandard DO levels
will "significantly degrade" the receiving waters of an OFW under said Rule 62- 4.242(2) when no degradation is measurable with
sophisticated instrumentation.
17/ The Hearing Officer found in Finding of Fact 62 that there are presently only four closed canal systems from North Key Largo to Key West. The nearest closed canal system is located approximately six miles from Sunset Acres, and the next closest system is located 45 miles away. There is no competent substantial evidence of record from which the Hearing Officer could reasonably infer that the owners of either of these closed canal systems have pending permit applications or "may be reasonably expected" to file applications to open up their canal systems to have direct boat access and flow of canal waters into Florida Bay.
18/ Florida statutory law imposes a heavy burden on a permit applicant of providing reasonable assurance that any proposed activity which "significantly degrades" an Outstanding Florida Water "will be clearly in the public interest." Section 373.414(1), Florida Statutes. As to all other waters of the State, this statute requires an applicant to provide reasonable assurance that the proposed activity is "not contrary to the public interest."
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing Final Order has been sent by United States Postal Service to:
William J. Roberts, Esquire Tom R. Moore, Esquire Roberts & Egan, P.A.
217 S Adams St
Tallahassee, Florida 32301
Ann Cole, Clerk and
Stuart M. Lerner, Hearing Officer Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550 and by hand delivery to:
Lynette L. Ciardulli, Esquire Douglas H. MacLaughlin, Esquire
Department of Environmental Protection 3900 Commonwealth Blvd., M.S. 35
Tallahassee, Florida 32399-3000
this 9th day of September, 1996
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
J. TERRELL WILLIAMS Assistant General Counsel
3900 Commonwealth Blvd., M.S. 35
Tallahassee, Florida 32399-3000 Telephone 904/488-9314
| Issue Date | Proceedings |
|---|---|
| Sep. 12, 1996 | Final Order filed. |
| Jul. 29, 1996 | Ltr. to V. Wetherell from SML enclosing Exhibits (w/the exception of Petitioner`s Exhibit 4) and transcripts which were inadvertently omitted from the Recommended Order 7/24/96 transmittal sent out. |
| Jul. 24, 1996 | Recommended Order sent out. CASE CLOSED. Hearing held 04/18-19/96. |
| Jul. 15, 1996 | Petitioner`s Composite Exhibit #2 & 3 filed. |
| Jun. 12, 1996 | Letter to Hearing Officer from L. Ciardulli Re: Enclosing disk containing Department`s proposed recommended Order and copies of rules cited in PRO; Disk filed. |
| Jun. 07, 1996 | Disk (Petitioner`s Proposed Recommended Order/tagged) filed. |
| Jun. 03, 1996 | Respondent Department of Environmental Protection`s Proposed Recommended Order filed. |
| Jun. 03, 1996 | Petitioner`s Proposed Recommended Order (for Hearing Officer signature) filed. |
| May 30, 1996 | Order sent out. (Proposed Recommended Order`s are Due by 6/3/96) |
| May 29, 1996 | (Respondent) Motion to Request Extension of Time to File Proposed Recommended Order filed. |
| May 10, 1996 | Transcripts (Volumes I, II, III, tagged) filed. |
| Apr. 24, 1996 | Petitioner`s Amendment to Amended Petition/Application filed. |
| Apr. 18, 1996 | CASE STATUS: Hearing Held. |
| Apr. 10, 1996 | Joint Pre-Hearing Stipulation; Notice of Amended Agency Action filed. |
| Mar. 25, 1996 | Petitioner`s Amended Petition/Application for Administrative Hearing on Substantially Modified Request for DEP Permit/Certification filed. |
| Dec. 26, 1995 | Order Requiring Prehearing Stipulation sent out. |
| Dec. 26, 1995 | Notice of Hearing sent out. (hearing set for April 18 & 19, 1996; 8:45am; Miami) |
| Dec. 22, 1995 | Motion to Schedule Administrative Hearing filed. |
| Dec. 20, 1995 | Motion to Reschedule the Administrative Hearing (Respondent) filed. |
| Oct. 17, 1995 | Order sent out. (Case to remain in abeyance; Parties to file status report by 1/22/96) |
| Oct. 17, 1995 | Petitioner`s Status Report filed. |
| Oct. 17, 1995 | Petitioner`s Status Report filed. |
| Jul. 21, 1995 | Order sent out. (Case to Remain in Abeyance; Parties to file status report by 10/16/95) |
| Jul. 20, 1995 | Petitioner`s Status Report filed. |
| Mar. 27, 1995 | Order of Abeyance sent out. (Parties to file status report by 7/12/95) |
| Mar. 20, 1995 | Petitioner`s Status Report filed. |
| Feb. 08, 1995 | Order sent out. (Parties to file status report by 3/16/95) |
| Feb. 06, 1995 | Petitioner`s Status Report filed. |
| Jan. 03, 1995 | Order sent out. (Parties to file status report by 2/1/95) |
| Dec. 30, 1994 | Petitioner`s Status Report filed. |
| Oct. 25, 1994 | Order sent out. (Case to remain in Abeyance; Parties to file status report by 12/30/94) |
| Oct. 24, 1994 | Petitioner`s status report filed. |
| Aug. 22, 1994 | Order sent out. (Parties to file status report by 10/24/94) |
| Aug. 18, 1994 | Joint Status Report filed. |
| Jun. 27, 1994 | Order sent out. (Parties to file status report by 8/12/94) |
| Jun. 24, 1994 | (Respondent) Status Report and Motion to Continue in Abeyance filed. |
| Jun. 07, 1994 | Petitioner`s Status Report filed. |
| May 20, 1994 | Order sent out. (Hearing set for 7/6-8/94; 9:30am; Miami) |
| May 18, 1994 | Respondent`s Status Report filed. |
| May 16, 1994 | Petitioner`s Status Report filed. |
| Feb. 10, 1994 | Order sent out. (hearing rescheduled for 7/6-8/94; 9:30am; Miami) |
| Feb. 04, 1994 | Parties' Joint Status Report filed. |
| Dec. 03, 1993 | Order sent out (Re: Status Report to be filed by 2/4/94) |
| Nov. 22, 1993 | Parties' Joint Status Report filed. |
| Sep. 23, 1993 | Order sent out. (hearing date to be rescheduled at a later date; parties to file status report by 11/22/93) |
| Sep. 22, 1993 | Respondent`s Motion for Continuance filed. |
| Sep. 22, 1993 | Respondent`s Motion for Continuance filed. |
| Sep. 17, 1993 | Department of Environmental Protection`s Prehearing Statement filed. |
| Sep. 13, 1993 | Petitioner`s Separate Prehearing Statement filed. |
| May 24, 1993 | Order Requiring Prehearing Stipulation sent out. |
| May 24, 1993 | Second Notice of Hearing sent out. (hearing set for 10/6-8/93; 9:00am; Miami) |
| May 05, 1993 | DER'S Status Report filed. |
| Mar. 04, 1993 | Order sent out. (parties to file status report by 5-1-93) |
| Mar. 02, 1993 | Parties' Status Report filed. |
| Dec. 01, 1992 | Order sent out. (Status report due 3/1/93) |
| Nov. 30, 1992 | Parties Status Report filed. |
| Aug. 28, 1992 | Order sent out. (Status report due 11/30/92) |
| Aug. 27, 1992 | Parties' Status Report filed. |
| Aug. 04, 1992 | Order sent out. (hearing date to be rescheduled at a later date; parties to file status report by 8-31-92) |
| Jul. 30, 1992 | Joint Motion for Continuance filed. |
| Jul. 20, 1992 | Department of Environmental Regulation`s First Request for Production of Documents to Petitioner, Sunset Acres; Notice of Certificate of Service of Interrogatories filed. |
| May 05, 1992 | Order sent out. (hearing rescheduled for August 20 and 21, 1992; 9:00am; Miami) |
| Apr. 17, 1992 | Petitioner`s Certificate of Serving Interrogatories to Respondent filed. |
| Mar. 18, 1992 | Notice of Appearance of Counsel for Department of Environmental Regulation filed. |
| Feb. 05, 1992 | Notice of Hearing sent out. (hearing set for May 28-29, 1992; 9:00am; Miami). |
| Jan. 24, 1992 | (Petitioner) Response to Initial Order filed. |
| Dec. 27, 1991 | Order sent out. (RE: Motion for Extension of time, granted; response due Jan. 24, 1992). |
| Dec. 26, 1991 | (Petitioner) Response to Initial Order filed. |
| Dec. 18, 1991 | Notice of Permit Denial filed. |
| Dec. 18, 1991 | Initial Order issued. |
| Dec. 11, 1991 | Request for Assignment of Hearing Officer and Notice of Preservation of Record; Petition for Administrative Hearing filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 06, 1996 | Agency Final Order | |
| Jul. 24, 1996 | Recommended Order | Reasonable assurances not given that proposed project with not degrade Florida Bay and that project not contrary to public interest; project thus not permittable |
