STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SARAH BERGER, )

)

Petitioner, )

)

vs. ) CASE NO. 93-264

)

WILLIAM KLINE and ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondents, )

and )

)

CITRUS COUNTY, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, P. Michael Ruff, in Inverness, Florida.

APPEARANCES

For Petitioner: Mrs. Sarah Berger, pro se

Post Office Box 83 Inglis, Florida 34449

For Respondent: William A. Kline, Jr., pro se (Kline) 398 South Inglis Avenue

Inglis, Florida 34449

For Respondent: Francine M. Ffolkes, Esquire

(DER) Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

For Intervenor: Richard W. Wesch, Esquire

Assistant County Attorney

107 North Park Avenue, Suite 8 Inverness, Florida 34450

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern whether the applicant for the dredge and fill permit at issue has provided reasonable assurances that the project involved will comport with state water quality standards and public interest standards for purposes of Section 403.918(1)&(2), Florida Statutes.

Specifically, it must be demonstrated that the applicant has provided reasonable

assurances that the project is clearly in the public interest for purposes of Section 403.918(2), Florida Statutes, and related rules; whether Citrus County has standing to challenge the project; and whether the Department is required or authorized to enforce the provisions of the Citrus County Comprehensive Plan.

PRELIMINARY STATEMENT

This cause arose upon the filing of an application for a "dredge and fill" permit by the above-named Respondent/applicant, William A. Kline, Jr. (Kline). The proposed project for which the permit is sought involves the construction of a dock and covered slip to dock or house a boat. The Respondent, Department of Environmental Regulation, now the Department of Environmental Protection, (Department of DEP), noticed its intent to grant the proposed permit and required the notice of intended agency action to be published, as provided by law. In due course and within the required 21 days from issuance of the notice of intended agency action, the above-named Petitioner filed her petition in opposition to the proposed grant of the permit.

The cause then came before the undersigned Hearing Officer for conduct of formal proceedings. The formal hearing originally was scheduled for and commenced on April 12, 1993. Citrus County filed a petition to intervene on or about April 6, 1993. It developed at the outset of the hearing, after the Hearing Officer allowed Citrus County and all parties to be heard, that Citrus County had not been provided the notice contemplated by Section 403.916(2), Florida Statutes. Accordingly, the Hearing Officer bifurcated the hearing and ruled that Citrus County should be given an opportunity, after having received the notice of the proposed agency action, to file a more detailed petition, conduct discovery, and otherwise prepare to present evidence and argument at the bifurcated portion of the proceeding.

On June 21, 1993, the Department served a renewed motion to dismiss and motion in limine directed against Citrus County's petition. On July 1, 1993, the Hearing Officer considered the Motions and heard argument of the parties. The motion to dismiss was granted with leave accorded Citrus County to file an amended petition by July 7, 1993. That amended petition was served on July 7, 1993, more completely and succinctly stating the basis for the County's standing to participate as a party in this proceeding. The Department's motion in limine was granted so as to exclude irrelevant evidence directed to the question of the proposed project's compliance with the County's comprehensive plan.

Respondent/applicant Kline presented the testimony of Fred Clacher, Rita Surber, Jim Townsend, Rodney MacCrae, Carolyn A. Rischer, Bill Hart, and also testified on his own behalf. The Respondent/applicant moved 18 exhibits into evidence, 16 of which were accepted. One exhibit was rejected, and one was approved for late filing, although it was not ultimately submitted.

The Department presented the testimony of Rose Poynor as an expert witness, and moved two exhibits into evidence, which were accepted.

The Petitioner presented the testimony of Janet Failles, Charles Miko, Orval Berger, and Bessy Campbell. The Petitioner moved 12 exhibits into evidence, 6 of which were accepted, and 6 of which were rejected. The Petitioner attempted to submit more exhibits through the medium of a letter to the Hearing Officer dated August 5, 1993, post hearing. The Department filed a motion to strike that attempt to introduce new evidence, as well as previously- rejected exhibits, after the close of the formal proceedings in the evidentiary record. That motion is granted hereinbelow. A motion by the Department for a

brief extension of time for submission of proposed recommended order is also granted and the motion in opposition thereto filed by the Petitioner is denied.

The Intervenor, Citrus County, presented the testimony of Gary Maidhoff, Irene Elizabeth Beeler as an expert witness, and Cameron Shaw as an expert witness. The Intervenor moved two exhibits into evidence, one of which was accepted, and one of which was rejected.

Upon conclusion of the proceedings, the parties availed themselves of the right to submit proposed findings of fact and conclusions of law. Proposed findings of fact are addressed in this Recommended Order and again specifically ruled upon in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. Kline filed an application for grant of a permit to construct a private boat dock with a roof, designed to cover a boat, in the Withlacoochee River.

   The Department has permitting jurisdiction, pursuant to Chapter 403, Florida Statutes, and related rules, inasmuch as the Withlacoochee River is a natural water body designed as Class III waters of the state, as well as an Outstanding Florida Water. The landward extent of the Department's jurisdiction is the wetland line depicted in Kline's exhibits 1 and 2 in evidence and in the testimony of Rose Poynor. The proposed installation consists of a private boat dock with boathouse or cover measuring 22 feet by 43 feet mounted on 12-inch diameter pilings. The boat cover roof would be approximately 14 feet above the surface of the Withlacoochee River at mean high tide. Portions of a presently- existing dock will be removed, leaving behind a walkway and terminal platform 6 feet wide and extending 6.5 feet from the wetland jurisdictional line out to the boat cover facility.

   
   

2. The dock presently extends 6.5 feet from the wetlands jurisdictional line riverward. The existing dock shades the shoreline, including a non- jurisdictional area on the top of the bank. Kline proposes to remove a portion of this existing dock consisting of an area 10.75 feet by 12 feet on one side of the line and approximately 10.75 feet by 5 feet on the other side. This will include removing portions of the existing dock landward of the jurisdictional wetland line.

   
   

3. The shoreline area that will be exposed upon removal of portions of the existing dock will be replanted with native plant species. The entire length of Kline's shoreline along the top of the existing bank will be cleared of nuisance species and planted with the required number of native plant species delineated in specific condition #18 of the intent to issue. More plants will be planted as necessary in order to maintain a 90 percent survival density of the required plants over a five-year period as specified in specific condition #21.

   
   

4. Kline will also grant a perpetual conservation easement to the Department for the entire length of the shoreline extending a minimum of 4 feet waterward from the top of the bank. The conservation easement will insure protection of the planted shoreline and prevent any opportunity of shoreline hardening through construction of a seawall or other structures.

   
   

5. The project will be constructed using best management practices for erosion control, including having the pilings driven from a barge over a period of three to five days so as to minimize the generation of turbidity. A floating turbidity curtain will also be used so as to surround the entire project area to prevent migration of turbidity off the site and which will not interfere with

   navigation. The total construction time is estimated to be three weeks. During construction, specific actions will be taken to avoid any impacts to manatees traveling the Withlacoochee River near the property. A turbidity curtain will not block manatee entry or exit from essential habitat and will be made of material in which manatees cannot become entangled or injured. Boats in the project area will operate at "no wake/idle speeds" at all times. Upon the sighting of a manatee, all construction activities will cease until the manatee has left the project area. Logs and details of manatee sightings will be maintained and reported to the Department's Marine Mammal Section. During construction, temporary signs will be installed and maintained; and after completion of the project, permanent signs and a permanent informational display will be located in areas specified by the Department's Marine Mammal Section.

   
   

6. The specific actions to be taken to avoid impacts to Manatees during construction were developed by the Department's Marine Mammal Section and are imposed on the proposed project in specific condition #13 of the intent to issue as a condition upon a grant of the permit, and Kline has agreed to these conditions.

   
   

7. Kline's property is located on the Withlacoochee River in Inglis, Levy County, Florida. The proposed project extends waterward of Kline's shoreline and the waterward portion of the project is located within the boundaries of Citrus County.

   
   

8. Kline's property is approximately 7 to 8 miles from Yankeetown, which is downstream on the Withlacoochee River from Inglis. Yankeetown is located on the lower reaches of the Withlacoochee River near the point where it enters the Gulf of Mexico. The U.S. 19 Highway bridge is 900 to 1,000 feet upstream of the Kline property.

   
   

9. Kline's shoreline is relatively steep with areas of exposed limestone. Vegetation along that shore consists of red maple, laurel oak, and other identifiable wetland species. Water depth drops off relatively quickly varying from 6 to 10 feet at the edge of the existing dock. The river is approximately

   121.5 feet wide at the project site. The project's construction will extend approximately 21.7 percent of the width of the river at the project site after completion. On the opposite shore from the Kline property and project site, there is also a boat dock with a small boat basin which was dredged landward into the river bank at some time in the past. On the opposite shoreline, a fallen log projects into the river which does impede navigation to some extent on that side of the river but it is an easily removable obstruction. The log presently remains just below the water surface at high tide.

   
   

10. The Cross Florida Barge Canal and spillway are located approximately 2 miles upstream from the Kline property and eastward from the U.S. 19 bridge. An island exists in the river around a bend downstream from the Kline property.

    The island prevents the passage of boats larger than 16-foot beam around the island and upriver toward the Kline property.

    
    

11. The Withlacoochee River is a slow-moving, tannic-acid tinged river and historically was extensively shaded by a tree canopy. In the last half century or so, many of the trees have been removed to accommodate shoreline development which is characterized primarily by vacation homes, weekend retreats, and retirement homes with attendant docks, boathouses, seawalls, and similar private river and boat access facilities serving residential owners. The docks and boathouses existing in the river occur on both sides of the river from the Gulf of Mexico up at least as far as the U.S. 19 bridge. The historical character of

    the river has thus changed in the last several decades such that extensive numbers of docks, seawalls, boathouses and residences presently characterize the river margin.

    
    

    Water Quality Impacts

    
    

12. The water quality impacts of this project will be minimal. The dock and boathouse installation will be placed upon pilings inserted into the river bottom. Installation of the pilings during construction will cause some temporary turbidity. The temporary turbidity that may be occasioned as a result of installation of the pilings will last only a few days at most, and a turbidity curtain will be used to control the turbidity, to prevent it from disbursing over a large area of the river. Turbidity curtains are a well- recognized, proven method for minimizing short-term water pollution violations due to turbidity occasioned by the setting of pilings for such projects. Requiring the applicant to re-vegetate the shoreline and maintain the natural vegetation will enhance natural shoreline pollution up-take processes, as well as erosion prevention. Water quality will be maintained, therefore, and possibly improve somewhat at the site after the re-vegetation of the shoreline and littoral margin. No other water quality parameters were shown to be potentially violated by the installation proposed. So long as no boat maintenance operations which involve the potential spillage of oils and greases, solvents, or bottom paint into the water are practiced, no violations were shown to potentially occur. The permit, if granted, should be restricted against such activities.

    
    

    Public Interest Standards and Considerations

    
    

13. The issues and inquiry concerning the public interest standards as to this project related to the question of impacts on recreational uses of the river and navigational uses, as well as the issue of any impacts on manatees. The Department's biology expert, as well as manatee experts presented by the Intervenor, established that the Withlacoochee River is frequented by manatees, but is not a warm-water habitat for manatees. Manatees use the Withlacoochee River during the spring and summer months, but rarely during the winter because it is not a warm-water habitat. The river has been designated as an essential habit for manatees, however. This means that the area is used by them as a food source and as a breeding and rearing area. Although manatees have been seen throughout the length of the river and the immediate vicinity of the project site, the animals mostly use the estuarine mouth or lower reaches of the river. The project on the Kline property is approximately 8 miles upstream from the mouth of the river.

    
    

14. There is no question that boats pose definite hazards to manatees through striking manatees with boats and propellers. Boats have been the cause of manatee deaths in Citrus County in the past. Manatees are an endangered species. The Withlacoochee River currently has speed zone regulations involving the requirement of boat operation with no wake, and Citrus County imposes certain dock design criteria on residents seeking to construct new boat docks. The Intervenor's manatee experts participated in the development of these dock design criteria and agree that general adherence to these criteria minimizes potential impacts on manatees. The expert witnesses produced by the Intervenor were mainly concerned with projects of this type causing possible impacts on manatee travel patterns if the dock projects too far from the shore, as well as potential loss of food sources from shading of the water bottom and the question of attendant boats adhering to speed zone regulations.

15. The evidence establishes that the proposed dock will not exceed in a significant way the dock design criteria which the manatee experts agree would minimize any potential impacts on the animals. The experts testifying for the Intervenor had never visited the proposed project site and are unable to do more than make general observations and conclusions regarding any potential adverse impacts to manatees that the proposed project might have. One of the Intervenor's witnesses agreed, however, that the removal of portions of the existing dock structure would help revitalize aquatic vegetation to increase sunlight penetration which would benefit shoreline vegetation and the manatee habitat. The proposed project was shown not to affect manatee travel patterns and it will not have adverse shading impacts on aquatic vegetation due to the design of the facility, which will allow maximum sunlight penetration of the water column. Appropriate speed zones will be maintained during and after construction with the aid of signage warning Kline and the boating public of the need to adhere to "manatee friendly" boat operation practices.

    
    

16. The testimony of both Kline and the Petitioner's witnesses establishes that both residents along the river and visitors frequently boat on the Withlacoochee River and there is a significant amount of boat traffic. Certain geographical restrictions such as river width, already existing dock and boathouse structures, the U.S. 19 Highway bridge, and the island between the Kline's property and the mouth of the river at Yankeetown act to limit the size of boats that can traverse this section of the river, as well as their speed. The witnesses agreed that two 16-foot beam boats could safely pass each other in front of the Kline dock even after completion of the project.

    
    

17. The proposed project will be visibly marked with reflectors around its entire parameter with a minimum of one reflector on each piling as required by specific condition #15 in the intent to issue the proposed permit. Testimony from licensed boat captains presented by both the Petitioner and Kline establishes that reflectors are a normal requirement and are adequate for structures of this type and size. Kline presented evidence from a longtime native of Inglis, Bill Hart, that a structure with similar dimensions to the proposed project is located in the river at a point where the river is only 95 feet wide, significantly narrower than the width at the project site and yet does not obstruct navigation. That structure also is marked with reflectors and was shown not to pose a hazard to navigation.

    
    

18. Witnesses adduced by Petitioner expressed concern that during high tide, the Kline's boat would be moored outside the boat cover and further decrease the river width available for navigation. The evidence showed, however, that Kline's boat would only be moored at the designated mooring location as required by specific condition #14 of the intent to issue. If necessary, Kline will be required to move the boat and anchor it down the river in an area of sufficient width if it should prove that his boat cannot be accommodated under the boat cover during some high tide conditions.

    
    

19. Petitioner's witnesses also expressed concern that boats could not turn around in front of the Kline property when the installation is completed. The evidence showed, however, that boats can travel downstream and turn at the island or travel upstream to the U.S. 19 bridge. The U.S. 19 bridge pilings are approximately 20 feet apart which allows easy boat passage between them. The presence of Kline's boat will not represent any increase in boating traffic on the river. The previous owners of the same property used an existing dock to moor their boat.

20. The evidence establishes that the proposed project will not cause a serious impediment to navigation more than is already the case and will not constitute a navigational hazard.

    
    

21. The Petitioner's witnesses also expressed fears concerning reduction in the aesthetic quality of the view of the river and its banks. The river still enjoys some portion of tree canopy but is now largely characterized by man-made structures along both banks. Most residents in the vicinity of the

    Kline property already have docks, seawalls and/or boathouses. The installation of the proposed dock and boathouse or cover will not in any significant degree further impair the aesthetic quality of the view of the river and its banks from its present character.

    
    

    Cumulative Impacts

    
    

22. Testimony from the Intervenor's expert witnesses showed concern regarding cumulative impacts of the proposed project on manatees and the "precedent" of granting Kline a permit. The Intervenor's witness feared that many people would apply for more boat docks on the Withlacoochee River and that Kline's project would set a bad precedent, if granted, as to cumulative impact. No evidence was presented to substantiate these concerns, however, and there was no showing that more such permit applications are pending before the relevant regulatory agency. The Department's expert witness established that no cumulative impacts could be expected from this project with regard to water quality, as well as the various public interest standards embodied in Section 403.918(2),(1-7), Florida Statutes. The Department itself has not received any other applications for similar projects in the vicinity.

    
    

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1991).

    
    

24. The Department's motion to strike the Petitioner's attempt to introduce new evidence and previously-rejected exhibits, after the close of the formal hearing is granted, by authority of Florida Department of Transportation

    v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). The Department's motion for extension of time to file the Proposed Recommended Order is supported by good cause and is granted.

    
    

25. The standards for consideration of projects such as this are contained in Sections 403.918 and 403.919, Florida Statutes. The criteria and standards for granting or denying permits are specifically set forth in duly-promulgated rules applicable to dredge and fill permits which is the applicable criteria to be considered when granting or denying permits. See, Taylor v. Cedar Key Water and Sewerage District, 590 So.2d 481 (Fla. 1st DCA 1991); and Council of the Lower Keys v. Charley Toppino & Sons, Inc., 429 So.2d 67 (Fla. 3d DCA 1983).

    
    

26. In a Section 120.57 proceeding involving a dredge and fill permit application such as the instant one, the applicant has the burden of making a preliminary prima facie showing of entitlement to the requested permit. The extent of this showing depends to an extent on the nature of the objections raised by the petitioners in their petitions requesting a hearing. Once the permit applicant has made the preliminary prima facie showing, the opponents of the permit have the burden of going forward with evidence to prove the allegations of their petitions by contrary evidence of equivalent quality. The

    ultimate burden to establish reasonable assurances of compliance with relevant standards by a preponderance of the evidence and, therefore, entitlement to the requested permit is ultimately on the permit applicant. See, Florida Department of Transportation v. J.W.C. Co., Inc., 396 S.2d 778 (Fla. 1st DCA 1981).

    
    

27. The standard for the applicant's burden of proof is one of "reasonable assurances", not absolute guarantees that applicable water quality standards and public interest standards will not be violated. J.W.C., supra. In assessing the risk posed to natural resources by a proposed project, the various state regulatory agencies are not required to assume a "worst case scenario" unless such is reasonably foreseeable. Rudloe v. Gulf Speciment Co., Inc. v. Dickerson Bayshore, Inc. and Department of Environmental Regulation, 10 F.A.L.R. 3426 (Final Order entered 1988).

    
    

28. In the context of potential for harm to state natural resources, Florida courts have allowed state agencies flexibility in interpreting "reasonable assurances" and in applying individual permit standards based upon the totality of the circumstances. Booker Creek Preservation, Inc. v. Mobil Chemical Company, 481 So.2d 10 (Fla. 1st DCA 1985). Reasonableness of required assurances depends on facts particular to each case such as the physical, chemical and biological characteristics of the project site. Opponents to the application cannot carry their burden of proof by presenting contrary evidence in the form of mere speculation concerning what might occur. Chipola Basin Protective Group, Inc. v. Florida Chapter Sierra Club, 11 F.A.L.R. 467, 480-481 (Final Order 1988). The mere presentation of evidence referring only to generic concerns regarding impacts of docks in general, but not as applied to specific scientific information concerning the characteristics of the site at issue, is not evidence of equivalent quality such as to overcome the applicant's initial showing of entitlement. See, Hoffert v. St. Joe Paper Company, 12 F.A.L.R. 4972, 4987 (Final Order entered 1990).

    
    

29. A Section 120.57 hearing is a de novo proceeding intended to formulate final agency action and not to review action taken previously. McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). The Hearing Officer thus must accept evidence of circumstances as they exist at the time of hearing and consider relevant evidence of current circumstances external to the application. In fact, neither an applicant nor the agency is precluded from presenting evidence at hearing not previously submitted with either the application or the notice of agency action. See, DeCarion v. Department of Environmental Regulation, 445 So. 2d 619 (Fla. 1st DCA 1984).

    
    

30. Section 403.918(1), Florida Statutes, provides:

    
    

    1. A permit may not be issued under ss. 403.91-403.929 unless the applicant provides the department with reasonable assurances that water quality standards will not be violated. The department, by rule, shall establish water quality criteria for wetlands within its jurisdiction, which criteria give appropriate recognition to the water quality of such wetlands in their natural state.

       
       

       With respect to the potential for violations of turbidity standards as a result of construction, Kline has given reasonable assurances that if the conditions found above are followed and the project is constructed as described in the evidence and found above, the project will not violate the turbidity standard.

       Public Interest Balancing

       
       

31. As a preliminary matter, Section 403.918(2), Florida Statutes, provides that an applicant for a project which is in or significantly degrades an outstanding Florida water must demonstrate that the project will be clearly in the public interest. The proposed project is on the Withlacoochee River which is designated as an outstanding Florida water. Therefore, the applicant must demonstrate that the project will be clearly in the public interest by consideration and balancing of the seven statutory criteria appearing at Section 403.918(2)(a)(1-7), Florida Statutes. Those provisions provide as follows:

    
    

    In determining whether a project is not contrary to the public interest, or is clearly in the public interest, the department shall consider and balance the following criteria:

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

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

       or their habitats.

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

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

    5. Whether the project will be of a temporary or permanent nature;

    6. Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provision

       of s. 267.061; and

    7. The current condition and relative value of functions being performed by areas

    affected by the proposed activity.

    
    

32. With regard to criterion 2, conservation of fish and wildlife, including endangered or threatened species, or their habitats, the evidence establishes that the proposed project will not adversely affect manatees so as not to be clearly in the public interest. On the contrary, the evidence establishes that the overall design and construction adheres to criteria recognized and accepted by experts for the purpose of minimizing any potential impacts on manatees.

    
    

33. The other pertinent criterion is navigation. Criteria 1, 4 and 7 are pertinent only in relation to the navigation question. The Petitioner contends that the proposed project would not be clearly in the public interest because it adversely affects navigation, because the dock extends too far into the river. The Petitioner contends that the proposed project adversely affects the public health, safety or welfare and recreational values in the vicinity of the project.

34. It has been established that a mere inconvenience, if one exists, does not constitute the type of navigational hazard or adverse impact on navigation contemplated by the above-cited section. See, West, et al. v. Ratkovic and Florida Department of Environmental Regulation, 12 F.A.L.R. 3377, 3386 (Final Order entered 1990); Burnt Store Isles Association, Inc. v. Persico and Florida Department of Environmental Regulation, 13 F.A.L.R. 314, 324 (Final Order entered 1990).

    
    

35. Some inconvenience may arise because of the proposed project, causing boaters, canoers or tubers to have to be more cautious due to a new structure in the river. However, the proposed project will not cause an unreasonable interference with navigation to such an extent as not to be clearly in the public interest.

    
    

36. Aesthetic considerations themselves do not constitute a separate criterion under the public interest test that must be weighed and balanced in every case. Aesthetic qualities are only properly considered where the facts of a particular case establish that they are inherently associated and intertwined with one of the enumerated public interest criteria, such as recreational values in the vicinity of the project. In that context, aesthetic quality should be considered and balanced as part of the overall application of the public interest test. Sangillo v. Hays and Florida Department of Environmental Regulation, 13 F.A.L.R. 2933, 2934 (Final Order entered 1991).

    
    

37. Testimony adduced at hearing by Petitioner described the aesthetic quality of viewing the river and its banks while boating on it. Specifically, the testimony suggested that the proposed project did not conform with already- existing structures and, therefore, would constitute an "eye sore" and "change the nature of the terrain." This conflicts with testimony from other witnesses of the Petitioner who agreed that the historical character of the river had not changed and that docks, seawalls and boathouses presently characterize the river and its banks in the vicinity of the Kline property. The evidence does not support a finding that the proposed project will impose a detrimental effect on recreational values in the vicinity of the Kline property by impeding the aesthetic qualities of the view of the river and its banks.

    
    

38. The preponderance of evidence demonstrates that the proposed project, including removal of the existing dock, construction of a boat cover on pilings, visibly marking the pilings with reflectors, shoreline plannings, and the granting of the conservation easement will not result in violations of applicable water quality standards and that the project is clearly in the public interest.

    
    

    Cumulative Impact

    
    

39. The evidence adduced at hearing does not establish that other similar structures are contemplated or are the subject matter of other permit applications for this area in the future. Thus, no adverse cumulative impacts are expected on water quality or on the public interest criteria.

    
    

    Standing of Citrus County

    
    

40. A party to be entitled to appear in a Section 120.57, Florida Statutes, proceeding must show that he has a substantial interest in the outcome of the proceeding. Friends of the Everglades, Inc. v. Board of Trustees of the Internal Improvement Trust Fund, 595 So.2d 186 (Fla. 1st DCA 1992); Agrico Chemical Co. v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d

    DCA 1981). In order to have a substantial interest, a person must show (1) that he will suffer injury in fact which is of sufficient immediacy to entitle him to a hearing, and (2) that his substantial injury is of the type and nature which the proceeding is designed to protect. Agrico, 406 So.2d at 482. Under Section 120.52, Florida Statutes, the definition of "person" includes units of government. Therefore, a county is authorized to initiate administrative proceedings "if its substantial interests are affected by agency action." Hamilton County and City of Jasper v. TSI Southeast, Inc. and Department of Environmental Regulation, 12 F.A.L.R. 3774 (Final Order entered 1990), affirmed 587 So.2d 1378 (Fla. 1st DCA 1991).

    
    

41. Under the first prong of the Agrico test, a county must demonstrate that it will suffer a "substantial injury" to its interest. The county's interest must exceed the general interest of its citizens. Hamilton County, 12

    F.A.L.R. at 3781; see, also, City of Panama City v. Board of Trustees of the Internal Improvement Trust Fund, 418 So.2d 1132 (Fla. 1st DCA 1982). For example, a county may maintain an action if any of its proprietary interests will be substantially affected. See, Hamilton County v. Department of Environmental Regulation, 587 So.2d 1378 (Fla. 1st DCA 1991)(possible impact of air emissions on county property); Hamilton County and City of Jasper v. TSI Southeast, Inc. and Department of Environmental Regulation, 12 F.A.L.R. 3774 (Final Order entered 1990)(various properties owned and maintained by the County which are in close proximity to the proposed project).

    
    

42. Under the second prong of the Agrico test, a county must demonstrate that its substantial injury is of the type and nature that a Chapter 403, Florida Statutes, permitting proceeding is designed to protect. Florida cases clearly establish that the consistency of a proposed project with local land use regulations is outside the scope of a Chapter 403, Florida Statutes, permitting proceeding "zone of interest". Taylor v. Cedar Key Special Water and Sewerage District, 590 So.2d 481, 482 (Fla. 1st DCA 1991); Council of the Lower Keys v. Charley Toppino & Sons, Inc., 429 So.2d 67 (Fla. 3d DCA 1983).

    
    

43. The Intervenor served its "Amended Petition to Establish Standing as a Party or in the Alternative its Amended Petition to Intervene" on July 7, 1993. The amended petition contained many allegations directed at satisfying the

    120.57 standing requirements of showing substantial interest in the outcome of the proceeding. Those allegations did not satisfy the standing requirements specified in the above-discussed case law. Instead, the allegations focused on the Intervenor's alleged right to protect the general interests of its citizens. The Intervenor's alleged interests did not exceed the general interests of its citizens. Further, the Intervenor failed to carry its burden of proving the standing allegations by adducing evidence at hearing. The Intervenor's witnesses did not present any evidence to substantiate the allegations in the amended petition regarding standing.

    
    

44. The Intervenor may have standing to participate as an Intervenor in this proceeding under the provisions of Chapter 403.412(5), Florida Statutes. That provision provides that a political subdivision of the state shall have standing to intervene as a party on the filing of a verified pleading asserting that the activity to be permitted has or will have the effect of impairing, polluting, or otherwise injuring the air, water or other natural resources of the state. Although the Intervenor did not specify that its action was brought pursuant to this section, the amended petition alleges that the proposed activity should be denied under Section 403.918, Florida Statutes, as not being "clearly in the public interest". See, West Volusia Conservancy, Inc. v. Bayou Arbors, Inc., 9 F.A.L.R. 5824, 5854 (Final Order entered 1987). However, as an

    Intervenor, the County is limited by the issues raised in the pleadings of the original petitioner, Sarah Berger. To that end, the Intervenor did present evidence in support of the Petitioner's position and was allowed to cross- examine the witnesses of all other parties, file a proposed recommended order, and otherwise participate as a party in these proceedings.

    
    

45. The preponderant evidence establishes that reasonable assurances have been given that the water quality and public interest standards will be met by the project as proposed, including the showing that it is clearly in the public interest, given the conditions to be imposed upon the project and the habitat and wetland enhancement a grant of the application under these conditions will require. Consequently, it is concluded that the permit should be granted.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is

RECOMMENDED that a Final Order be entered by the Department of Environmental Protection directing that the Respondent/applicant, William Kline's application for the above-referenced dock terminal platform and boat cover be granted under the conditions found hereinabove and contained in the intent to issue.

DONE AND ENTERED this 29th day of November, 1993, in Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-264

Petitioner's Proposed Findings of Fact

The Petitioner does not state separate proposed findings of fact. Any proposed factual findings are inextricably entangled with extensive argument on the quantity and quality of testimony and other evidence and attempts to argue the Petitioner's position from the standpoint of documents referenced in the proposed findings of fact without an indication whether those documents are admitted into evidence or not. The Recommended Order can only be based upon testimony and evidence actually admitted and subject to cross-examination at hearing. The relevant and material issues raised in this case are delineated in the Recommended Order and have been fairly addressed and ruled upon and to the extent that the Petitioner's proposed findings of fact are in agreement with the

findings of fact enunciated by the Hearing Officer, they are accepted. To the extent that they are not they are subordinate thereto and not supported by preponderant evidence and are rejected.

Citrus County (Intervenor) Proposed Findings of Fact

quality, and credibility of testimony and evidence adduced at hearing is the basis for findings of fact and conclusions of law adjudicating this proceeding.

12. Rejected, as not in accord with the preponderant weight of the evidence and for the reason that these are de novo proceedings and the quantity, quality, and credibility of testimony and evidence adduced at hearing is the basis for findings of fact and conclusions of law adjudicating this proceeding.

13-14. Rejected, as immaterial and irrelevant in this de novo proceeding involving Chapter 403, Florida Statutes, and rules promulgated thereunder.

1. Accepted, but not itself materially dispositive of the issues to be adjudicated in this proceeding.

2. Accepted, but not materially dispositive of the issues material and relevant to adjudication of this proceeding.

3. Rejected, in accordance with the ruling on motion in limine in this proceeding as immaterial, as not supported by the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact. The competent, substantial evidence of record adduced at the hearing shows

   that the water quality considerations and public interest considerations embodied in Section 403.918(1)&(2), Florida Statutes, Section 403.919, Florida Statutes, and rules promulgated thereunder will be complied with by the project, as it is described in the evidence adduced at hearing.

4. Rejected, as contrary to the preponderant weight of the credible evidence.

Respondent Kline's Proposed Findings of Fact

Any proposed findings of fact contained in the "Recommended Order" submitted by Respondent Kline cannot be separately and independently ruled upon. The document denominated "Recommended Order" submitted by Respondent Kline contains discussion and argument concerning the quantity and quality of the testimony in evidence, legal argument and, at best, is a discussion of the testimony of various witnesses, rather than coherent proposed findings.

Therefore, the proposed findings of fact submitted by Respondent Kline to the extent they are proposed findings of fact are rejected as being incapable of coherent, cogent, separate rulings.

Respondent Department of Environmental Regulation's Proposed Findings of Fact

The proposed findings of fact submitted by the Department of Environmental Regulation, now known as the Department of Environmental Protection, to the extent they are consistent with the proposed findings of fact of the Hearing Officer are accepted. To the extent that those proposed findings of fact are inconsistent with those made by the Hearing Officer on the same issues and subject matter, they are rejected as being subordinate thereto or immaterial or not in accord with the preponderant weight of the evidence.

COPIES FURNISHED:

Mrs. Sarah Berger Post Office Box 83

Inglis, Florida 34449

William A. Kline, Jr.

398 South Inglis Avenue Inglis, Florida 34449

Francine M. Ffolkes, Esquire Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Richard W. Wesch, Esquire Assistant County Attorney

107 North Park Avenue, Suite 8 Inverness, Florida 34450

Virginia B. Wetherell, Secretary Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Kenneth Plante, Esquire General Counsel

Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period 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

SARAH E. BERGER,

Petitioner,

vs. DOAH CASE NO. 93-0264

OGC CASE NO. 92-2356

WILLIAM KLINE and DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Respondents,

and

CITRUS COUNTY,

Intervenor.

/

FINAL ORDER

On November 29, 1993, a Hearing Officer with the Division of Administrative Hearings (hereafter "DOAH"), submitted his Recommended Order to the Petitioner, Sarah E. Berger (hereafter "Berger"), and to the Respondents, William Kline (hereafter "Kline"), and the State of Florida Department of Environmental Protection, formerly known as the Department of Environmental Regulation (hereafter "Department"), and to the Intervenor, Citrus County, Florida (hereafter "County"). A copy of the Recommended Order is attached hereto as Exhibit A.

Berger filed her pro se Exceptions to the Recommended Order with the Department on December 9, 1993, but did not furnish the Department with a transcript of the formal hearing before the DOAH Hearing Officer. Kline served his pro se Response to Berger's Exceptions by letter dated December 17, 1993.

On December 20, 1993, the Department received a letter with attachments from the Mayor of the Town of Inglis pertaining to this administrative proceeding. On January 4, 1994, the Department received a letter from Berger addressed to the Secretary containing further argument concerning the issues in this proceeding. Neither of these letters indicated service on the other parties to this proceeding. These letters (and attachments) from the Mayor of Inglis and Berger were treated as ex parte communications and were not considered in the conclusions and rulings contained in this Final Order. The matter is now before me as Secretary of the Department for final agency action.

BACKGROUND

On April 24, 1992, the Department received an application (number 382124873) from Kline for a dredge and fill permit to construct a private boat dock on pilings adjacent to and in the waters of the Withlacoochee River. (Kline's Ex. 1) The location of the proposed project is approximately 800 to 900 feet west and downstream of the U.S. 19 Highway bridge near Inglis, Florida. (Kline's Exs. 1 and 4)

Kline's property is located on the northern bank of the Withlacoochee River in Levy County, Florida, but the proposed project extends waterward of Kline's shoreline. (Kline's Ex. 1) The waterward portion of the project is located within the boundaries of Citrus County. 1/

On December 7, 1992, the Department executed a notice of Intent to Issue Kline's application for dredge and fill permit number 382124873, subject to various conditions specified in the notice. (Kline's Ex. 2) Berger then filed a timely petition asserting that she was an adjacent landowner and that she opposed the issuance by the Department of the permit to Kline for the proposed boat dock project. Berger's petition was subsequently forwarded to DOAH for a formal hearing pursuant to s. 120.57(1), Florida Statutes. Berger's petition was given DOAH Case No. 93-0264 and Hearing Officer P. Michael Ruff (hereafter "Hearing Officer") was assigned to hear the case.

The formal hearing in DOAH Case No. 93-0264 was scheduled for and actually commenced on April 12, 1993, in Inglis, Florida. However, during the week prior to the hearing the County filed with DOAH a petition to intervene in the administrative proceeding. At the beginning of the hearing on April 12, the Hearing Officer heard argument from the County and all parties concerning the County's right to intervene.

The Hearing Officer ultimately ruled that the County had not been provided the notice it was entitled to under s. 403.916(2), Florida Statutes. The Hearing Officer then bifurcated the hearing and directed that the County be given the opportunity to file a more detailed petition, conduct discovery and present evidence and argument at the bifurcated portion of the hearing.

The Department subsequently filed a renewed motion to dismiss and a motion in limine directed to the County's petition to intervene. On July 1, 1993, the Hearing Officer heard argument on the pending motions and granted the Department's motion to dismiss with leave to the County to file an amended petition to intervene by July 7, 1993. The Hearing Officer also granted the

Department's motion in limine, thereby excluding any evidence at the bifurcated hearing pertaining to the County's comprehensive plan. The County then timely filed its amended petition to establish standing as a party, or to intervene.

The second portion of the bifurcated formal hearing was held on July 13, 1993, in Inverness, Citrus County, Florida. The Recommended Order reflects that the applicant Kline testified in his own behalf, presented the testimony of additional witnesses and moved various exhibits into evidence at the hearing.

The petitioner Berger presented testimony of several witnesses and also introduced various exhibits into evidence. The Department and the County both presented the testimony of expert witnesses and introduced various exhibits into evidence at the hearing. (Recommended Order, pages 2-3)

The key issues before the Hearing Officer were:

1. Whether reasonable assurances had been provided that the proposed project would comply with the applicable water quality standards and public interest requirements set forth in ss. 403.918(1) & (2) and 403.919, Florida Statutes (1991), 2/ and implementing rules.

   
   

2. Whether the County had standing to challenge the Department's proposed action to issue a permit to Kline for the boat dock project.

The Hearing Officer ruled in paragraph 38 of his conclusions of law that the preponderance of evidence at the hearing demonstrated that the proposed boat dock project, as conditioned in the Department's notice of intent to issue, would not violate the applicable water quality standards and that the project is clearly in the public interest." The Hearing Officer also ruled in paragraph 39 that no adverse cumulative impacts are expected on water quality or on the public interest criteria.

In paragraph 45 of the Recommended Order, the Hearing Officer ruled that the necessary reasonable assurances had been provided that the water quality standards and public interest requirements would be met by the proposed project, given the conditions to be imposed upon the project. The Hearing Officer ultimately recommended that the Department enter a Final Order directing issuance of the permit in question, subject to the "conditions found hereinabove and contained in the intent to issue."

RULINGS ON BERGER'S EXCEPTIONS

Preface

Berger filed her Exceptions to the Recommended Order in a narrative letter form, disputing portions of the Findings of Fact and Conclusions of Law. As a preface to my rulings on the various exceptions, it is appropriate that I comment on the standard of review imposed by law on agency heads in reviewing recommended orders submitted by DOAH hearing officers.

Under s. 120.57(1)(b)10, Florida Statutes, an agency may reject or modify the conclusions of law and interpretations of administrative rules contained in the recommended order. However, the agency may not reject or modify findings of fact made by the Hearing Officer, unless a review of the complete record demonstrates that such findings were not based on competent, substantial evidence or that the proceedings on which the findings were based do not comply with the essential requirements of law. See, e.g., Freeze v. Dept. of Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990); and Florida Department of

Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987). Competent, substantial evidence has been defined by the Florida Supreme Court as such evidence as is "sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusions reached." DeGroot v.

Sheffield, 95 So.2d 912, 916 (Fla. 1957).

The agency may not reweigh the evidence, resolve conflicts therein or judge the credibility of witnesses, as those are matters within the province of the hearing officer. Heifetz v. Dept. of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985). Consequently, if the record of the DOAH proceedings discloses any competent, substantial evidence to support a finding of fact made by the Hearing Officer, I am bound by such finding. Florida Department of Business Regulation v. Bradley, supra, at page 1123.

However, I am free to exercise my judgment and reject the Hearing Officer's conclusions of law. See, e.g., MacPherson v. School Bd. 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); and Alles v. Dept. of Professional Regulation, 423 So.2d 624 (Fla. 5th DCA 1982).

Exceptions in Unnumbered Paragraphs on Pages 1 through 5

Pages 1 through 5 of Berger's Exceptions to the Recommended Order contain a variety of alleged errors on the part of the Hearing Officer pertaining to the Statement of Issues, Preliminary Statement, and the Findings of Fact. Based on a review of the documents in the record, including the exhibits admitted into evidence at the DOAH hearing, I find no fault with the Hearing Officer's Statement of Issues and Preliminary Statement in the Recommended Order.

No transcript of the DOAH final hearing was furnished to me for review.

Thus, I am without authority to reject or modify the Hearings Officer's Findings of Fact in view of the legal authorities and discussion set forth in the preface above and in the succeeding ruling.

Berger also objects to the Hearing Officer's rulings at the final hearing, including his rejection of some of Berger's proposed exhibits and the weight and credibility given by the Hearing Officer to the testimony and documentary evidence presented on behalf of the Department and Kline. However, an agency reviewing a recommended order of a hearing officer may not reweigh or resolve conflicts in the evidence, nor may the agency judge the credibility of witnesses. Such evidentiary matters are functions within the province of the hearing officer. Heifetz v. Dept. of Business Regulation, supra, at 1281.

Berger argues on page two that the application submitted by Kline to the Department was "improper". However, Kline's application was submitted using a standard Department "Joint Application for Works in the Waters of Florida" form with various attachments, including detailed drawings of the proposed project by an architect. (Kline's Ex. 1) In addition, a section 120.57 formal hearing is a de novo proceeding where the parties are allowed to present additional evidence at the hearing on matters not previously included in the application or in the notice of intent to issue the permit. Hamilton County Commissioners v.

State, 587 So.2d 1378, 1387-88 (Fla. 1st DCA 1991); and Florida Dept. of Transportation v. J.W.C. Company, Inc., 396 So.2d 778, 786-787 (Fla. 1st DCA 1981). Thus, I find this contention by Berger to be without merit.

Berger also criticizes the Hearing Officer for allegedly ignoring her Proposed Recommended Order and giving too much consideration to the Department's Proposed Recommended Order. The Hearing Officer ruled in the Appendix to Recommended Order that Berger's Proposed Recommended Order did not contain separate proposed findings of fact and that any proposed findings were "inextricably entangled with extensive argument on the . evidence and attempts to argue the Petitioner's position from the standpoint of documents . . . without an indication whether those documents are admitted into evidence or not." (Recommended Order, p. 25)

I would observe here that neither the petitioner Berger nor the applicant Kline were represented by counsel in the DOAH proceedings and that the Hearing Officer also made similar rulings noting the inadequacies of Kline's proposed findings of fact. (Recommended Order, p. 27) Thus, it does not appear to me that Berger was singled out by the Hearing Officer for unfair treatment. In any event, I do not have an adequate record to determine that the Hearing Officer's rulings related to Berger's proposed factual findings constitute reversible error without a transcript of the DOAH final hearing to review.

In view of the above, Berger's exceptions contained in the unnumbered paragraphs on pages 1 through 5 of her Exceptions to Recommended Order are denied.

Exceptions to Findings of Fact Numbers 1, 2, 3, 5, 9, 10, 13, 15, 16, 17, 18,

19, 20, 21 and 22

These exceptions consist of argument by Berger disputing the Hearing Officer's respective Findings of Fact contained in the above enumerated paragraphs of the Recommended Order. However, the applicant Kline correctly points out in his letter of response to Berger's Exceptions that she has not provided me with a transcript of the [DOAH] hearing.

As noted in the above preface to these rulings, I am prohibited by the law of Florida from rejecting or modifying findings of fact in a recommended order, unless I review the "complete record" of the proceedings before the Hearing Officer. The case law of this state construing s. 120.57(1)(b), Florida Statutes, has consistently held that a reviewing agency should not reject the findings of fact of a DOAH hearing officer where the party disputing the findings of fact has failed to furnish to the reviewing agency a complete transcript of the DOAH proceedings. See, e.g., Rabren v. Department of Professional Regulation, 568 So.2d 1283 (Fla. 1st DCA 1990); Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987); and Booker Creek Preservation, Inc. v. Department of Environmental Regulation, 415 So.2d 750 (Fla. 1st DCA 1982).

The Department's rules implementing s. 120.57(1)(b), Florida Statutes, are even more explicit. Rule 17-103.200(1), F.A.C., requires that "[a]ny exception disputing a finding of fact must be accompanied by a complete transcript of the hearing." The related provisions of Rule 17-103.205(3), F.A.C., direct that "[a] party filing [an] exception to any finding of fact of the hearing officer must file a complete transcript of the hearing with the exception."

Berger alleges on page one of her Exceptions to Recommended Order that the attorney representing the Department in the DOAH proceedings "had announced a written transcript would be provided and furnished (sic) court reporters at the

Hearings." The documents contained in the record reflect that the proceedings before the DOAH Hearing Officer at the final hearing were recorded by a court reporter, but were not transcribed.

The record also contains a post-hearing Order entered by the Hearing Officer on July 21, 1993, pertaining to the transcript. This July 21 Order noted that the Hearing Officer had received a letter from the attorney representing the Department in the DOAH proceedings "stating that the record of the hearing will not be transcribed" [by the Department). 3/ The subject Order also gave the parties thirty (30) days therefrom to file their proposed findings of fact and conclusions of law. Thus, Berger received notice four months prior to the entry of the Recommended Order that the Department did not intend to have the testimony at the final hearing transcribed.

In any event, the rules governing the recording of testimony at a DOAH final hearing expressly provide that at "hearings during which the services of a court reporter have been retained, any party who wishes a written transcript of the testimony shall order the same at his own expense." Rule 60Q-2.023(3),

F.A.C. (emphasis supplied) Furthermore, the cases cited above make it clear that the party seeking agency review of a recommended order of a hearing officer has the responsibility for furnishing the transcript of the DOAH proceedings to the agency. See, e.g., Rabren v. Dept. of Professional Regulation, supra, at 1290.

In view of the governing law delineating the responsibilities for furnishing hearing transcripts to the reviewing agency, I am compelled to conclude that responsibility for a transcript being furnished must ultimately rest with Berger. Consequently, Berger's Exceptions to Findings of Fact Numbers 1, 2, 3, 5, 9, 10, 13, 15, 16, 17, 18, 19, 20, 21 and 22 are denied.

Exception Numbers 24, 26, 28, 29, 31, 32, 33, 34 and 38

These exceptions by Berger again deal primarily with the Hearing Officer's evidentiary rulings and factual findings, even though the exceptions refer to paragraphs in the Recommended order that are designated as "Conclusions of Law". Some of these exceptions also repeat factually related arguments previously made by Berger and denied in my prior rulings above.

I do share Berger's concern raised in exception 32 with respect to potential adverse effects on manatees located in the Withlacoochee River, if the proposed project is permitted. The Hearing Officer found in paragraph 15 of the Recommended Order that the "evidence establishes that the proposed dock will not exceed in a significant way the dock design criteria which the manatee experts agree would minimize any potential [adverse] impacts on the animals." The Hearing Officer also found in paragraph 15 that "[t]he proposed project was shown not to [adversely] affect manatee travel patterns". Based on these factual findings, the Hearing Officer ruled in conclusion of law number 32 "that the proposed project will not adversely affect manatees so as not to be clearly in the public interest."

I have concluded in my prior rulings on Berger's exceptions, that Florida law precludes the reviewing agency from reweighing or resolving conflicts in the evidence or judging the credibility of witnesses. I have also previously ruled that the law of this state prohibits the reviewing agency from rejecting or modifying the findings of fact of a hearing officer where the party disputing the factual findings has failed to furnish a transcript of the DOAH proceedings.

In addition, I have reviewed the Hearing Officer's rulings on matters of law in paragraphs 24 through 38 and conclude that they fairly state the applicable law governing the issuance of a dredge and fill permit for Kline's proposed project. Accordingly, Berger's exceptions to conclusions of law numbers 24, 26, 28, 29, 31, 32, 33, 34 and 38 are denied.

Exception to Conclusion of Law Number 39

Berger does not directly dispute the statements in paragraph 39 of the Recommended Order pertaining to the "cumulative impact" issue wherein the Hearing Officer concludes that no similar structures are contemplated or are under permit review for this area in the future. Berger merely observes that "[b]ecause the Department does not presently have applications pending for similar structures does not preclude applications for such when this permitting by the State is known." I agree with this observation in the abstract, but the reasonable expectation of future projects, or lack thereof, is a factual determination that is beyond the scope of my review for the reasons set forth above. To the extent Berger's observation constitutes an exception, it is denied.

Rulings on Exception to Conclusion of Law No. 40

In paragraph 40 of the Recommended Order, the Hearing Officer cites and discusses the case law of Florida dealing with the traditional requirements for a party to have standing to participate in an administrative permitting proceeding. See, e.g., Agrico Chemical Co. v. Dept. of Environmental Regulation, 406 So.2d 478 (2d DCA 1981). This exception by Berger consists of naked assertions of the County's standing in this proceeding without any citations of legal authorities to support her conclusions. Berger also fails to cite any law that would arguably authorize her to now raise the standing issue on behalf of the County, 4/ and I specifically decline to rule on this question. I will, however, independently examine the legal issue of the County's standing in a separate ruling below.

For the reasons set forth herein and in my separate ruling on the issue of the County's standing, I adopt the Hearing Officer's conclusions of law set forth in paragraph 40 of the Recommended Order.

STANDING OF THE COUNTY

As noted in the preface above, I am free to reject the Hearing officer's conclusions of law. Siess v. Dept. of Health and Rehabilitative Services, supra, at 478. In paragraphs 40 through 43 of the Recommended Order, the Hearing Officer ruled that the County had failed to demonstrate at the hearing that it had suffered a "substantial injury" under the two-prong test enunciated in the leading case of Arico Chemical Co. v. Department of Environmental Regulation, supra, and further defined in later court and administrative decisions. Of particular importance here is the requirement that the County's interest must exceed the general interest of its citizens. Hamilton County and City of Jasper v. TSI Southeast, Inc., 12 F.A.L.R. 3774 (Fla. Dept. of Env. Reg. 1990), aff'd, 587 So.2d 1378 (Fla. 1st DCA 1991).

I have reviewed the County's Amended Petition to Establish Standing as a Party or Intervene and concur with the Hearing Officer's conclusion that the County did not allege therein any interests that appear to exceed the general interests of its citizens. In view of the lack of a transcript, I must also

accept the Hearing Officer's factual finding that the County's witnesses "did not present any evidence to substantiate the allegations of the amended petition regarding standing." (Recommended Order, paragraph 43)

The County did allege that Kline's proposed boat dock exceeded size limitations imposed in the Manatee Protection Element of the County's Comprehensive Plan. However, the Hearing Officer correctly concluded in paragraph 42 of the Recommended Order that the Department is not authorized to deny a dredge and fill permit based on allegations and proof of the proposed project's noncompliance with local land use restrictions and long-range development plans. The denial or issuance of such permits must be based solely on the applicable water quality standards and public interest requirements set forth in the governing permitting statutes and rules. See Taylor v. Cedar Key Special Water & Sewerage Dist., 590 So.2d 481 (Fla. 1st DCA 481); and Council of the Lower Kevs v. Charles Toppino & Sons, Inc., 429 So.2d 67 (Fla. 3d DCA 1983).

The Hearing officer observed, however, in paragraph 44 that the County "may have standing to participate as an Intervenor in this proceeding under the provisions of Chapter (sic) 403.412(5), Florida Statutes." Section 403.412, Florida Statutes, is known as the "Environmental Protection Act of 1971." Subsection 403.412(5), Florida Statutes, confers standing upon a county to intervene in an administrative proceeding pertaining to air or water pollution protection based on a verified pleading asserting that the proposed activity to be permitted "has or will have the effect of impairing, polluting or otherwise injuring the air, water or other natural resources of the state." A county may intervene under the conditions of this section without the necessity of demonstrating the "special injury" and "substantial interest" required by the traditional rules of standing. See Florida Wildlife Federation v. Dept. of Environmental Regulation, 390 So.2d 64 (Fla. 1980); and Cafe Cave Corp. v. Dept. of Environmental Regulation, 498 So.2d 1309 (Fla. 1st DCA 1986), rev. den. 509

So.2d 1117 (Fla. 1987).

The Hearing Officer emphasized that the County's petition failed to cite s.

403.412(5), Florida Statutes, as the specific basis for its standing to intervene. However, I am of the view that the substantive assertions in the petition to intervene control and that a technical failure to cite the specific statutory authority should not be fatal to the County's standing to intervene under this section. The County does assert in paragraph 3.(c) of its petition, verified by an Assistant County Attorney, that the proposed boat dock "would constitute a substantial injury to the natural resources of Citrus County, specifically including the West Indian (Florida) manatee." I conclude that these assertions are sufficient to confer standing on the County to intervene in these administrative permitting proceedings under the provisions of s.

403.412(5), Florida Statutes.

Notwithstanding the Hearing Officer's reservations about the County's standing to intervene, the Recommended Order reflects that the County was allowed to conduct discovery, present evidence and cross-examine the other parties' witnesses at the hearing, file a proposed recommended order and otherwise participate as a party in these proceedings. (Recommended Order, p. 3, and para. 44) Thus, I conclude that the Hearing Officer's failure to affirmatively rule that the County had standing to intervene under s.

403.412(5), Florida Statutes, is harmless error.

CONCLUSION

I commend Berger and the County for their demonstrated commitment with respect to the protection of the manatee, which is an endangered species and a precious natural resource of this state. However, the Department's Notice of Intent to Issue the subject permit contains eleven (11) specific conditions pertaining solely to protection of manatees. (Kline's Ex. 2, para. 13)

The Recommended Order also contains detailed findings of fact which I am required to accept under the circumstances of this case reflecting that the proposed project's potential adverse effect on manatees in the lower portion of the Withlacoochee River will be minimal. (Recommended Order, paragraphs 13, 14 and 15) I consider it significant that the Recommended Order contains specific findings by the Hearing Officer that, although manatees have been sighted in the immediate vicinity of the project site, the manatees mostly inhabit the estuarine mouth or lower reaches of the river and that Kline's property is approximately 8 miles upstream from the mouth of the river. (Recommended Order, paragraph 13)

In addition, as discussed above, even if the County had established at the DOAH hearing that the proposed boat dock may not comply with size requirements of the County's Comprehensive Plan dealing with protection of manatees, I would not have the authority to deny the subject permit based solely on such a showing. Florida case law has held that "[r]emedies apart from the permitting scheme are available" if Kline's boat dock should violate any mandatory requirements in the County's Comprehensive Plan. Taylor v. Cedar Key Special Water and Sewerage District, supra, at 482.

Since the Withlacoochee River is designated an "Outstanding Florida Water," reasonable assurances must be provided that the proposed project is clearly in the public interest under s. 403.918(2), Florida Statutes. In paragraph 38 of the Recommended Order, the Hearing Officer concluded that this "clearly in the public interest" requirement had been met based on the evidence presented at the hearing. The Hearing Officer specifically cited the conditions in the Notice of Intent to Issue requiring Kline to clear the existing bank of nuisance plants and to plant and maintain identified native plant species, and the condition requiring Kline to grant the Department a perpetual conservation easement along his shoreline. (Kline's Ex. 2) The conservation easement was required in order to help protect the replanted shoreline and prevent further shoreline hardening through construction of a seawall or other structures in the future. (Recommended Order, paragraph 4)

I have reviewed these mitigation requirements set forth in the Department's Notice of Intent to Issue and view them to be significant conditions that are "clearly in the public interest." In view of the absence of a transcript containing opposing evidence, I am compelled to concur with the Hearing Officer's conclusion that the requirements of s. 403.918(2), Florida Statutes, have been complied with here.

Finally, my concern would be greater if the record before me showed that the subject application sought a permit to construct a completely new boat dock facility at a more "pristine" location along the Withlacoochee River. It is undisputed here that there is an existing pier and dock at the same site, and that Kline's application seeks a permit to remodel and expand the existing structures. (Kline's Exs. 1 and 2; Recommended Order, paragraphs 1 and 2) Furthermore, even though the Withlacoochee River is designated an Outstanding Florida Water, the Hearing Officer found that the Inglis portion of the river

where the project site is located is now largely characterized by man-made structures along both banks and that most residents in the vicinity of Kline's property already have docks, seawalls and/or boathouses. (Recommended Order, paragraphs 11 and 21)

In view of the foregoing, IT IS ORDERED THAT:

1. Paragraph 44 of the Recommended Order is modified to read as follows:

   
   

   44. Notwithstanding the above, the

   County appears to have standing to participate as an Intervenor in this proceeding under the provisions of s. 403.412(5), Florida Statutes, which is a part of the Environmental Protection Act of 1971. This section confers standing upon a political subdivision on the filing of a verified petition asserting that the activity to be permitted "has or will have the effect of impairing, polluting or otherwise injuring the air, water, or other natural resources of the state." The County may intervene under the conditions of this section without the necessity of demonstrating the "special injury" and "substantial interest" required by the traditional rules of standing. See Florida Wildlife Federation v. Dept. of Environmental Regulation, 390 So.2d 64 (Fla. 1980); and Cape Cave Corp. v. Dept. of Environmental Regulation, 498 So.2d 1309 (Fla. 1st DCA 1986), rev. den. 509 So.2d 1117 (Fla. 1987). The County does assert in paragraph 3.(c) of its petition, verified by an Assistant County Attorney, that the proposed boat dock "would constitute a substantial injury to the natural resources of Citrus County, specifically including the West Indian (Florida) manatee." These assertions are sufficient to confer standing on the County to intervene in this permitting proceeding under said provisions of s. 403.412(5), Florida Statutes.

   
   

2. The Recommended Order of the Hearing Officer, as modified in paragraph A above, is adopted and is incorporated by reference herein.

   
   

3. The Department's Southwest District Office is directed to issue permit number 382124873 to Kline, subject to the conditions set forth in the Notice of Intent to Issue.

Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the clerk of the Department.

DONE AND ORDERED this 11th day of January, 1994, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

VIRGINIA B. WETHERELL

Secretary

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400

ENDNOTES

1/ The boundary line of Citrus County extends to the north bank of the Withlacoochee River along this portion of the river. See s. 7.09, Florida Statutes.

2/ The provisions of ss. 403.918 and 403.919 were repealed effective July 1, 1993, by Ch. 93-213, s. 44, Laws of Florida. These provisions were incorporated in substantial form into the provisions of s. 373.414, Florida Statutes (1993), by s. 30 of Ch. 93-213. The "grandfather" provisions of s. 43 of Ch. 93-213 state that the "repeal of any statutory sections under this section shall not be grounds for dismissal or amendment of and shall have no effect on any administrative or judicial proceeding pending on the effective date of the act."

3/ In the letter referred to in the Hearing Officer's July 21, 1993 Order the Department's counsel admitted that she had announced at the conclusion of the hearing that a transcript would be ordered. However, the letter further advised the Hearing Officer and all the parties that she was later informed that the Department would not authorize the expenditure of the funds for the costs of having the final hearing transcribed by the court reporter.

4/ The County did not file any Exceptions to the Recommended Order.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been sent by U.S. Mail to the following listed persons:

Mrs. Sarah Berger William A. Kline, Jr.

P O Box 83 398 S Inglis Ave

Inglis Florida 34449 Inglis Florida 34449

Richard W. Wesch, Esquire Assistant County Attorney

107 N Park Ave Ste 8 Inverness Florida 34450

and by hand delivery to:

P. Michael Ruff Ann Cole, Clerk

Hearing Officer Division of Administrative Division of Administrative Hearings

Hearings The DeSoto Bldg

The DeSoto Bldg 1230 Apalachee Pkwy

1230 Apalachee Pkwy Tallahassee Florida 32399-1550

Tallahassee Florida 32399-1550

Francine M. Ffolkes, Esquire Department of Environmental Protection 2600 Blair Stone Rd

Tallahassee Florida 32399-2400

this 11th day of January, 1994.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

J. TERRELL WILLIAMS Assistant General Counse Twin Towers Office Build ng 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Telephone: (904)488-9314

Docket for Case No: 93-000264

Orders for Case No: 93-000264