STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ALDEN POND, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 93-6982
) DEPARTMENT OF ENVIRONMENTAL PROTECTION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on April 26, 27, 28, and 29, 1994, in Vero Beach, Florida.
APPEARANCES
For Petitioner: Joseph W. Landers, Esquire
John T. LaVia, III, Esquire Landers & Parsons
310 West College Avenue Post Office Box 271 Tallahassee, Florida 32302
For Respondent: Douglas MacLaughlin, Esquire
John Chaves, Esquire
Department of Environmental Protection 2600 Blair Stone Road
Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUES
Whether Petitioner is entitled to a wetland resource permit to construct an artificial waterway to be connected to the Indian River and, if so, the conditions that should be attached to the permit.
Whether Respondent is estopped to deny the issuance of the wetland resource permit to Petitioner for the subject project.
Whether Respondent should grant to Petitioner a variance to dredge and fill in Class II waters that have been conditionally approved for shellfish harvesting.
Whether Petitioner is entitled to a default variance pursuant to Section 120.60(2), Florida Statutes, to dredge and fill in Class II waters that have been conditionally approved for shellfish harvesting.
PRELIMINARY STATEMENT
This proceeding involves a challenge by Petitioner to the Respondent's denial of Orchid Island Associates' application for a wetland resource permit to construct a waterway to be connected to the Indian River near the Town of Orchid, Indian River County, Florida. Petitioner is the successor in interest to Orchid Island Associates.
The initial application for this project was denied by the Respondent on September 12, 1991. Petitioner thereafter spent considerable time and money in making substantial modifications to the project and in providing information to Respondent. Petitioner asserts that Respondent is estopped by its conduct to deny the application as modified. Petitioner also asserts that it applied for a variance to dredge and fill in Class II or Class III waters, which should be granted on the merits of the request or, in the alternative, by default pursuant to Section 120.60(2), Florida Statutes, due to Respondent's failure to timely act on the request. Petitioner further asserts that it has provided all reasonable assurances required by statute and that the project as modified is clearly in the public interest when the mitigation plan is properly considered.
Respondent asserts that all elements of estoppel are not present in this case and that the doctrine cannot be applied to the facts of this case.
Respondent further asserts that the application for a variance did not contain the requisite fee and that it was, therefore, not required to act on the request. Respondent asserts that the project as modified is not clearly in the public interest, even when the mitigation plan is considered.
At the formal hearing, Petitioner called as its witnesses John C. Kurtz, Ronald H. Sasso, Martin Roessler, Ronald L. Armstrong, and Trudie Bell. Mr. Kurtz is a property manager and agent for Alden Pond, Inc. Mr. Sasso was accepted as an expert witness in the fields of coastal and hydrographic engineering. Dr. Roessler was accepted as an expert witness in the fields of water quality, marine ecology, and impacts on endangered species, with emphasis on the manatee. Mr. Armstrong is an environmental consultant and former employee of the Department of Environmental Regulation. Mr. Armstrong was accepted as an expert in the fields of collection and evaluation of water quality data, the design and evaluation of mitigation projects, the identification and evaluation of wetland communities, navigation and boating, and the Respondent's practices in applying its policies, rules, and statutes relating to permitting. Ms. Bell was, at the times pertinent to this proceeding, an Environmental Supervisor II employed by the Respondent.
Petitioner offered 31 exhibits, each of which was accepted into evidence.
At the formal hearing, Respondent presented the testimony of Barbara Bess, Patrick Mark Rose, Brian Pierce, Dorn Whitmore, Douglas Woodward, MaryAnn Poole, Brian Poole, Kevin Pope, and Kenneth L. Echternacht. Ms. Bess is Respondent's program manager of wetland resource permitting and was accepted as an expert witness in the field of environmental impacts of dredge and fill projects and in the field of dredge and fill permitting. Mr. Rose is an environmental administrator in Respondent's Office of Protected Species and was accepted as an expert in the field of impacts on manatees. Mr. Pierce is employed by Respondent as an Environmental Specialist III and was accepted as an expert in the field of impacts on shellfish. Mr. Whitmore is employed by the U.S. Fish and Wildlife Service as director of Pelican Island National Wildlife Refuge and was accepted as an expert in the field of wildlife refuge management. Mr.
Woodward is employed by Respondent as a professional land surveyor and was accepted as an expert in the field of land surveying. Ms. Poole is employed by
the Florida Game and Fresh Water Fish Commission as a Biological Scientist III in its Office of Environmental Services and was accepted as an expert in the field of botany and as to impacts on fish and wildlife. Mr. Poole is employed by Respondent as an Environmental Specialist and as manager of certain aquatic preserves, including the Indian River Malabar to Vero Beach Aquatic Preserve. Mr. Poole was accepted as an expert in the field of marine biology and as to impacts on seagrasses. Mr. Pope is employed by Respondent as an Environmental Supervisor II in its Wetland Resource Regulation Section and was accepted as an expert in the field of environmental impacts of dredge and fill projects, the dredge and fill permitting process, and water quality. Mr. Echternacht is employed by Respondent as a hydrographic engineer and was accepted as an expert in the field of hydrographic engineering. Respondent offered 25 exhibits, each of which was accepted into evidence.
The parties filed a Prehearing Stipulation on April 19, 1994, which contained certain factual stipulations that form the basis for certain findings of fact in this Recommended Order.
A transcript of the proceedings was filed on June 1, 1994. Revisions to the transcript were filed on June 8, 1994, and the parties were given ten days after the filing of the revisions to file their post-hearing submittals. The Respondent's Proposed Recommended Order was filed under the wrong case number and, consequently, was not timely docketed. Without objection from Petitioner, Respondent was permitted to file another copy of its Proposed Recommended Order after the ten day period had expired. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.
FINDINGS OF FACT
THE PARTIES
The Respondent is the successor agency to the Florida Department of Environmental Regulation and has permitting authority over the subject project pursuant to Chapter 403, Florida Statutes. The Respondent's file number for this matter is 311765419.
Petitioner, Alden Pond, Inc., is a subsidiary of First Union National Bank of Florida and is the successor in interest to Orchid Island Associates. John C. Kurtz is the designated property manager for this project and appeared at the formal hearing as Alden Pond's authorized agent.
THE PROPERTY AND THE VICINITY
Petitioner has record title to all of Government Lot 9 in Section 15, Township 31 South, Range 39 East, less the Jungle Trail Road right of way, and all of Government Lots 2, 3, 6, and 7, Section 22, Township 31 South, Range 39 East, less the road right of way for State Road 510.
Petitioner does not own land below the mean high water line of the Indian River, which forms the western boundary of the property. Much of the property, approximately the northern half, abuts a part of the Indian River that has been leased by the State of Florida to the United States Fish and Wildlife Service as part of the Pelican Island National Wildlife Refuge. The Pelican Island National Wildlife Refuge was the first national wildlife refuge
established in the United States and has been declared to be a water of international importance. Upland of the proposed project is a golf course and residential development.
The Indian River at the project site is within the Indian River Aquatic Preserve, which is classified as Class II Outstanding Florida Waters. The Indian River in the vicinity of the project is part of the Intercoastal Waterway system, is navigable by large vessels, and is an important travel corridor for manatees.
The Indian River in the vicinity of the project is a healthy estuarine system. Minor deviations from Respondent's dissolved oxygen standards have been recorded. These minor deviations are typical and represent natural conditions for this type of system. Water quality sampling from March 1994 yielded no samples in which deviations from Respondent's dissolved oxygen standards were observed.
THE ORIGINAL PROJECT
On February 21, 1990, Orchid Island Associates submitted to the Respondent an application for a wetland resource permit to construct a boat basin and canal on its property adjacent to the Indian River. The artificial waterway that Petitioner proposes to construct on its property will, for ease of reference, also be referred to as a canal. Petitioner proposes to dredge from the north terminus of the canal to the Intercoastal Waterway a channel, which will be referred to as the hydrological channel. Petitioner proposes to dredge from the south terminus of the canal to the Intercoastal Waterway a channel, which will be referred to as the access channel.
The original project involved, among other features, a canal approximately 6,400 feet long, the dredging of the hydrological channel and the access channel, the construction of 44 docks to be located along the eastern side of the canal, and the dredging of an area adjacent to the canal for a 58 slip marina. The width of the canal was to range between 100 and 200 feet. The original project required the filling of 4.72 acres of wetlands and the dredging of 8.81 acres of wetlands for a direct impact on 13.53 acres of wetlands.
On January 15, 1991, Respondent issued a preliminary evaluation letter pertaining to the initial application that contained the following conclusion: "the project cannot be recommended for approval."
On September 12, 1991, Respondent issued a Notice of Permit Denial dated September 12, 1991, which stated that the application would be denied. This denial letter did not suggest any revisions that would make the project permittable and represented a strong position by the Respondent that the project as originally proposed should be denied.
The September 12, 1991, Notice of Denial correctly described the project site and the initial proposal as follows:
. . . The proposed project is located north of and adjacent to County Road 510, north and east of Wabasso Bridge and adjacent to the
eastern shore of the Indian River. The Indian River at the project site is within the Indian River Aquatic Preserve, which is classified
as Class II, Outstanding Florida Waters. The
Pelican Island National Wildlife Refuge, also an aquatic preserve and an Outstanding Florida Water, is immediately west of the project site.
Historically, the site of the marina and its associated upland development consisted of a wetland adjacent to the Indian River and a large citrus grove. Subsequently, the wetland was surrounded by a dike and impounded for mosquito control purposes. At some point in the past, a borrow pit 1/ was excavated within the landward (eastern) edge of the impounded wetland. Most of the citrus grove has been converted to a residential community associated with a golf course.
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The proposed project included excavation of a 6,400 linear ft. canal along the upland/wetland edge between the impoundment and the adjacent upland, dredging the existing borrow pit to a depth of -8 ft. NGVD to create a boat basin that will connect it to the excavated canal, construction of 58 boat slips within the excavated boat basin, excavation of two flushing channels through a portion of the impoundment dike and wetlands within the impoundment to connect the excavated channel to the Indian River and a natural lake within the impoundment, excavation of a 700 ft. long access channel to connect the excavated canal to the Intercoastal Waterway through the seagrass beds along the southern boundary of the project site, filling of 4.72 ac. of wetlands at three locations within the
impoundment to create uplands, and construction of a boardwalk along the southern edge of the excavated canal through the wetlands in the impoundment to provide access to the marina basin. To mitigate for the loss of wetlands, the applicant proposes to enhance 68 ac. of wetlands within the mosquito impoundment by returning the impoundment berm to grade and implementing a rotary ditching project and
open marsh mosquito management to improve the hydrology of the wetlands in the impoundment, planting high marsh species, and donating the enhanced wetlands to the State of Florida for incorporation into the Pelican Island National Wildlife Refuge through a lease to the United States Fish and Wildlife Service.
The September 12, 1991, Notice of Denial provided, in pertinent part, the following reasons for the denial of the project:
The Department hereby denies the permit for the following reasons:
Water quality data for the Indian River adjacent to the project site indicates that the dissolved oxygen (D.O.) standard is not currently being met. The proposed 8 ft. deep canal and marina basin to the Indian River would be expected to result in introduction of additional low D.O. waters into a system
which already does not meet the D.O. standard, thereby resulting in further degradation of the water quality in the Indian River.
In addition to the D.O. problem, the project would result in water quality degradation due to the pollutant loading of marina related pollutants from the boats docked at the 58 slips that are proposed as part of the project in the marina basin. Additional water quality degradation also may result from boats that are moored at docks that may be constructed
at a later date by the owners of the 44 lots adjacent to the canal, pursuant to the exemption in Section 403.813(2)(b), Florida Statutes. This exemption provides that private docks in artificially constructed waters are exempt from dredge and fill permitting and may be constructed without a permit providing they meet the size criteria listed in the statute and provided they do not impede navigation, affect flood control, or cause water quality violations. The boats in the canal system and boat basin would be a chronic source of pollutants for the life of the facility. The proposed water depths and slip sizes will make the basin accessible for use by large boats which can be expected to have on-board sanitation devices. The hydrographic report submitted by the applicant indicates the proposed waters will flush with a 2.6 hr. duration. Although this flushing rate will prevent water quality pollutants from being concentrated in the waters of the basin, it also will have the effect of transporting boat related pollutants to the Indian River, thereby causing degradation of the Outstanding Florida Water.
The project site is within Class II Waters, prohibited for shellfish harvesting, but is adjacent to Class II Waters, approved for shellfish harvesting. Discussion with the Department of Natural Resources, Bureau of
Regulation and Development, indicates that the pollutant loading from the project would probably cause the adjacent waters to be reclassified as "prohibited for shellfish harvesting." The reclassification of the adjacent waters would lower the existing use of the waterbody. Rules 17-302.300(1), (4),
, and (6), Florida Administrative Code, state that:
Section 403.021, Florida Statutes, declares that the public policy of the State is to conserve the waters of the State to protect, maintain, and improve the quality thereof for public water supplies, for the propagation of wildlife, fish and other aquatic life, and for domestic, agricultural, industrial, recreational, and other beneficial uses. It also prohibits the discharge of wastes into Florida waters without treatment necessary to protect those beneficial uses of the waters.
* * *
Existing uses and the level of water quality necessary to protect the existing
uses shall be fully maintained and protected. Such uses may be different or more extensive than the designated use.
Pollution which causes or contributes to new violations of water quality standards or to continuation of existing violations is harmful to the waters of this State and shall not be allowed. Waters having water quality below the criteria established for them shall be protected and enhanced. However, the Department shall not strive to abate natural conditions.
If the Department finds that a new or existing discharge will reduce the quality of the receiving waters below the classification established for them or violate any Department rule or standard, it shall refuse to permit the discharge.
As a result of the above cited factors, degradation of water quality is expected. The applicant has not provided reasonable assurance that the immediate and long-term impacts of the project will not result in the degradation of existing water quality in
an Outstanding Florida Water and the violation of water quality standards pursuant to Rules 17-312.080(1) and (3), Florida Administrative Code, and Rule 17-4.242(2)(a)2.b, Florida Administrative Code. Specific State Water Quality Standards in Rules 17-302.500,
17-302.510 and 17-302.550, Florida
Administrative Code, affected by the completion of the project include the following:
Bacteriological Quality - the median coliform MPN (Most Probable Number) of water shall not exceed seventy (70) per hundred (100) milliliters, and not more than ten percent (10 percent) of the samples shall exceed a MPN of two hundred and thirty (230) per one hundred
(100) milliliters. The fecal coliform bacterial level shall not exceed a median value of 14 MPN per 100 milliliters with not more than ten percent (10 percent) of the samples exceeding 43 MPN per 100 milliliters.
Dissolved Oxygen - the concentration in all waters shall not average less than 5 milligrams per liter in a 24-hour period and shall never be less than 4 milligrams 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 milligrams per liter.
No undissolved oil, or visible oil defined as iridescence, shall be present so as to cause taste or odor, or otherwise interfere with the beneficial use of waters.
In addition the applicant has not provided reasonable assurance that ambient water quality in the OFW will not be degraded pursuant to Rule 17-4.242(2)(a)2.b, Florida Administrative Code.
In addition, pursuant to Rule 17-312.080(6)(a), Florida Administrative Code, the Department shall deny a permit for dredging or filling in Class II waters which are not approved for shellfish harvesting unless the applicant submits a plan or proposes a procedure to protect those waters and waters in the vicinity. The plan or procedure shall detail the measures to be taken to prevent
significant damage to the immediate project areas and to adjacent area and shall provide reasonable assurance that the standards for Class II waters will not be violated.
In addition to impacts to water quality, the project is expected to adversely affect biological resources. A portion (estimated at between 0.4 and 0.5 ac.) of the access
channel alignment is vegetated by seagrasses, the dominant species being Halodule wrightii (Cuban shoal weed). Seagrass beds provide important habitat and forage for a variety of wildlife species. The loss of seagrass beds will result in a loss of productivity to the entire system that would be difficult to replace.
The 4.72 ac. of wetlands proposed to be filled and the excavation required for the proposed channels (approximately 38 ac.) are productive high marsh and mixed mangrove wetlands which are providing wildlife habitat and water quality benefits. These wetlands have been adversely impacted by the freeze of 1989, but they appear to be recovering well. The proposed mitigation would provide some benefits through exotic removal and increased hydrologic connection to the Indian River. However, these benefits would not be adequate to offset the adverse impacts of the proposed wetland losses for this project.
The project site and the adjacent Pelican Island National Wildlife Refuge are used for nesting and foraging by a variety of species, including little blue heron (Egretta caerulea) (Species of Special Concern (SSC)--Florida
Game and Fresh Water fish Commission (FGFWFC)), reddish egret (E. rufescens) (SSC-FGFWFC), snowy egrets (E. thula) (SSC-FGFWFC), tricolored herons (E. tricolor) (SSC-FGFWFC), brown pelicans (Pelecanus occidentalis)
(SSC-FGFWFC), roseate spoonbills (Ajaja ajaja) (SSC-FGFWFC), least tern (Sterna antillarum) (threatened-FGFWFC), and wood storks (endangered-FGFWFC). The construction of the project and the increased boating activity due to the project would result in the disturbance of those species that use the wetlands in the project area.
The Indian River adjacent to the project site is used by the West Indian Manatee (endangered-FGFWFC). The increased boat traffic would increase the chance of manatee deaths due to boat impact. In addition, the excavation of the access channel through the seagrass beds would decrease the available forage for manatees in the project area.
For the above reasons, this project is also
not clearly in the public interest, as required pursuant to Section 403.918(2), Florida Statutes, because it is expected to:
adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;
adversely affect the fishing or recreational values or marine productivity in the vicinity of the project;
be permanent in nature;
diminish the current condition and relative value of functions being performed by areas affected by the proposed activity.
The applicant has not provided reasonable assurance that the project is clearly in the public interest.
On September 12, 1991, the owner and holder of the mortgage on the Orchid Island development (which includes the real property on which the Petitioner hopes to construct the project at issue in this proceeding) instituted foreclosure proceedings. The circuit judge who presided over the foreclosure proceeding soon thereafter appointed an interim receiver to manage the property until a receiver who would manage the property for the duration of the foreclosure proceeding could be appointed.
THE PROJECT MODIFICATIONS AND FACTS AS TO ESTOPPEL
On October 31, 1991, representatives of Orchid Island Associates met with Respondent's staff to discuss this application. Trudie Bell, the Environmental Specialist assigned to supervise this application, and Douglas MacLaughlin, an attorney employed by Respondent, attended the meeting. Those attending the meeting on behalf of Orchid Island Associates included the interim trustee, the attorney for Orchid Island Associates, and Darrell McQueen, who at all times pertinent to this proceeding was the project engineer. Mr. McQueen was upset that the project was going to be denied and wanted to know what could be done to make it a permittable project. In response to Mr. McQueen, Ms. Bell, without making any promises, suggested the following modifications to the project that might make it permittable: moving the canal more upland, elimination of the boat basin/marina, reducing the depth of the artificial waterway, and increasing the width of the littoral zone.
On November 11, 1991, the representatives of Orchid Island Associates responded to the Respondent's suggested modifications and agreed to make the modifications.
In an effort to design a project that would be acceptable to Respondent, Orchid Island Associates proposed to the Respondent to make certain modifications to the design of the project. Petitioner has agreed to those modifications which include the following:
Elimination of the boat basin and associated 58 dock marina and clubhouse, but with the addition of 18 relatively narrow residential lots, each of which would have a dock on the south end of the waterway. 2/
Reduction of the depth of the artificial waterway to -7 feet NGVD from the proposed
-8 feet NGVD.
Realignment of the artificial waterway as depicted on the sealed drawings submitted to Respondent and dated January 28, 1993.
Increasing the width of the littoral zone to be created along the length of the artificial waterway to 40 feet on the west
side and 10 feet on the east side.
On November 12, 1991, John C. Kurtz was appointed the receiver of the Orchid Island Associates property and remained the receiver until the property was conveyed to Petitioner at a foreclosure sale on July 31, 1993. After it acquired the property, Petitioner employed Mr. Kurtz to manage the subject property. Mr. Kurtz has been active in the project since his appointment as the receiver of the property.
On November 21, 1991, Petitioner met with Respondent's staff, including Ms. Bell, to discuss the modifications. At that meeting, the Respondent's staff reacted favorably to the modifications agreed to by Petitioner. Ms. Bell described the revisions as "excellent" and "a great idea" and stated that the project was "a nice project" and that it looked like the project was heading in the right direction. Ms. Bell also represented that the Respondent would grant the Petitioner extensions of time to allow for a formal revision if the project was deemed permittable. Ms. Bell kept her superiors informed of the status of her review.
On December 11, 1991, Charles Barrowclaugh, an employee of the Respondent, made an inspection of the site and informed representatives of the Petitioner that he had briefed Carol Browner, who was Secretary of the Department of Environmental Regulation, as to the project and the proposed modifications. Mr. Barrowclaugh stated that he believed the project was permittable. Petitioner was encouraged by Mr. Barrowclaugh's comments and by the fact that he would incur the expenses of traveling to the site.
Between December 11, 1991, and November 13, 1992, Petitioner provided information to Respondent pertaining to the revised project. This additional information included a description of the revised plan and a revised schematic drawing, but it did not include detailed drawings of the revised project.
On November 13, 1992, Ms. Bell wrote to Mr. McQueen a letter that stated, in pertinent part, as follows:
The Bureau of Wetland Resource Management has reviewed the revised plan and additional information submitted on September 16. The revised proposal appears to address all of the issues that made the original proposal unpermittable. The detailed 8.5 by 11 inch permitting drawings will have to be revised to reflect the revised proposal and submitted to the Bureau for review. Kelly Custer and Orlando Rivera will be reviewing the project in the future.
Petitioner interpreted that letter to mean that the Respondent intended to permit the project. At the time she wrote the letter of November 13, 1992, Ms. Bell thought the revised project would be permitted.
Petitioner relied on the oral representations made by Respondent's staff and on the November 13, 1992, letter in continuing pursuit of a permit. Absent these encouraging comments by Respondent's staff, Petitioner would have discontinued pursuit of the permit.
Although Petitioner was understandably encouraged by the discussions its representatives had with Respondent's staff, it knew, or should have known, that the favorable comments it was receiving from members of Respondent's staff were preliminary and that additional information would be required and further evaluation of the project would take place. Petitioner's representatives knew that the staff with whom they were having these discussions did not have the authority to approve the application, but that they could only make recommendations to their superiors.
In late 1992, Kevin Pope, an Environmental Specialist employed by Respondent, was assigned as the primary reviewer of the revised project. At the time he became the primary reviewer of the project, Mr. Pope did not make an immediate, independent evaluation of the project, and relied on what other staffers who had been involved in the review told him. Until he conducted his own review of the project, Mr. Pope believed that the project was "clearly permissible". Mr. Pope informed a representative of the Petitioner of that belief and told the representative that he was prepared to start drafting the permit once he received final drawings documenting the modifications to the project. Subsequent to that conversation, Mr. Pope received the drawings he requested.
After he received and reviewed the final drawings, Mr. Pope determined that all issues raised by the denial letter had not been addressed. Among the concerns he had was the fact that the project would dredge into the Indian River to the Intercoastal Waterway and that part of the dredging activity (at the north end of the project) would be in Class II shellfish approved waters. Mr. Pope again contacted the state and federal agencies that had originally commented on the project, described the proposed modifications to the project, and requested comments. Most of the agencies continued to object to the project. On August 5, 1992, Mr. Pope held a meeting with the commenting agencies and with representatives of the Petitioner to discuss the objections to the project. 3/ The agencies provided additional comments after this meeting and most continued to oppose the project.
Mr. Kurtz testified that on June 1, 1993, Stacey Callahan, an attorney employed by Respondent, told him that she was attempting to draft the permit for the project. Ms. Callahan asked for sample wording for a restrictive covenant or for an easement that would limit the number of boats that could use the proposed docks. Subsequent to that inquiry, Petitioner was informed by Mr. Pope that the project would be denied. Petitioner has not made any specific proposal to assure a limitation on the number of boats that will be able to dock in the proposed canal.
In June of 1993, a large number of objections to the project were filed with Respondent by members of the public.
In early July, 1993, Secretary Wetherell responded to those objectors with a letter stating, in part, that the "Department's letter of November 1992 indicating an intent to issue for the project was imminent appears to have been premature."
On September 20, 1993, Mr. Pope informed Petitioner's attorney that the Respondent was not going to change its position that the project, even with the modifications, should be denied. The decision not to permit the modified project was made by Mr. Pope.
The only permit application filed by the Petitioner was the application for the initial permit. No formal amended application that incorporates all of the changes that Petitioner discussed with Respondent's staff was filed.
A total of $74,735 was spent on behalf of the applicant on this project between December 26, 1991, (the date of the meeting with Mr. Barrowclaugh) and July 31, 1993, (the date the property was conveyed to Petitioner). From July 31, 1993, through April of 1994, Petitioner spent an additional $47,488 on the application for this project. The expenditures after July 31, 1993, included engineering costs that were incurred before that date. These figures do not include the costs of this proceeding.
THE REVISED PROJECT
The revised project may be summarily described as follows: Petitioner proposes to construct a canal that will be approximately 6,400 feet long, up to
200 feet wide, and -7 NGVD deep as depicted on drawings that have been submitted into evidence. There will be a littoral zone 40 feet wide on the west side of the canal and a littoral zone 10 feet wide on the east side. A hydrological channel, proposed from the north terminus of the canal to the Intercoastal Waterway to enable a proper flow of water through the canal, will be some 200 feet wide, 70 feet in length, and -3 NGVD. Petitioner proposes to construct a barrier at the north terminus of the canal to prevent manatees and boats from entering the canal from the north and has agreed to maintain that barrier. An access channel, proposed from the south terminus to the Intercoastal Waterway to enable boats access to the canal, will be some 200 feet wide, 700 feet in length, and -7 NGVD. A total of 62 docks are proposed. The project includes a mitigation plan that will be discussed below.
THE REQUESTED VARIANCE
The construction of the hydrological channel would be in Class II conditionally approved shellfish waters. Dredging in Class II conditionally approved shellfish waters is prohibited unless a variance is issued by Respondent that would permit this otherwise prohibited activity. Petitioner's attorney submitted a letter to the Respondent on August 18, 1993, for a variance to construct the channel from the north terminus of the canal to the Intercoastal Waterway. That letter stated, in pertinent part, as follows:
DEP Rule 17-312.080(17) states: "Permits for dredging or filling directly in Class II or Class III waters which are approved for shellfish harvesting by the Department of Natural Resources shall not be issued." This provision is applicable to the pending application by Orchid Island Associates.
Accordingly, we discussed Orchid Island requesting a variance pursuant to Section 403.201, Florida Statutes, and Rule
17-103.100, Florida Administrative Code, as
a means of overcoming this prohibition. Since the dredge and fill application is pending, you indicated it would be appropriate for Orchid Island to ask, during final review
of this application, that the Department also consider a request for a variance pursuant to the above mentioned statute and rule. Please consider this letter that request. . . .
Petitioner did not submit along with its request the fee required by Respondent to process that request. Respondent did not advise Petitioner that it would not process its request without the requisite application fee until the prehearing stipulation was prepared for this proceeding shortly before the formal hearing. There was no evidence that Petitioner attempted to check on the status of its request for a variance or that it expected Respondent to act on the request for a variance independent of its final review of the overall project. As of the time of the formal hearing, Petitioner had not submitted to Respondent the fee that Respondent asserts is required before the request for the variance will be processed. Respondent asserted that position in the prehearing statement that was filed shortly before the formal hearing.
The evidence as to the flow of water through the proposed canal assumed the existence of the hydrological channel from the north terminus of the proposed canal to the Intercoastal Waterway and the existence of the access channel from the south terminus of the proposed canal to the Intercoastal Waterway.
CONSTRUCTION OF THE PROJECT
The revised version of the artificial waterway will be excavated primarily from uplands, but the excavation will require that 3.6 acres of wetlands be filled and 7.1 acres of wetlands be dredged. The direct impact on wetlands will be at least 10.7 acres. The mitigation plan proposes that the berms around the mosquito impoundment will be leveled, the berm ditches will be filled, and certain rotary ditches will be dredged. The amount of wetlands to be impacted by that proposed activity was not established.
The artificial waterway will be constructed utilizing a series of separate construction cells, a rim ditch, and filtration chambers. All excavated material will be disposed of on uplands. The construction system will filter most solids. Turbidity suppression devices will be used to minimize any turbidity associated with the excavation of the access channel at the south terminus and the hydrological channel at the north terminus. Petitioner established that its proposed construction techniques are consistent with best management practices.
The small body of water that is referred to as the former borrow pit in the denial letter of September 12, 1991, is known as Boot Lake. Petitioner proposes to dredge the eastern end of Boot Lake, consisting of an area 800 feet by 180 feet (3.3 acres), to create part of the canal.
The access channel at the south terminus of the canal will be approximately 700 feet in length and will have to be hydraulically excavated in the Indian River to connect the canal to the Intercoastal Waterway. The hydrological channel at the north terminus of the canal will be hydraulically excavated to connect the canal to the Indian River. The connection will require approximately 70 feet of dredging to -3 NGVD, which is the minimum necessary to maintain the proper flow of water through the canal.
HYDROLOGY OF THE CANAL
The artificial waterway will function as a flow-through system driven by a difference in the water surface elevation (the head difference) between the north terminus and the south terminus. The flushing of the artificial waterway far exceeds the Respondent's flushing requirement benchmark, which is a flushing time of four days. If a hypothetical pollutant's concentration is reduced to 10 percent of its initial concentration in four days, the flushing is considered to be acceptable. The flushing time for the system is approximately 2.6 hours, which will produce five total volume replacements per tidal cycle. The predicted flushing of the artificial waterway is quite rapid and energetic. The predominate flow of water in the artificial waterway is from north to south. At times, however, the flow will be from the south to the north.
At the request of the Respondent, Petitioner conducted a tracer dye study within the Indian River at the proposed south terminus of the artificial waterway. No tracer dye study was requested for the north terminus. Although there was some disagreement as to the import of the tracer dye study, it established that pollutants introduced into the Indian River from the canal would be rapidly dispersed in the Indian River.
WATER QUALITY - THE CANAL
The artificial waterway will be classified as Class III waters of the State. Water quality within the artificial waterway will reflect the current water quality in the Indian River. Petitioner has provided reasonable assurances that the water quality within the artificial waterway itself will not violate state standards.
Two potential sources of pollutants to the artificial waterway have been identified. The first source is stormwater runoff through the stormwater management system associated with the upland development. The second is pollution inherent with the docking and operation of large vessels.
Respondent interprets its rules so that discharge of pollutants into the artificial waterway will constitute indirect discharges to the Indian River.
Because of the excellent flushing capacity of the canal, pollutants will not tend to accumulate in the canal. A pollutant entering the canal or a spill of pollutants into the canal will mix very little in the canal, probably less than five percent, so the pollutant will discharge from the canal into the Indian River as a plug. There was a conflict in the evidence as to whether pollutants introduced into the canal will enter the Indian River in measurable quantities. Testimony was elicited from Dr. Roessler, one of Petitioner's experts, that water entering the Indian River from the artificial waterway will not contain pollutants that are either measurably or statistically differentiable from the Indian River itself. That result depends, however, on the amount and the source of the pollutant introduced into the canal. Because of the rapid flushing of the canal, small spills or slowly released discharges
of pollutants are not expected to result in water quality degradation in the Indian River. Since a pollutant introduced into the canal will exit in a plug essentially in the same concentration as it entered the canal, Petitioner has not provided reasonable assurances that large spills or discharges of pollutants from vessels or from other sources will not be discharged into the Indian River in concentrations that can be measured or that such large spills or discharges will not degrade the quality of the Indian River.
Water from the canal will come out of both the north end and the south end of the canal. Some of the plume coming out of the north end may tend to hug the shoreline, with some of the plume reentering the canal when the tides change.
Stormwater runoff contains significant amounts of fecal coliform, sometimes more than raw sewage. The stormwater management system associated with the upland development was permitted by the St. Johns Water Management District. The majority of the system is currently in place and functioning to retain stormwater runoff. The stormwater management system is designed to retain all of the first 4.75 inches of rainfall and most of the first 6.2 inches of rainfall. The design of this system exceeds the requirements imposed by the St. Johns Water Management District, which is that the first 1.5 inches of rainfall be retained. Stormwater management regulations are technology-based treatment criteria. If a system meets the retention requirement, it is presumed that no water quality will be violated by discharges through the system. Petitioner established that the stormwater management system was designed and constructed to retain at least three times the amount of rainfall required by the St. Johns Water Management District.
Construction of the proposed canal will intercept two stormwater discharge pipes from the upland golf course and residential development. There was no evidence that the St. Johns Water Management System has reviewed this change in the system that has been permitted. The proposed change in where the outflow will be discharged could be significant since the discharge pipes are presently designed to discharge overflows from the system into wetland areas that provided additional natural treatment of the overflow before the overflow reaches the Indian River. With this change the overflow will be discharged during extraordinary storm events into the canal and thereafter into the Indian River without additional natural treatment. Because there will be modifications to the stormwater system the approval of that system by the St. Johns Water Management District should not be relied upon as providing reasonable assurances that no water quality violations will be caused by stormwater discharge. If this project is to be permitted, Petitioner should be required as a condition precedent to the issuance of the permit to have the proposed changes to the system reviewed by the St. Johns Water Management District and it should be required to obtain an amendment to the stormwater management system permit that would authorize the proposed changes.
The project contemplates the construction of 62 docks. The size and the docking capacity of each dock has not been established. While Petitioner presented testimony that it is likely that only 50 percent of the docks will likely be used at any one time, that testimony is considered to be speculative. The number and size of boats that can or will be docked in the canal at any one time or on a regular basis is unknown. It is likely that each dock will have docking capacity for at least one vessel up to 60 feet in length and for a smaller vessel.
The manner in which these docks will be constructed was not established. Chromatic copper arsenic, which is frequently used to coat docks and anti-fouling paints containing heavy metals used on boats are sources of contamination to shellfishing. Oils and greases from boats contain hydrocarbons which can adversely impact shellfish. These contaminants can have adverse impacts to shellfish at very low concentrations.
Petitioner has agreed to prohibit live-aboard vessels and to prohibit the fueling and maintenance of vessels within the artificial waterway. Sewage containing fecal coliform dumped or spilled from boats or from stormwater discharge is a primary source of contamination for shellfishing waters.
It is the practice of the Respondent's Shellfish Environmental Assessment Section to close waters to shellfishing in the vicinity of marinas, mainly due to potential contamination from untreated sewage. The Shellfish Environmental Assessment Section does not recommend the immediate closing of shellfishing waters when a project involves single family docks associated with a residence because it assumes people will use bathroom facilities in the house instead of on the boat. The Respondent does not have reasonable assurances that there will be houses associated with each of the 50 foot lots designated at the southern end of the canal. If a proposed facility has boat docks, but does not have houses associated with each dock, the Shellfish Environmental Assessment Section would recommend closure of shellfishing in the vicinity of the facility. The Shellfish Environmental Assessment Section would not recommend immediate closure of the shellfishing waters in the vicinity of this proposed project because it has assumed that each of the proposed docks will be associated with a house. If this project is to be permitted, reasonable assurances should be required that a residence will be constructed before or contemporaneously with the construction of a dock.
The modifications made by Petitioner to the project will reduce the danger of pollutants from vessels in the artificial waterway. However, because the number and the size of the vessels that will be using the artificial waterway was not established, the extent of pollutants from vessels is unknown. Consequently, it is concluded that Petitioner did not provide reasonable assurances that measurable pollutants would not indirectly discharge into the Indian River from the canal.
IMPACT ON WETLANDS
Of the approximately 10.70 acres of wetlands that will be directly impacted by the proposed waterway, 4.10 acres are predominately impacted by invasive exotic (non-native) plants, 4.27 acres are somewhat impacted by exotic plants, and 2.23 acres are not impacted by exotic plants. The exotic plants found at the project site are primarily Australian Pine and Brazilian Pepper.
The mitigation plan, which will be discussed below, proposes that the berms constructed around the mosquito impoundment area be removed and the rim ditches that abut the berms be filled. The amount of wetlands to be impacted by that activity was not established. The project contemplates that rotary ditches will be constructed at different places in the mosquito impoundment area after the berms are removed and the berm ditches filled. The areas to be impacted by the construction of the rotary ditches were not identified.
The Petitioner proposes to dredge out the entire east end of Boot Lake for use as part of the canal. This area will be approximately 800 feet by 180 feet and will be 3.3 acres. Boot Lake is a fairly healthy biological system,
about the same as the Indian River. It was found to contain 22 species of fish and seven species of birds, with brown pelican and the great blue heron dominant. Eleven species of crustacean, six species of mollusks, 24 vermes 4/ and one coelenterate were collected from the lake. Replacement of the eastern portion of Boot Lake with the canal will adversely impact those species.
Between the Indian River and the proposed waterway is a mosquito impoundment constructed in the early 1960s. The mosquito impoundment and associated berms total approximately 105 acres. The exact area was not established since there is an unresolved issue as to the exact location of the mean high water line. 5/ The impoundment is breached in several locations and no longer functions efficiently as a mosquito impoundment.
IMPACTS ON SEAGRASSES
The excavation of the access channel from the south terminus to the Intercoastal Waterway will involve the removal of approximately 2500 square feet of a healthy, productive seagrass bed. Seagrasses are beneficial for wildlife habitat as they provide a substrate for algae and diatoms. Seagrasses are a direct food source for manatees and other species, and provide shelter and protection for fish. Seagrasses observed in this area where grasses will be eliminated are Halodule writtii, Syringodium filiforme, and Halophia johnsonii. Halophia, one of the identified species in this seagrass bed, is designated by the Florida Natural Areas Inventory as a rare and endangered species. Besides the seagrasses actually eliminated where the channel is to be constructed, other nearby seagrasses are also likely to be affected. The sides of the channel are likely to slough to some degree, which would adversely impact the seagrasses abutting the channel. The operation of power boats, even at slow speeds, will cause turbidity that will likely adversely impact seagrasses. Maintenance dredging, which will be required every few years, will cause turbidity that will likely adversely impact seagrasses.
There are presently thousands of acres of seagrasses located within the Indian River. There has been a historical decline in seagrass in the Indian River Lagoon. Since 1950, there has been a 30 percent loss of seagrasses and seagrass habitat.
IMPACTS ON SHELLFISH
The proposed project will have an adverse impact on shellfish and shellfishing. At a minimum, the project will require dredging in a shellfishing area. The hydrological channel that will be dredged to connect the north terminus of the canal with the Intercoastal Waterway will be located in Class II waters that have been conditionally approved for shellfishing.
Both commercial and recreational shellfishing occur in the Indian River adjacent to the project site. The predominate flow of water through the canal will be southerly. There will be, however, a predictable northerly flow of waters that will cause waters from the proposed canal and any associated contaminants contained in those waters to flow from the north terminus of the canal into the Class II waters that have been conditionally approved for shellfishing.
The proposed project may introduce a significant amount of freshwater into the adjoining shellfishing waters of Indian River, primarily in the vicinity of the north terminus of the canal.
Any additional freshwater discharges to shellfishing waters is a concern because fecal coliform bacteria survive longer in freshwater than saltwater. Three likely sources of freshwater that would be added by this project to the Indian River in the conditionally approved shellfishing area were identified by Respondent. First, the proposed canal appears to be intersecting near its north terminus with a sulphur spring or artesian well which produces fresh water with a high sulphur content. Fresh water will likely be introduced into the canal from this source and discharged into the shellfishing waters when the tidal flow becomes northward. Second, freshwater may be introduced into the canal from the overflow pipes from the surface water management system. This source of freshwater would not be significant. Third, additional freshwater may enter the area after the berms around the mosquito impoundment area are removed as contemplated by the mitigation plan. The extent of this source of freshwater was not established.
If this project is permitted, the Shellfish Environmental Assessment Section will monitor this area for water quality to determine if the area will have to be closed for shellfishing. This additional monitoring, for which Respondent will pay, will be required because of the potential adverse impacts this project presents to shellfishing.
Because of evidence of deteriorating water quality, the Shellfish Environmental Assessment Section is recommending that the shellfishing waters adjacent to the site be reclassified from "conditionally approved" to "conditionally restricted". In "conditionally restricted" waters, shellfish can still be harvested, but the harvested shellfish have to be placed in designated waters or in on-land facilities so the shellfish can cleanse themselves of fecal coliform before going to market. The conditions in the area of the proposed project are not yet bad enough to prohibit shellfishing.
IMPACT ON MANATEES
There are approximately 2,000 manatees living in Florida waters, with approximately 1,000 living on the east coast and approximately 1,000 living on the west coast. The manatee is an endangered species, and the long-term survival of the species is not secure. The Indian River in the area of the proposed project provides good habitat for manatees and is a major travel corridor for several hundred manatees. Indian River County is one of 13 key counties that has been designated by the Governor and Cabinet to address special manatee concerns. Manatees traveling back and forth in this area usually use the channel of the Intercoastal Waterway because it is deeper and allows manatees an easier travel route.
Speed zones for boat traffic are an effective manatee protection mechanism. The artificial waterway will be posted as an idle speed zone. The area where the access channel connecting the south terminus of the canal with the Intercoastal Waterway will be dredged is presently designated as a slow speed zone and the access channel itself will be marked. Petitioner has agreed to implement Respondent's standard manatee conditions.
Seagrasses are an important source of food for manatees. The project contemplates that 0.05 acres of seagrass will be dredged, but that Spartina will be planted in parts of the littoral zone. While manatees eat Spartina to some extent, they prefer seagrasses. Since there are thousands of acres of seagrass located in the Indian River, it is concluded that the elimination of 0.05 acres of seagrass associated with this project is negligible and will not adversely affect manatees.
A barrier to navigation will be maintained at the north terminus of the waterway to preclude boat access and limit access to the waterway by manatees. Manatees would be unable to enter or leave the artificial waterway via the north terminus. The artificial waterway will not attract manatees and should not, in and of itself, adversely impact manatees.
The main adverse impact to manatees from this proposed project is the threat of collisions by boats that leave the canal and enter the waters of the Indian River, including the Intercoastal Waterway. At least ten West Indian manatees have been killed by boats in Indian River County since 1981. Even with the speed limits, the increase in boating in this area will present an increased risk to manatees.
IMPACT ON BIRDS
No species of wading birds, including those listed as endangered or threatened, nests or roosts within the project site.
The project site is not currently heavily utilized by wading birds, but several species of wading birds were observed foraging for food in Boot Lake. It is reasonable to expect that dredging of Boot Lake and the increased boat traffic will have an adverse impact on birds. Diving birds, such as the brown pelican and least tern, will benefit from the increased open waterway created by the canal, which should serve as a feeding habitat.
Wading birds congregate and nest in rookeries. The area of the proposed project is within the foraging range of 14 active rookeries, and it is reasonable to expect that those rookeries will be disturbed by the increased boat use or human activity that the project will bring to this area. Officials of Pelican Island National Wildlife Refuge have observed such disturbances and are opposed to this project. The pressure of human and boating activities on bird rookeries in the Pelican Island National Wildlife Refuge, including human intrusion into buffer zones established to protect the birds, has resulted in a continuing decline of the bird population since 1960. When disturbed by boats or by humans, the parent wading bird will often leave the nest, which exposes the eggs or the chicks to attack by predators or to overexposure to sunlight. Boaters will often cause wading birds who are foraging for food to flush, which disturbs their search for food. Certain species of wading birds are flushed more frequently and for longer distances when flushed from narrow tidal creeks in Spartina marshes (a habitat similar to the proposed canal) than in open shoreline habitat.
IMPACT ON FISH
The existing ditches inside the mosquito impoundment berms presently provide a habitat similar to that of a tidal creek for a variety of fish, including juvenile snook, tarpon, red drum, black drum, lady fish, and mullet. The proposed project will result in the filling of these habitats and impoundments. As a consequence of that activity, these species of fish will be adversely impacted by the project. Although Petitioner proposes to construct certain rotary ditches that it asserts would provide a habitat similar to that provided by the existing ditches, Petitioner has not submitted any plans or drawings or other specific information concerning these rotary ditches and has not provided reasonable assurances that these proposed rotary will replace the habitat that will be eliminated by the filling of the existing ditches.
CUMULATIVE IMPACTS
Other projects have been permitted on the Indian River north and south of the proposed project that have increased boat traffic on the Indian River in the vicinity of the project.
The Respondent has not identified any similar projects which have been permitted in the vicinity within the last five years. The only similar application pending before the Respondent in the vicinity of the project is for two docks north of the project site. Although Respondent established that boat traffic on the Indian River has increased, this project is unique in scope and design, and it is concluded that Petitioner has given reasonable assurances that no negative cumulative impacts will be associated with the project.
OTHER PERMITTING CRITERIA
The parties stipulated to the following facts that pertain to permitting criteria:
The project will not adversely affect navigation or the flow of water.
The project will not cause harmful erosion or shoaling.
The project will be of a permanent nature.
The project will not adversely affect any significant historical or archaeological resources.
The project will not adversely affect the property of others.
The proposed waterway will be located almost entirely on private property in areas not currently utilized for fishing or other recreational activities. Except for the impacts on shellfishing, birds, and fish discussed above, the project will not adversely affect the fishing or recreational values within the vicinity of the project.
THE MITIGATION PLAN
Petitioner has taken all reasonable steps to minimize the adverse impacts associated with the type project it is proposing. Because there will be adverse impacts to an Outstanding Florida Water, the project can be permitted only if it is determined that the mitigation plan offsets the adverse impacts and makes the project clearly in the public interest. Petitioner's mitigation plan was contained in the original application and was revised between October 1991 and January 1992. Respondent considered the current mitigation plan in its review of this project.
The current mitigation plan consists of the creation of wetlands, the enhancement of wetlands, and the preservation and donation of wetlands owned by Petitioner within the mosquito impoundment. The estimated cost of creation and enhancement of the mitigation plan is $600,000.
Petitioner proposes to create approximately 14 acres of wetlands by removing the mosquito impoundment berms and converting other uplands within the impoundment to wetlands. These areas will be revegetated with various wetland plant species including red, black, and white mangroves.
In addition, Petitioner proposes to create a forty foot wide intertidal littoral zone along the entire length of the western side of the artificial waterway and a ten foot wide littoral zone along the entire eastern side of the artificial waterway. Approximately three acres of the littoral zone will be created from uplands. The littoral zone will be revegetated with 80 percent cord grass and 20 percent red mangrove.
Petitioner proposes to implement an open marsh mosquito control management program consisting of the elimination of natural accumulations of water in low lying areas within the impoundment by rotary ditching small channels to allow these areas to drain and to allow predator fish access to the areas.
Petitioner will remove exotic plant species throughout the impoundment and will revegetate with native species such as red, black, and white mangroves.
Petitioner proposes to monitor the project area to assure that exotic plant species do not re-colonize.
The mosquito impoundment area and the associated berms is estimated as being approximately 105 acres. Because of the difficulty in determining the mean high water line and because of the number of breaches in the berms, the precise acreage within the impoundment area that is not currently sovereign lands was not established. If accurately surveyed, it is possible that the amount of acreage within the impoundment owned by Petitioner may be determined to be up to 10 percent less than is currently estimated. For the purposes of this proceeding, it is found that 105 acres is a reasonable estimate of the area of the impoundment owned by Petitioner. After completion of the enhancement program, Petitioner proposes to donate all the property it owns within the impoundment to the State of Florida.
Petitioner asserts that it would have the right to construct single family docks from its property directly into the Indian River if this project is not permitted and that these docks would not be subject to Respondent's permitting jurisdiction. The construction of such docks would have an adverse impact on manatees and seagrasses. As part of its mitigation plan, Petitioner offers to waive its right to construct single family docks from its property directly into the Indian River.
EVALUATION OF THE MITIGATION PLAN
The wetland in the existing impoundment area is presently a good biological system that contains a good diversity of plants and animals. While Petitioner's proposals will enhance this area, the evaluation of that enhancement should take into consideration the quality of the existing system.
There are at least three existing breaches in the berm system.
Through these breaches there is some tidal influences and the export of detrital material. Because of the relatively isolated nature of the mosquito impoundment, it currently contributes little to the productivity of the Indian River. The removal of the berm system will result in greater tidal influence in the impoundment area. As a consequence, much of the leaf litter from mangroves within the impoundment that presently accumulates on site would be exported as detrital material to the Indian River, which will add material to the food chain. It is expected that increased tidal influence will also result in an
improvement in the dissolved oxygen levels within the impoundment. The reestablishment of tidal influence within the impoundment area will increase habitat for fish, shrimp, and crabs, and therefore benefit the Indian River.
Removal of the impoundment berms to reestablish tidal influences within the impoundment area will increase and improve feeding and forage habitat for wading birds. Consequently, wading birds that nest in the vicinity of the project will be benefited. Increased tidal influence will likely result in better growth for mangroves which would create roosting sites for wading birds where none presently exist.
Currently, Australian pines are the dominate species in areas within the impoundment area. Other areas of the impoundment are heavily populated by Brazilian pepper. Australian pines and Brazilian peppers do not serve as food sources for any native wildlife and have the potential to crowd out native plant species such as mangroves. If not removed, the potential exists for Brazilian pepper to become the dominate plant species. Removal of exotics and replanting with native species is a benefit to the Indian River system. With an appropriate monitoring plan, the exotic removal should be successful. If the project is permitted, the implementation of an appropriate monitoring plan should be a condition of the permit.
Because of widespread mosquito control activities, the high marsh ecosystem is now rare in the Indian River system. The restoration of the impoundment area to an area of high marsh would be of benefit to the Indian River ecosystem. Prior to alteration by man, the mosquito impoundment was a high marsh ecosystem consisting primarily of black and white mangroves over an understory of succulent plants. There was a conflict in the evidence as to whether the Petitioner's proposals would result in the impoundment area returning to a high marsh area. While the impoundment area will be enhanced by the Petitioner's proposals, it is found that whether the area will be returned to a high marsh system is speculative.
The mosquito impoundment is breached in various locations and, as a consequence, the impoundment is not functioning to control mosquitoes as it was originally designed. The current primary mechanism for mosquito control within the breached mosquito impoundment is aerial spraying of insecticides. The proposed removal of the existing berms will not adversely affect mosquito control and may positively affect mosquito control due to the increased accessibility of the impoundment by natural predators such as fish. This open marsh management plan is an effective means of controlling mosquitoes.
The wetland creation proposed by Petitioner should have a high rate of success. Petitioner has agreed to implement a suitable monitoring plan to further guarantee the success of the proposal. If the project is permitted, the implementation of a suitable monitoring plan should be a condition of the permit.
Scraping down the mosquito berms will create more wetlands, but the earth from the berms will be placed in the adjacent ditches, which presently serve as valuable tidal creek type habitat. Therefore, the mitigation itself will have some adverse impact.
Petitioner's unspecified proposal to put in some rotary ditches to offset the loss of tidal creek habitat is inadequate in that there has been no specific proposal as to the location, size, shape, configuration, or acreage of the proposed rotary ditches.
While planting of the littoral zones on the edges of the canal with Spartina provides some biological value, the growth of Spartina on the ten foot ledge on the east side will be impacted by boats and docks. The littoral zones will likely perform valuable wetland functions if properly planted and monitored and will likely become a productive wetland system that will provide habitat for wading birds. If the project is permitted, the Petitioner should be required to monitor the Spartina planting to ensure its successful growth.
Even if the creation of the 13.9 acres of wetlands is successful, it will take years to become a mature biological system similar to the wetlands they are to replace. This time lag should be taken into account when evaluating the mitigation plan.
There are adverse impacts from this proposed project that the mitigation plan does not offset. The mitigation plan does not offset the elimination of seagrasses, the loss of the Boot Lake habitat, the potential adverse impacts to shellfish and shellfishing, or the impacts to manatees.
It is likely that property owners wishing to construct docks directly into the Indian River would have to get a permit from Respondent to gain access to the parts of the property where these docks could be constructed. Any proposal to extend docks into the Pelican Island National Wildlife Refuge would likely be prevented by the U.S. Fish and Wildlife Service. Whether such docks would, or could, be constructed is speculative, and this portion of the mitigation plan should be accorded little weight.
As part of its mitigation plan, Petitioner proposes to donate approximately 105 acres to the State of Florida. This is considered to be a favorable aspect of the mitigation plan.
The central issue in this proceeding is whether the mitigation plan offsets the negative impacts of this project so that the project becomes "clearly in the public interest." This issue is resolved by finding that even when the mitigation plan and the conditions that are recommended herein are considered, this project is "not clearly in the public interest."
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.
Section 403.918, Florida Statutes, provides the following permitting criteria pertinent to this proceeding:
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 criteria for wetlands within its jurisdiction, which criteria give appropriate recognition to the water quality of such wetlands in their natural state.
A permit may not be issued under ss. 403.91-403.929 unless the applicant provides the department with reasonable
assurances that the project is not contrary to the public interest. However, for a project which significantly degrades or is within an Outstanding Florida Water, as provided by department rule, the applicant must provide reasonable assurance that the project will be clearly in the public interest.
In determining whether a project is not contrary to the public interest, or is clearly in the public interest, the department shall consider and balance the following criteria:
Whether the project will adversely affect the public health, safety, or welfare or the property of others;
Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;
Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project;
Whether the project will be of a temporary or permanent nature;
Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and
The current condition and relative value of functions being performed by areas affected by the proposed activity.
Petitioner asserts that Respondent is estopped to deny the application because of the representations of its staff and its reliance on those representations to its detriment. To prove estoppel, the following elements must be established: 1) a representation as to a material fact that is contrary to a later asserted position; 2) reliance on that representation; 3) a change in position detrimental to the party claiming estoppel, caused by a misrepresentation and reliance thereon. See, State Department of Revenue v. Anderson, 203 So. 2d 397 (Fla. 1981). There must be some positive act on the part of some officer of the state upon which the aggrieved party had the right to rely. Ogden v. State Department of Transportation, 601 So.2d 1300 (Fla. 3rd DCA 1992) and Greenhut Construction Co. v. Knott, 247 So.2d 517 (Fla. 1st DCA 1971).
The doctrine of estoppel against a state agency should be applied only in rare occasions and under exceptional circumstances. The encouraging comments made by Respondent's staff were not representations as to a material fact because none of these staffers had the authority to grant the application, a fact known to the Petitioner. The decision of the Petitioner to continue to pursue the application was a business decision that was undoubtedly influenced
by these favorable comments, but Petitioner knew, or should have known, that these favorable comments did not constitute a commitment to grant the application if certain modifications were made. Consequently, it is concluded that Petitioner's argument that Respondent is estopped to deny this project should be rejected.
An essential element of the design of the project is the hydrological channel at the north terminus of the canal that would be dredged in conditionally approved shellfish waters. Petitioner argues in the alternative that the variance should be granted.
First, it contends that it is entitled to a variance pursuant to Section 120.60(2), Florida Statutes, because Respondent did not timely act on its request for a variance. Section 120.60(2), Florida Statutes, provides as follows:
(2) When an application for a license is made as required by law, the agency shall conduct the proceedings required with reasonable dispatch and with due regard to the rights and privileges of all affected parties or aggrieved persons. Within 30 days after receipt of an application for a license, the agency shall examine the application, notify the applicant of any apparent errors or omissions, and request any additional information. Failure to correct an error or omission or to supply additional information shall not be grounds for denial of the license unless the agency timely notified the applicant within this 30-day period. . . . Every application for license shall be approved or denied within
90 days after receipt of the original application or receipt of the additional information or correction of errors or omissions. . . . Any application for a license which is not approved or denied within the 90-day or shorter time period
. . . shall be deemed approved . . . and the license shall be issued.
In the alternative, Petitioner argues that it is entitled to a variance on the merits. The question of whether a variance should be issued for the dredging of the north hydrological channel has been at issue since the application was first filed. The canal Petitioner proposes to construct is dependent on the hydrological channel for the proper flow of water through the canal. Without such a variance, that hydrological channel cannot be dredged in these conditionally approved shellfish waters. Although Petitioner formally raised that issue by letter dated August 18, 1993, it is clear that Petitioner was requesting the variance as an integral part of the application which the Respondent had extensively reviewed and which it proposes to deny. The request for a variance under the circumstances of this case is not an application for a license or permit within the meaning of Section 120.60(2), Florida Statutes, since it is not an application that can be reviewed separately or distinctly
from the underlying application. Consequently, it is concluded that Petitioner is not entitled to a default variance pursuant to Section 120.60(2), Florida Statute.
Respondent's contention that the request for a variance should not be considered because Petitioner did not timely file an application fee is likewise rejected. The request for variance is properly considered to be a part of the original application and no separate application fee should be required. Even if the request for a variance is considered to be a separate application, Respondent has waived its right to charge a separate fee by failing to timely notify Petitioner within 30 days of that deficiency as required by Section 120.60(2), Florida Statutes.
It is concluded that whether the variance should be issued is properly at issue in this proceeding and that the issue should be resolved by concluding that the request for the variance should be denied on the merits. Petitioner established that in deciding whether to grant a variance for dredge and fill activities in conditionally approved shellfish waters, Respondent routinely relies on the determination by the Shellfish Environmental Assessment Section. Respondent routinely grants a variance if the proposed activity is not expected to result in closure of shellfish waters, if the project will not otherwise negatively impact shellfish, and if the project is otherwise permittable. While it was established that the shellfish areas will not be immediately closed, Respondent established that the project will likely have an adverse impact on these shellfish waters that have deteriorated in quality over the last few years and that additional monitoring of these waters will be required if the project is constructed. Respondent has a rational basis for denying the requested variance on the merits. Consequently, it is concluded that Petitioner has failed to establish its entitlement to the variance on the merits.
Without the variance to construct the hydrological channel, the conclusion is inescapable that the modified application for this project should be denied.
The modified application should be denied even if the variance to construct the hydrological channel is granted. Specific findings of fact have been made as to the adverse impacts of this project and as to the mitigation plan that Petitioner proposes to offset those adverse impacts. Recommendations have been made as to certain conditions that should be incorporated should the project be permitted. It is concluded that Petitioner failed to establish that this project is clearly in the public interest, even when this mitigation plan and the recommended conditions are considered. Consequently, it is concluded that the permit should be denied.
There was no evidence as to changes to the proposed project that would make it permittable.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order that adopts the
findings of fact and conclusions of law contained herein and which denies the
modified application for the subject project.
DONE AND ENTERED this 31st day of August 1994, in Tallahassee, Leon County, Florida.
CLAUDE B. ARRINGTON
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 31st day of August, 1994.
ENDNOTES
1/ This borrow pit is known as Boot Lake.
2/ None of the residential lots have been platted. It was contemplated that the 44 upper lots would have between 150 to 200 feet of canal frontage. Each of the 18 additional lots would have approximately 50 feet of canal frontage.
Likewise, the planned size and configuration of the docks were not established, nor was the method by which the construction would take place. If this project is permitted, the docks would not be subject to Respondent's permitting jurisdiction. These 18 docks were to be constructed south of and in addition to the 44 docks that were part of the original application and remain a part of the revised project.
3/ The record is not clear what agencies Mr. Pope contacted or the precise objections those agencies raised. Likewise, it was not established who attended this meeting.
4/ According to Webster's Unabridged Dictionary, a vermes is a classification of invertebrates that is no longer used. This finding was proposed by Respondent based on a report filed by Dr. Roessler, one of Petitioner's experts.
5/ The dispute as to the exact acreage is not considered to be a significant issue, since it was established that 105 acres is a reasonable estimate of the acreage in the impoundment area.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6982
The following rulings are made as to the proposed findings of fact submitted by the Petitioner.
The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, 24, 25, 26, 27, 28, 29, 30, 32, 34, 36, 37, 38, 39, 40, 41, 42, 45, 46, 47, 48, 49, 50, 51, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 91, 92, 93, 94, 95, 97, 98, 99, 100, 101, 102, 103, 104, 105, 107, 109, 110, 111, 112, 114, and 115 are adopted in material part by the Recommended Order.
The proposed findings of fact in paragraphs 21 and 31 are adopted in part by the Recommended Order, but are rejected to the extent they are contrary to the conclusions reached.
The proposed findings of fact in paragraphs 33 and 52 are adopted in part by the Recommended Order, but are rejected to the extent they are contrary to the findings made.
The proposed findings of fact in paragraphs 35 and 116 are rejected as being contrary to the findings made and to the conclusions reached.
5 The proposed findings of fact in paragraph 43 and 44 are adopted in part by the Recommended Order, but are rejected to the extent they are contrary to the findings made and to the conclusions reached.
The proposed findings of fact in paragraph 66 are rejected since it is unclear what Petitioner considers to be a secondary impact.
The proposed findings of fact in paragraph 96 are rejected as being contrary to the conclusions reached after considering all evidence presented in this proceeding.
The proposed findings of fact in paragraph 106 are adopted in part by the Recommended Order, but are rejected to the extent they are unnecessary to the conclusions reached.
The proposed findings of fact in paragraphs 108, 113, 117, and 118 are rejected as being unnecessary to the conclusions reached.
The following rulings are made as to the proposed findings of fact submitted by the Respondent.
The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 26, 27, 28, 29, 30, 33, 34, 35, 36, 37, 38, 40, 41, 44, 45, 46, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 73, 74, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 89, 91, 92, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 115, 116, 117, 118, 119, 120, 121, 122, 123, and 124 are adopted in material part by the Recommended Order.
The proposed findings of fact in paragraphs 9, 10, 25, 31, 32, 39, 43, 47, 51, 75, 88, and 90 are rejected as being subordinate to the findings made.
The proposed findings of fact in paragraph 42 are adopted in part by the Recommended Order and are subordinate in part to the findings made.
The proposed findings of fact in paragraphs 48 and 49 are rejected as being unnecessary to the conclusions reached since the proposed policy is not in effect.
The proposed findings of fact in paragraph 50 are adopted in part by the Recommended Order and are subordinate in part to the findings made that the docking capacity is unknown.
The proposed findings of fact in paragraph 65 are rejected as being contrary to the findings made.
The proposed findings of fact in paragraphs 67, 68, 69, 70, 71, and 72 are subordinate to the findings made that there has been an increase in boat traffic in the vicinity of the project and that there has been a deterioration of water quality in the shellfishing area.
The proposed findings of fact in paragraph 93 are rejected since it was determined that 105 acres was a reasonable estimate of the impoundment area.
The proposed findings of fact in paragraph 114 and 126 are adopted in part by the Recommended Order, but are rejected in part as being unnecessary to the conclusions reached.
The proposed findings of fact in paragraph 125 are rejected as being unsubstantiated by the evidence or as being unnecessary to the conclusions reached.
COPIES FURNISHED:
Joseph W. Landers, Jr., Esquire John T. Lavia, III, Esquire LANDERS & PARSONS
Post Office Box 271 Tallahassee, Florida 32302
Douglas MacLaughlin, Esquire John Chaves, Esquire
Department of Environmental Protection 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Kenneth Plante, 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 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
ALDEN POND, INC.,
Petitioner,
OGC CASE NO. 91-1960
vs. DOAH CASE NO. 93-6982
DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Respondent.
/
FINAL ORDER
On August 31, 1994, a Hearing Officer with the Division of Administrative Hearings (hereafter "DOAH"), submitted his Recommended Order to the Respondent, STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION (formerly Department of
Environmental Regulation) (hereafter "Department"), and to the Petitioner, ALDEN POND, INC. (hereafter "Alden Pond"). A copy of the Recommended Order is attached hereto as Exhibit A.
The Department timely filed its Exceptions to the Recommended Order on September 13, 1994. No exceptions or responses to the Department's exceptions were filed by Alden Pond. The matter is now before the Secretary of the Department for final agency action.
Background
On February 21, 1990, Orchid Island Associates filed application number 311765419 with the Department seeking a permit to construct a boat basin and an access channel on the Indian River near the Town of Orchid in Indian River County. (Petitioner's Ex. 10) Alden Pond is the successor in interest to Orchid Island Associates. The portion of the Indian River where the project site is located is within the Indian River Aquatic Preserve, which is designated an Outstanding Florida Water. The project site is adjacent to Class II Waters approved for shellfish harvesting. The project site is also adjacent to the Pelican Island National Wildlife Refuge, 1/ which is an aquatic preserve and is also designated as an Outstanding Florida Water.
On September 12, 1991, the Department issued a notice of intent to deny the requested permit. (Petitioner's Ex. 5) Among the reasons given by the Department for the intent to deny were existing violations of dissolved oxygen levels in the ambient waters of the Indian River, and the potential for further degradation of water quality due to pollutant loading from the boats docked at the proposed 58 boat slips. In addition, the notice of intent contained a determination by the Department that the project is not clearly in the public interest in that it was expected to adversely affect the conservation of fish
and wildlife, and fishing or recreational values or marine productivity in the vicinity and would diminish the current condition and relative value of functions being performed by areas affected by the proposed activity.
Subsequent contacts and communication between representatives of Alden Pond and the Department resulted in substantial revisions being made to the project in an effort to make it acceptable to the Department. By letter from its attorney dated August 18, 1993, Alden Pond also made a formal request for a variance from the Department rule requirement prohibiting the issuance or dredge and fill permits in Class II waters which are approved for shellfish harvesting. On September 30, 1993, the Department advised Alden Pond's attorney that the project, even with the proposed modifications, was not permittable.
Alden Pond then filed a petition challenging the Department's notice of intent to deny the permit and requesting a formal administrative hearing. The petition was forwarded to DOAH and a formal hearing was held before DOAH Hearing Officer, Claude B. Arrington (hereafter "Hearing Officer"), on April 26-29, 1994. Proposed Recommended Orders were submitted by both parties after the conclusion of the hearing. The Hearing Officer ultimately entered a Recommended Order on September 31, 1994, concluding that Alden Pond had not established its entitlement to the requested variance or the requested permit. The Hearing Officer recommended that the Department enter a Final Order denying the modified application for the proposed project.
Rulings on Department's Exceptions
Preface
The Department filed its Exceptions to the Recommended Order disputing portions of the Hearing Officer's conclusions of law, but not taking issue with the Hearing Officer's ultimate recommendation that a final order be entered denying Alden Pond's requested dredge and fill permit. As a preface to my rulings on the Department's exceptions, it is appropriate to comment on the standards of review imposed by law on an agency in reviewing recommended orders submitted by DOAH hearing officers.
Under Section 120.57(1)(b)10, Florida Statutes, the agency may not reject or modify findings of fact made by a 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. However, the agency head is free to exercise his or her judgment and reject or modify the hearing officer's conclusions of law in the agency final order. 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); Alles v. Dept. of Professional Regulation, 423 So.2d 624 (Fla. 5th DCA 1982).
First Exception
In the first exception, the Department takes issue with the Hearing Officer's conclusion of law in paragraph 112 of the Recommended Order that Alden Pond's "request for variance is properly considered to be a part of the original application and no separate application fee should be required." The Department contends in this exception that the processing of an application for a variance is distinctly different and separate from the processing of an application for a dredge and fill permit. Consequently, the Department asserts that the variance application fee imposed by Rule 62-4.050(4)(d)6, Florida Administrative Code,
2/ is not eliminated merely because the proposed activity necessitating the variance application is also the subject of a pending application for a related dredge and fill permit. This contention of the Department appears to be supported by the controlling law of Florida.
Processing fees for dredge and fill permits are authorized by Section 403.921(2), Florida Statutes, 3/ and are prescribed in Rule 17-4.050(4)(d)1-5, Florida Administrative Code. With respect to applications for variances, however, processing fees are authorized by Section 403.201(4), Florida Statutes, and are prescribed in Rule 62-4.050(4)(d)6, Florida Administrative Code. There is no language in any of the above cited statutes or rules waiving the variance processing fees set forth in Rule 62-4.050(4)(d)6, Florida Administrative Code, where the applicants have also filed related dredge and fill applications pertaining to the same proposed project. Furthermore, there are no known decisions of the appellate courts of this state holding that the Department is either required or authorized to waive the variance processing fee merely because the applicant has filed a related dredge and fill application.
The Hearing Officer also concluded in paragraph 112 of the Recommended Order that the Department "has waived its right to charge a separate fee by failing to timely notify Petitioner within 30 days of that deficiency as required by Section 120.60(2), Florida Statutes." However, the Hearing Officer had previously concluded in paragraph 111 of the Recommended Order that the "request for a variance under the circumstances of this case is not an application within the meaning of Section 120.60(2), Florida Statutes." As discussed in more detail in the succeeding ruling on the Department's second exception, the Hearing Officer's ultimate conclusion that Alden Pond's application for variance is not governed by Section 120.60(2) is adopted in this Final Order on grounds other than that cited in the Recommended Order. Thus, the Hearing Officer's reliance on Section 120.60(2) as authority to support his conclusion that the Department had waived its right to charge a separate processing fee for the variance request is misplaced.
In any event, I conclude that the Department is estopped under the circumstances of this case from asserting Alden Pond's failure to pay a separate variance processing fee as a bar to the consideration and disposition of the variance issue on its merits. Rule 62-103.100(1), Florida Administrative Code, 4/ provides in part that if "the Department determines the [variance] petition to be incomplete, the petitioner shall be afforded an opportunity to supply additional information before the Department evaluates the merits of the request." The related provisions of Rule 62-4.050(5)(b), Florida Administrative Code, also state in part that when "an application is received without the required fee, the Department shall acknowledge receipt of the application and shall immediately notify the applicant by certified mail that the required fee was not received and advise the applicant of the correct fee."
It is undisputed in this case that the Department did not immediately notify Alden Pond that the variance processing fee was not received and advise the applicant of the correct fee. To the contrary, the Hearing Officer's unchallenged findings of fact in paragraphs 34 and 35 of the Recommended Order establish that:
Alden Pond submitted its variance request to the Department by a letter from its attorney, Jay Landers, dated August 18, 1993. (Petitioner's Ex. 29)
The Department did not advise Alden Pond that the variance request would not be processed without payment of the processing fee until the filing of its Prehearing Stipulation shortly before the formal DOAH hearing was held on April 26-29, 1994. (Department's Prehearing Stipulation, page 4)
In view of the above, the Department's first exception is granted to the extent that the Hearing Officer's conclusion of law in paragraph 112 that Alden Pond's "request for variance is properly considered part of the original application and no separate application fee should be required" is rejected.
Second Exception
In its second exception, the Department challenges the correctness of the Hearing Officer's conclusion of law in the next to the last sentence of paragraph 111 of the Recommended Order that a variance "is not an application that can be reviewed separately or distinctly from the underlying [permit] application." The Department contends in this exception that an application for a variance from the standard requirements for a dredge and fill permit constitutes a separate application legally distinguishable from the underlying permit application. The Department's contention appears to be supported by the applicable statutes or Department rules.
The filing and processing of dredge and fill applications affecting jurisdictional wetlands are governed by the provisions of Sections 403.91- 403.929, Florida Statutes, 5/ and the implementing rule provisions of Chapter 62-312, Florida Administrative Code. 6/ However, the filing and processing of petitions or applications for variances from environmental standards are governed by the provisions of Section 403.201, Florida Statutes, and the implementing provisions of Rule 62-103.100, Florida Administrative Code. There is no language in any of the above cited statutes or rules stating that the variance application process merges with or is eliminated by a related permit application proceeding.
In addition, the governing administrative case law does not support the Hearing Officer's conclusion of law that a variance application can not be reviewed separately from the underlying permit. See, Dept. of Environmental Regulation v. United Citizens Against Pollution, Inc., 3 FALR 435-A (Fla. Dept. of Env. Regulation 1981). In the United Citizens case, Getty Oil Company filed applications for permits to dredge and fill, drill an exploratory well, and for natural gas flare construction in East Bay located in Sarasota County. Getty Oil also filed a separate application for a variance from the the requirements of former Rule 17-4.28(8)(a), Florida Administrative Code. A Final Order was entered by the Department of Environmental Regulation in the United Citizens case issuing the requested permits and variance based on a stipulation between the parties and a recommended order of a DOAH hearing officer. The Final Order contained the following conclusion:
In view of the agreed resolution of the two DER permit applications, a hearing on these matters became unnecessary. However, as to the application for variance, subsection 403.201, F.S. mandates that the Department hold a hearing on each application for variance. Inasmuch as the parties to the proceedings has resolved all factual and legal
questions in their Stipulation, the only remaining purpose for a hearing was to permit public participation. (emphasis supplied)
Id. at 443-A.
The fact that a separate variance was issued by the Department in the United Citizens case in addition to the requested permits and that a DOAH formal hearing was held solely to comply with the variance requirements of Section 403.201(3), Florida Statutes, was cited with approval in the court's opinion in the related case of Getty Oil Company v. State Dept. of Natural Resources, 419 So.2d 700, 702 (Fla. 1st DCA 1982).
The Department also contends in the second exception that a "variance" is not a "license" within the purview of Sections 120.52(9) and 120.60, Florida Statutes. Consequently, the Department asserts that the statutory time limitations and other conditions and requirements set forth in Section 120.60(2), Florida Statutes, are never applicable to an application for a variance. A review of the governing law reflects support for these contentions and assertions set forth in the Department's second exception.
A license is defined in Section 120.52(9), Florida Statutes, as follows: "License" means a franchise, permit,
certification, registration, charter, or
similar form of authorization required by law
One of the maxims of statutory construction is "expresio unius est exclusio alterius," whereby the mention of specific things in a statute implies the exclusion of all things not specifically mentioned. See cases collected in 49 Fla. Jur. 2d, Statutes, 126; Sutherland Stat. Const., 47.23 (5th Ed). A related general rule of statutory construction is "ejusdem generis." Under this rule, where general words follow specific words in a statute, the general words are construed to include and embrace only the things or objects of the same kind, class or nature as those specifically enumerated. See cases collected in 49 Fla. Jur. 2d, Statutes, 128; Sutherland Stat. Const., 47.17 (5th Ed).
The critical term "variance" is not specifically included within the above quoted language of Section 120.52(9), Florida Statutes, defining a "license" for the purposes of the Administrative Procedure Act. Thus, under the above referenced rules of statutory construction a "variance" is not a "license" within the purview of Sections 120.52(9) and 120.60, Florida Statutes, unless it is included within the general class of "similar forms of authorization required by law." However, the Department correctly notes in its exceptions that a variance is not similar to a permit authorization within the context of environmental regulation laws.
The issuance of a dredge and fill permit constitutes a determination by the Department that an applicant has provided reasonable assurance of compliance with applicable environmental permitting standards. The granting of a variance, by contrast, constitutes a determination by the Department that the applicant should be excused from complying with applicable environmental standards due to equitable considerations of "practical difficulty" or "unnecessary hardship."
In this regard, it is significant that Rule 62-103.100(4), Florida Administrative Code, requires that the form of the public notice of an intent to grant or deny a variance is governed by the provisions of related Rule 62-
103.150(3)(formerly Rule 17-103.150(3). Rule 62-103.150(3) pertains to public notices to "any person whose substantial interests are or may be affected by proposed agency action other than on a permit application." (emphasis added)
In view of the above, I conclude that the provisions of Section 403.201, Florida Statutes, and Rule 62-103.100, Florida Administrative Code, dealing with "variances" do not come within the purview of the "licensing" provisions of Section 120.60, Florida Statutes. Consequently, the Department's second exception is granted.
Conclusion
The Hearing Officer correctly concluded in paragraph 111 of the Recommended Order that Alden Pond's request for variance "is not an application for a license or permit within the meaning of Section 120.60(2), Florida Statutes."
In contrast, the Hearing Officer also inexplicably concluded in paragraphs 111 and 112 that the request for variance can not "be reviewed separately or distinctly from the underlying [permit] application" and should be "considered to be a part of the original [permit] application." These latter legal conclusions are seemingly directly inconsistent with the former conclusion of law which, as discussed above, is supported by the controlling statutory, regulatory and case law of Florida.
The Hearing Officer ultimately determined that Alden Pond was not entitled to the grant of the variance or the issuance of the related permit application, and I concur with these determinations. However, it was necessary for precedent purposes that more than a routine Final Order be entered in this case to negate any suggestion that the Department views an application for variance to have no legal viability separate and apart from a related permit request filed by the same applicant. It is therefore ORDERED:
Paragraph 111 of the Recommended Order is modified to read as follows:
In the alternative, Petitioner argues that it is entitled to a variance on the merits. The question of whether a variance should be issued for the dredging of the north hydrological channel has been at issue since the application was first filed. The canal Petitioner proposes to construct is dependent on the hydrological channel for the proper flow of water through the canal. Without such a variance, that hydrological channel cannot be dredged in these conditionally approved shellfish waters. The Petitioner formally raised the variance issue by a letter from its attorney dated August 18, 1993. The request for a variance under the circumstances of this case is not an application for a license or permit within the meaning of Section 120.52(9) and 120.60, Florida Statutes. Consequently, it is concluded that Petitioner is not entitled to a default variance pursuant to Section 120.60(2), Florida Statutes.
Paragraph 112 of the Recommended Order is modified to read:
Respondent's contention that the request for a variance should not be considered because Petitioner did not timely file an application fee is likewise rejected. Under the circumstances of this case, the Respondent is estopped from asserting the failure to timely submit a variance application fee as a bar to the consideration of the variance request on its merits due to the Respondent's failure to promptly notify the Petitioner that the required fee was not received and to advise the Petitioner of the correct fee as mandated by Rules 62-4.050(5)(b) and
62-103.100(1), Florida Administrative Code.
The Recommended Order of the Hearing Officer, as modified by Paragraphs A and B above, is adopted and is incorporated herein by reference.
The request for variance of Alden Pond, Inc., as set forth in the letter from its attorney dated August 18, 1993, is DENIED.
Alden Pond Inc.'s application for permit number 311765419 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, 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 10th day of October, 1994, in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
VIRGINIA B. WETHERELL
Secretary
Twin Towers Office Building 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
FILING AND ACKNOWLEDGMENT
FILED, on this date, pursuant to 120.52 Florida Statutes, with the designated Department Clerk, receipt of which
is hereby acknowledged
KATHY C. CARTER 10/12/94
Clerk Date
ENDNOTES
1/ The unchallenged findings of fact in paragraph 5 of the Recommended Order reflect that Pelican Island National Wildlife Refuge was the first national wildlife refuge established in the United States and that the refuge has been declared to be a water of international importance.
2/ This rule was recently transferred intact from Title 17 of the Florida Administrative Code effective August 10, 1994.
3/ See footnote 4 at page 6.
4/ This rule was transferred intact from Title 17 of the Florida Administrative Code effective August 10, 1994.
5/ The statutory provisions of sections 403.91-403.929 were repealed effective July 1, 1993, pursuant to Ch. 93-213, s. 44, Laws of Florida. Portions of these statutory provisions were transferred to present Chapter 373, Florida Statutes (1993), pursuant to s. 30 of Ch. 93-213, Laws of Florida. The "grandfather" provisions of s. 43 of Ch. 93-213, Laws of Florida, 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 the effective date of the act." Accordingly, the citations herein to Sections 403.91-403.929, Florida Statutes, refer to the statutory law as it existed prior to July 1, 1993.
6/ This rule was transferred intact from Title 17 of the Florida Administrative Code effective August 10, 1994.
CERTIFICATE OF SERVICE
I DO HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been sent by U.S. mail to:
Joseph W. Landers, Jr., Esquire John T. Lavia, III, Esquire LANDERS & PARSONS
Post Office Box 271 Tallahassee Florida 32302
and by hand delivery to:
Claude B. Arrington Hearing Officer
Division of Administrative Hearings
The DeSoto Bldg 1230 Apalachee Pkwy
Tallahassee Florida 32399-1550
Ann Cole, Clerk
Division of Administrative Hearings
The DeSoto Bldg 1230 Apalachee Pkwy
Tallahassee Florida 32399-1550
Douglas MacLaughlin, Esquire John Chaves, Esquire
Department of Environmental Protection 2600 Blair Stone Rd.
Tallahassee Florida 32399-2400 this 12th day of October, 1994.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
J. TERRELL WILLIAMS Assistant General Counsel Twin Towers Office Bldg 2600 Blair Stone Rd.
Tallahassee Florida 32399-2400 Telephone: 904/488-9314
| Issue Date | Proceedings |
|---|---|
| Oct. 13, 1994 | Final Order filed. |
| Aug. 31, 1994 | Recommended Order sent out. CASE CLOSED. Hearing held 04/26,27,28 &29/94. |
| Jul. 06, 1994 | Proposed Findings of Fact of the Department of Environmental Protection filed. |
| Jun. 20, 1994 | Petitioner`s Proposed Recommended Order filed. |
| Jun. 20, 1994 | Department of Environmental Protection`s Memorandum of Law Regarding Issues Raised at Final Hearing filed. |
| Jun. 08, 1994 | (Petitioner) Notice of Filing Amendments To Transcripts filed. |
| Jun. 08, 1994 | Transcript (amendments to transcripts, Volumes III, IV, tagged); Cover Letter filed. |
| Jun. 01, 1994 | (Petitioner) Notice of Filing filed. |
| Jun. 01, 1994 | Transcript (Volumes I, II, III, IV, Tagged) filed. |
| Jun. 01, 1994 | (Petitioner) Notice of Filing filed. |
| Apr. 29, 1994 | CASE STATUS: Hearing Held. |
| Apr. 22, 1994 | Order Denying Motion in Limine sent out. |
| Apr. 22, 1994 | Subpoena (from J. Landers) filed. |
| Apr. 22, 1994 | Deposition of Patrick M. Rose; Deposition of Dorn Whitmore (copy); Deposition of Douglas Woodward (copy) filed. |
| Apr. 22, 1994 | (Petitioner) Notice of Filing (13 Tagged); Deposition of Trudie Bell;Deposition of Barbara Bess (Copy); Deposition of Kenneth Echternacht;Deposition of Mark Latch; Deposition of David Ferrell; Deposition of Janet LLewellyn; Deposition of Brian Pearce; D |
| Apr. 19, 1994 | Petitioner`s Response To Department of Environmental Protection`s Motion In Limine filed. |
| Apr. 19, 1994 | (Joint) Prehearing Stipulation filed. |
| Apr. 19, 1994 | Department of Environmental Protection`s Motion in Limine filed. |
| Apr. 18, 1994 | Petitioner`s Notice of Taking Deposition Duces Tecum filed. |
| Apr. 18, 1994 | Petitioner`s Notice of Taking Deposition Duces Tecum filed. |
| Apr. 14, 1994 | Notice of Taking Deposition Duces Tecum (from DH MacLaughlin) filed. |
| Apr. 08, 1994 | (Respondent) Notice of Taking Deposition Duces Tecum filed. |
| Mar. 23, 1994 | Petitioner`s Re-Notice of Taking Deposition Duces Tecum filed. |
| Mar. 17, 1994 | Petitioner`s Notice of Taking Deposition Duces Tecum w/attached subpoenas filed. |
| Mar. 04, 1994 | Petitioner`s Notice of Taking Deposition Duces Tecum filed. |
| Jan. 26, 1994 | Petitioner`s Notice of Service of Interrogatories w/Interrogatories to Respondent and Answers Thereto filed. |
| Dec. 29, 1993 | Prehearing Order sent out. |
| Dec. 29, 1993 | Notice of Hearing sent out. (hearing set for 4/26-29/94; 9:00am; Vero Beach) |
| Dec. 27, 1993 | (Petitioner) Response to Initial Order Establishing Prehearing Procedure filed. |
| Dec. 16, 1993 | Initial Order issued. |
| Dec. 10, 1993 | Request for Assignment of Hearing Officer and Notice of Preservation of Record; Agency Notice of Permit Denial; Petition for Formal Administrative Hearing filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 10, 1994 | Agency Final Order | |
| Aug. 31, 1994 | Recommended Order | Dredge and fill project in Outstanding Florida Waters not clearly in public interest even when mitigation plan and recommended conditions are considered. |
JACKSONVILLE SHIPYARD, INC. vs. DEPARTMENT OF ENVIRONMENTAL REGULATION, 93-006982 (1993)
BOCILLA WATERWAYS, INC. vs. DEPARTMENT OF ENVIRONMENTAL REGULATION, 93-006982 (1993)
LEE COUNTY vs MOSAIC FERTILIZER, LLC AND DEPARTMENT OF ENVIRONMENTAL PROTECTION, 93-006982 (1993)
S. N. KNIGHT AND SONS, INC. vs. CENTRAL AND SOUTH FLORIDA FLOOD CONTROL DISTRICT, 93-006982 (1993)
