STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PHILIP J. MCCABE, )

)

Petitioner, )

)

vs. ) CASE NO. 94-2571

) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing was held in Naples, Florida, on September 23, 1994, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Philip J. McCabe, pro se

8111 Bay Colony Drove Number 204

Naples, Florida 33963

For Respondent: Douglas M. MacLaughlin

Assistant General Counsel

2600 Blair Stone Road, Room 654

Tallahassee, Floirda 32399-2400 STATEMENT OF THE ISSUES

The issue in the case is whether Petitioner is entitled to a dredge and fill permit to construct a 3245 square foot overwater platform on which to erect a private residence.

PRELIMINARY STATEMENT

By Joint Application for Works in the Waters of Florida filed April 14, 1993, Petitioner requested a dredge and fill permit. By Notice of Permit Denial dated March 14, 1994, Respondent denied the application. Petitioner requested a formal hearing.

At the hearing, Petitioner called two witnesses and offered into evidence five exhibits. Respondent called two witnesses and offered into evidence 13 exhibits. All exhibits were admitted.

The transcript was filed November 30, 1994. Rulings on timely filed proposed recommended orders are in the appendix.

FINDINGS OF FACT

1. By Joint Application for Works in the Waters of Florida filed April 14, 1993, Petitioner requested a dredge and fill permit. The application pertains to the construction of a 3245 square feet platform over a part of Doctors Bay in Naples. Petitioner intends to construct a home on the platform.

   
   

2. The application explains that an existing dock covers 1200 square feet of the area proposed to be covered by the new structure. Petitioner offers in the application to enhance the habitat beneath the overwater structure by adding clean concrete rubble and pilings. The application assures that the material would provide suitable substrate and increase the surface area for encrusting organisms such as algae, barnacles, sea squirts, and oysters.

   
   

3. The application states that Petitioner would riprap the shoreline and a deadend corner immediately west of the parcel in order to improve tidal flushing. According to the application, Petitioner would also plant mangroves near the deadend corner, as well as inside an atrium entrance to the home.

   
   

4. The proposed structure would be located at the south end of a parking lot at the southeast corner of Park Shore Drive and Gulfshore Boulevard. West of the proposed structure is a narrow strip of land running alongside Gulfshore Boulevard. North of the proposed structure is a part of the narrow strip of land and the parking lot. The north and west sides of the proposed site are bulkheaded by vertical seawalls.

   
   

5. The waters of Doctors Bay extend south and east of the proposed structure. To the south are a 10-slip dock and a fingerfill peninsula. To the east are several overwater structures covering about 25,000 square feet of water with each structure measuring about 50 feet by 500 feet. The structures are devoted to retail operations. The structure immediately east of the proposed structure is a restaurant owned by Petitioner.

   
   

6. Doctors Bay is a Class II waterbody, although it is closed to shellfishing. The waterbody was originally a viable estuary, as part of a relatively shallow back bay and mangrove system. But, as a result of extensive development permitted mostly in the 1960s and 1970s, the waterbody bears little resemblance to the natural system that it once was.

   
   

7. Vast areas of the estuary have been dredged and filled for the construction of structures and bridges. Tidal flushing has been impeded by the fill, as well as the uneven bottom left by the dredging projects.

   
   

8. Tidal flushing in the area of the proposed project is impeded by the Park Shore Drive bridge to the north. The bay is nearly closed at the point of the bridge.

   
   

9. The flushing problem is exacerbated at the proposed site due to prevailing currents and winds, which drive vegetative debris and trash into 90- degree corner of the bay at the site of the proposed structure.

   
   

10. The water in this artificially created deadend corner of the bay is not without a source of agitation, however. In addition to runoff from the nearby parking lot, undetained stormwater from Gulfshore Boulevard is dumped into the deadend corner by a stormwater outfall.

11. Not surprisingly, the waters of Doctors Bay violate water quality standards for dissolved oxygen (DO). Monthly DO readings from 1977 through 1989, which was the last year such date were collected, show a trend of water quality deterioration. The site closest to the proposed site violated the DO standard of four parts per million one month each year between 1977 and 1987. In 1988, the same waters violated the DO standard four months, and, in 1989, these waters violated the DO standard eight months. Almost all of the Moorings Bay system, of which Doctor Bay is a part, violated the DO standards for over six months of 1989.

    
    

12. Sediments at the proposed site are sandy and silty with shell fragments and high concentrates of polychaetes, or marine worms. Open-water sediments are oxygenated with no presence of hydrogen sulfide. Sediments under existing platforms are not oxygenated and convey the rotten-egg odor of hydrogen sulfide. Microalgae exist on the open-water sediments and shell fragments, but not on those under the platforms. Transparency is much greater in the open water than in the shaded water. Pilings in the area hosted the typical encrusting organisms, such as oysters, barnacles, and periwinkles.

    
    

13. As stated in Respondent's inspection report of July 7, 1993, a short- term impact of the proposed project would be the resuspension of nearby sediments from the turbulence of the pile-driving. Under the circumstances, it is unnecessary to address the other short-term concern expressed in the inspection report-the resuspension of heavy metals suspected to exist in the sediments due to the stormwater outfall.

    
    

14. As stated in the inspection report, other impacts of the proposed project would include a reduction in transparency. Shading reduces the depth at which photosynthesis takes place, By reducing transparency, the proposed project would likely reduce by at least 10 percent the compensation point, which is the point at which the production of oxygen by plants through photosynthesis is equal to the use of oxygen by plants through respiration by organisms.

    
    

15. Also, the proposed structure would interfere with what little water movement exists in the area. Pilings would trap debris, whose decomposition in the water would further reduce DO levels.

    
    

16. By letter July 12, 1993, Respondent required Petitioner to submit, among other things, reasonable assurance that the proposed mitigation would reduce the expected impacts of the proposed project and a plan or procedure to protect nearby waters.

    
    

17. Petitioner proposes mitigation through the placement of riprap under the proposed structure, which is intended in part to ensure that trapped debris and trash remain above-water. Petitioner also proposes the planting of mangroves over a 140 square foot area, despite the presence of the seawall, and a 400 square foot area atrium in the structure.

    
    

18. Aside from an upland relocation of the proposed project, no mitigation can provide the necessary reasonable assurances. Correctly concluding the same thing, Respondent informed Petitioner, by letter dated March 14, 1994, that his application was denied.

    
    

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes (1993).

    (All references to Sections are to Florida Statutes. The parenthetical reference to a year is to the version of the Florida Statutes containing the Section. All references to Rules are to the Florida Administrative Code.)

    
    

20. Under the law in effect prior to July 1, 1993, Petitioner is not entitled to a dredge and fill permit. Former Section 403.913 (1991) stated: "No person shall dredge or fill in, on or over surface waters without a permit from [Respondent], unless exempted by statute or . . . rule."

    
    

21. Section 403.913 (1991) was contained in Part VIII of Chapter 403, specifically in the portion of Part VIII known as the Warren S. Henderson Wetlands Protection Act of 1984 (Wetlands Protection Act). The Wetlands Protection Act, which comprised Sections 403.91-403.929 (1991), also included Section 403.918 (1991), which provided in part:

    
    

    1. A permit may not be issued under ss. 403.91-403.929 unless the applicant provides [Respondent] with reasonable assurance that water quality standards will not be violated. [Respondent], by rule, shall establish water quality criteria for wetlands within its jurisdiction, which criteria give appropriate

       recognition to the water quality of such wetlands in their natural state.

    2. A permit may not be issued under ss. 403.91-403.929 unless the applicant provides [Respondent] with reasonable assurance that the project is not contrary to the public interest.

       However, for a project which significantly degrades or is within an Outstanding Florida Water, as provided by [Respondent] rule, the applicant must provide reasonable assurance that the project will be clearly in the public interest.

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

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

          2. Whether the project will adversely affect the conservation of fish and wildlife, including

             endangered or threatened species, or their habitats;

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

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

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

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

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

       2. If the applicant is unable to otherwise meet the criteria set forth in this subsection, . . . [Respondent], in deciding to grant or deny a permit, shall consider measures proposed by or acceptable to the applicant to mitigate adverse effects which may be caused by the project. If the applicant is unable to meet water quality standards because existing ambient water quality does not meet standards, . . . [Respondent] shall consider mitigation measures proposed by the applicant that cause net improvement of the water quality in the receiving body of water for those parameters which do not meet standards. . .

          * * *

          
          

22. Rule 17-312.080 provides in relevant part:

    
    

    1. In accordance with Section 403.918(1), F.S., no permit shall be issued unless the applicant has provided [Respondent] with reasonable assurance based on plans, test results or other information that the proposed dredging

       or filling will not violate water quality standards.

    2. No permit shall be issued unless the applicant provides [Respondent] with reasonable assurance based on plans, test results or other information that the project is not contrary to the public interest in accordance with Section 403.918(2), F.S.

       * * *

       1. [Respondent] recognizes the special value and importance of Class II waters to Florida's economy as existing or potential sites of commercial and recreational shellfish harvesting and as a nursery area for fish and shellfish.

          1. Accordingly, [Respondent] 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 proposed 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 area and to adjacent areas and shall provide reasonable assurance that the standards for Class II waters will not be violated.

       * * *

       
       

23. The proposed project will shade a substantially greater area of water than is presently shaded. Water at the proposed site already violates DO standards. The shading will cause further deterioration of DO levels, with the attendant harm to living organisms. The proposed project contains no proposal to cause a net improvement in DO levels; thus, Petitioner failed to provide reasonable assurance as to this factor. These findings and conclusions are reinforced by the probability of a further reduction of DO levels by the anoxic decay of trapped vegetative debris under the proposed platform. These findings and conclusions do not address the water quality issues raised by Respondent regarding the resuspension of heavy-metal contaminants presumed to be trapped in sediments.

24. Statutory changes enacted in 1993 have eliminated dredge and fill permits, replacing them with permits for the management and storage of surface waters (MSSW).

    
    

25. Section 45, Chapter 93-213, Laws of Florida, repealed the Wetlands Protection Act. The repeal took place on July 1, 1993, pursuant to Section 89, Chapter 93-213, Laws of Florida.

    
    

26. Section 30, Chapter 93-213, Laws of Florida, substantially amended Section 373.414 by adding much of the language of former Section 403.918. However, there are significant differences in the first paragraph.

    
    

27. Section 373.414(1) (1993) provides, in relevant part:

    
    

    As part of an applicant's demonstration that an activity regulated under this part will not be harmful to the water resources or will not be inconsistent with the overall objectives of the [water management] district, [Respondent]

    shall require the applicant to provide reasonable assurance that state water quality standards . . . will not be violated and reasonable assurance that such activity in, on, or over surface waters . . . is not contrary to the public interest.

    1. In determining whether an activity ... is not contrary to the public interest ..., . . . [Respondent] shall consider and balance the following criteria:

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

       2. Whether the activity will adversely affect the conservation of fish and wildlife, including

          endangered or threatened species, or their habitats;

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

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

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

       6. Whether the activity will adversely affect or will enhance significant historical and archaeological resources . . .; and

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

    2. If the applicant is unable to otherwise meet the criteria set forth in this subsection, . . . [Respondent], in deciding to grant or deny a permit, shall consider measures proposed by or acceptable

    to the applicant to mitigate adverse effects which may be caused by the regulated activity. If the applicant is unable to meet water quality standards because existing ambient water quality does not meet

    standards, . . . [Respondent] shall consider mitigation

    measures proposed by the applicant that cause net improvement of the water quality in the receiving body of water for those parameters which do not meet standards. . . .

    * * *

    
    

28. The new statutory language, now set forth in Section 378.414 (1993), no longer supplies the conditions under which an applicant may find relief from the broad prohibition--now repealed--against dredge and fill activities in, on, or over surface water. Section 378.414 (1993) instead supplies the conditions under which an applicant may obtain an MSSW permit under Part IV, Chapter 373.

    
    

29. The key permitting provision in Part IV, Chapter 373, is Section

    373.413 (1993), which provides in part:

    
    

    1. Except for the exemptions set forth herein,

       . . . [Respondent] may require such permits and impose such reasonable conditions as are necessary to assure that the construction or alteration of any stormwater management system, dam, impoundment, reservoir, appurtenant work, or works will comply with the provisions of this part and applicable rules promulgated thereto and will not be harmful

       to the water resources of the district. [Respondent]

       . . . may delineate areas within the district wherein permits may be required.

    2. A person proposing to construct or alter a stormwater management system, dam, impoundment, reservoir, appurtenant work, or works subject to such permit shall apply to [Respondent] for

    a permit authorizing such construction or alteration. . . .

    * * *

    
    

30. Section 373.403 (1993) provides the following definitions:

    
    

    1. "Dam" means any artificial or natural barrier, with appurtenant works, raised to obstruct or impound, or which does obstruct or impound, any of the surface waters of the state.

       
       

    2. "Appurtenant works" means any artificial improvements to a dam which might affect the safety of such dam or, when employed might affect the holding capacity of such dam or

       of the reservoir or impoundment created by such dam.

       
       

    3. "Impoundment" means any lake, reservoir, pond, or other containment of surface water occupying a bed or depression in the earth's surface and having a discernible shoreline.

       
       

    4. "Works" means all artificial structures, including, but not limited to, ditches, canals, conduits, channels, culverts, pipes, and other

       construction that connects to, draws water from, drains water into, or is placed in or across the waters in the state.

       * * *

       (7) "Alter" means to extend a dam or works beyond maintenance in its original condition, including changes which may increase or diminish the flow or storage of surface water which may affect the safety of such dam or works.

       * * *

       (10) "Stormwater management system" means a system which is designed and constructed or implemented to control discharges which are necessitated by rainfall events, incorporating methods to collect, convey, store, absorb, inhibit, treat, use, or reuse water to prevent or reduce flooding, overdrainage, environmental degradation, and water pollution or otherwise affect the quantity and quality of discharges from the system.

       * * *

       
       

31. Although Section 373.403 (1993) contains definitions of "dredging" and "filling," these provisions do not play an important role in a Part devoted to the permitting of stormwater systems. However, Section 373.414(9) (1993) addresses rules promulgated under the now-repealed Wetlands Protection Act. Section 373.414(9) (1993) provides in relevant part:

[Respondent] . . ., on or before July 1, 1994, shall adopt rules to incorporate the provisions of this section, relying primarily on the existing rules of [Respondent] and the water management districts, into the rules governing the management and storage of surface waters.

Such rules shall seek to achieve a statewide, coordinated and consistent permitting approach to activities regulated under this part. . . .

Until rules adopted pursuant to this subsection become effective, existing rules adopted under this part and rules adopted pursuant to the authority of ss. 403.91-403.929 shall be deemed authorized under this part and shall remain in full force and effect. . . .

32. Section 373.414(14) (1993) adds:

An application under this part for dredging and filling or other activity, which is submitted and complete prior to the effective date of rules adopted pursuant to subsection (9) shall be reviewed under the rules adopted pursuant to

this part and part VIII of chapter 403 in existence prior to the effective date of the rules adopted pursuant to subsection (9) and shall be acted upon by the agency which received the application,

unless the applicant elects to have such activities reviewed under the rules of this part as amended

in accordance with subsection (9).

33. Evidently, the Legislature intended to encompass general dredge and fill permitting under MSSW permitting through reliance on the broadly defined term, "works." Until new rules are promulgated, Petitioner's application for, in effect, an MSSW permit may be evaluated under the old dredge and fill rules. Thus, for the reasons already stated, Petitioner is not entitled to an MSSW permit.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Department of Environmental Protection enter a final order denying Petitioner's application.

ENTERED on December 22, 1994, in Tallahassee, Florida.

ROBERT E. MEALE

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 on December 22, 1994.

APPENDIX

Rulings on Petitioner's Proposed Findings

1-12: adopted or adopted in substance.

13-14: rejected as unsupported by the appropriate weight of the evidence. 15-16: rejected as unnecessary.

17 (first sentence): adopted or adopted in substance.

17 (second sentence): rejected as unsupported by the appropriate weight of the evidence.

18-19: rejected as subordinate.

20: adopted or adopted in substance. 21: rejected as subordinate.

22: rejected as subordinate and unsupported by the appropriate weight of the evidence.

23: rejected as subordinate.

24-25: adopted or adopted in substance.

26-27: rejected as unsupported by the appropriate weight of the evidence. 28-30: rejected as unnecessary.

31 (first sentence): rejected as subordinate and irrelevant.

31 (second sentence): rejected as unsupported by the appropriate weight of the evidence.

32-33: rejected as unsupported by the appropriate weight of the evidence.

Rulings on Respondent's Proposed Findings

1-4 (first sentence): adopted or adopted in substance.

4 (second sentence): rejected as irrelevant. 5-23: adopted or adopted in substance.

24-29: rejected as unnecessary.

30-31: adopted or adopted in substance.

COPIES FURNISHED:

Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, FL 32399-2400

Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, FL 32399-2400

Philip J. McCabe, pro se 8111 Bay Colony Dr. #204

Naples, FL 33963

Douglas M. MacLaughlin Assistant General Counsel

2600 Blair Stone Road, Room 654

Tallahassee, FL 32399-2400

J. Kendrick Tucker Huey Guilday

Highpoint Center, Suite 900

106 E. College Ave. Tallahassee, FL 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period 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.

Docket for Case No: 94-002571

Orders for Case No: 94-002571