STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JOHN RONDOLINO, )
)
Petitioner, )
)
vs. ) Case No. 01-2910
) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )
)
Respondent. )
)
RECOMMENDED ORDER
On March 6-7, 2002, an administrative hearing was held in this case in Tampa, Florida, before J. Lawrence Johnston, Administrative Law Judge (ALJ), Division of Administrative Hearings (DOAH).
APPEARANCES
For Petitioner: John Rondolino, pro se
Post Office Box 1440
Crystal River, Florida 34423-1440
For Respondent: Craig D. Varn, Esquire
Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUES
The issues in this case are: (1) whether Respondent, the Department of Environmental Protection (DEP) should grant the applications of Petitioner, John Rondolino, for an Environmental
Resource Permit (ERP) and a Sovereign Lands Consent of Use for a proposed single-family dock on his property on the Rainbow River in near Dunnellon in Marion County, Florida; and (2) whether the landward extent of DEP's wetlands jurisdiction on Petitioner's property should be determined in this proceeding and, if so, the landward extent of those jurisdictional wetlands.
PRELIMINARY STATEMENT
DEP referred this matter to DOAH on July 23, 2001. The referral requested assignment of an ALJ to conduct an administrative proceeding and hearing on Rondolino's Petition for Relief from Consolidated Notice of Denial in DEP OGC Case 01-1019 (the Petition). The Petition sought issuance of a final order granting Petitioner's ERP and Sovereign Lands Consent of Use applications for his proposed dock and his ERP application for other dredge and fill activities in parts of the property where DEP asserted wetlands jurisdiction.
After assignment of the ALJ, final hearing was scheduled for November 14-16, 2001, in Tampa, Florida. On October 22, 2001, Rondolino moved for continuance; the motion was granted without objection based on settlement discussions, and final hearing was continued to March 6-8, 2002.
On February 26, 2002, the parties filed a Joint Pre-Hearing Statement. It reflected that Petitioner was dropping his challenges to portions of the Consolidated Notice of Denial other
than portions relating to his ERP and Sovereign Lands Consent of Use applications for his proposed single-family dock; it was Petitioner's position that the appropriate wetlands jurisdictional delineation on his property would eliminate the need for any other applications or permits for activities he was proposing in what he believes should be determined to be uplands. In essence, he was seeking a declaration that no DEP permits were required for activities in alleged upland areas of his property.
At final hearing, Rondolino called three DEP witnesses: William Vorstadt; Peter Sleszynski; and Allen Shuey. He also testified in his own behalf and had Rondolino Exhibits 1A, 1B, 2A-2D, 3A-3F, 11A, 13A, 14A-14H, 15A-15B, 16A, 17A, 17B, 23A (1-
91), 25A-25C, 34, 35A-35G, 37, and 39 admitted in evidence. Ruling was reserved on DEP's objections to Rondolino Exhibits 24A-24F, 25D-25G, 25I, 29A, 30A-30F, 32A-32D, and 38 on grounds
of relevance and, except for 30A-30F, authenticity. Upon review of the exhibits, along with Rondolino's testimony as to their authenticity, those objections are now overruled although the relevance of several is marginal. DEP cross-examined and re- called Shuey and Vorstadt but offered no additional exhibits in evidence.
After presentation of evidence, DEP requested a transcript of the final hearing, and the parties were given ten days from the filing of the transcript in which to file proposed
recommended orders (PROs). The Transcript was filed on April 5, 2002. The parties' timely-filed PROs have been considered in the preparation of this Recommended Order.
On April 29, 2002, Petitioner filed a Motion to Limit Production Expenses/Costs of $284 billed to Petitioner by Dyer, Riddle, Mills & Precourt, Inc. (DRMP). On May 3, 2002, Petitioner replied to DEP's Response, which was not filed until May 8, 2002, when DEP also filed a Motion to Strike Petitioner's Reply. On May 10, 2002, DEP filed a copy of a letter suggesting that DRMP has waived the $284, which if true would moot the Motion to Limit Production Expenses/Costs. On May 13, 2002, Petitioner filed a Response to DEP's Motion to Strike, in which Petitioner acknowledged the apparent waiver of the charge but still demanded a ruling and hinted that now Petitioner also wants to be compensated in some undetermined amount for his time.
Jurisdiction is reserved for ten days to rule on the pending motions in the event the issues are not moot by waiver of charge by DRMP.
FINDINGS OF FACT
Procedural Background
On February 23, 2000, DEP received an anonymous complaint regarding the clearing and filling of a parcel of property that was subsequently purchased by Petitioner, John Rondolino.
Petitioner's property is Parcel Number 34581-001-02, Section 18, Township 16S, Range 19E, Marion County, 7069 South West 190th Avenue Road Extension, Dunnellon, Florida 34432-2827. Comprising approximately 1.159 acres, the pie-shaped parcel is located adjacent to the Rainbow River, which is a Class III Outstanding Florida Water and an Aquatic Preserve.
As a result of the anonymous complaint, DEP inspected the site on February 24, 2000, and determined that a fill violation of Chapter 373, Part IV, Florida Statutes, had occurred. During this inspection, DEP delineated an informal wetland jurisdictional line such that approximately 0.47 acre of the property nearest the river was claimed as state jurisdictional wetlands.
On March 29, 2000, Petitioner purchased the property upon which the alleged fill violation had occurred.
On May 4, 2000, Petitioner and his wife met with DEP staff and indicated that he wanted to construct a structure for water-related activities (SFWRA)(a single-family dock) and make other improvements to the property. During this meeting, Petitioner challenged DEP's informal wetland jurisdictional line.
At Petitioner's request, DEP delineated a second informal wetland jurisdictional line on May 23, 2000. The second delineation was somewhat different than the first but still
included approximately the same amount of Petitioner's land within the state's jurisdictional wetlands.
In discussion with DEP, Petitioner was informed that, in order to construct a SFWRA and make other improvements within the jurisdictional wetlands, he had to submit an application in accordance with Florida Administrative Code Rule 18-20.007 and Chapter 373, Florida Statutes1. It was recommended that, although Petitioner only wanted to build a single-family dock at the time, he might want to apply for all of the activities planned for the future in a single application. Petitioner was concerned that such an application might lead to expenditures which he did not want to incur at the time.
During the summer of 2000, Petitioner consulted the Fowler, White law firm and, after approximately two months, had confirmed to him that it would be best for him to file a single application for all the activities Petitioner planned whether now or in the future. Petitioner authorized the law firm to prepare and file such an application.
Petitioner's application was submitted in December 2000, and the law firm sent Petitioner a bill for $2,200 for legal services rendered. The application itself was not placed in evidence, but it was possible to infer some of its content from other evidence.
DEP responded to Petitioner's application in January 2001 with a Request for Additional Information (RAI).
When Petitioner consulted Fowler, White about a response to the RAI, he was informed that it would require another $15,000 to
$20,000 of attorney fees and $25,000 to $30,000 of other professional fees to respond and prosecute the application to completion. In response, Petitioner terminated the relationship with Fowler, White and advised DEP to communicate only with him.
Petitioner then responded to the RAI himself by letter dated February 22, 2001. He advised DEP that, in view of the costs associated with aspects of his application other than the proposed dock, as well as other factors, he was "withdrawing that portion of our permit application that deals with filling those portions of the property the DEP has delineated as a wetland." However, he continued to dispute the informal jurisdictional wetlands delineation, notifying DEP that he was "refuting the wetland delineation on the basis of section 62-340.550, F.A.C." and was "requesting in writing what would be considered by the DEP as sufficient hydrologic records or site specific hydrologic data of such a duration, frequency, and accuracy to demonstrate that the records or data are representative of the long-term hydrologic conditions, including the variability in quantity and seasonality of rainfall." (Emphasis in original letter.) If there was no such information available, Petitioner requested a
meeting or an agreement "to outline the terms of study, including data collection, the specific model, model development and calibration, and model verification as stated in said section 62- 340.550, F.A.C."
As for his proposed dock, Petitioner responded separately that he could not provide the requested information until DEP advised him if the proposed dock was in a Resource Protection Area (RPA) 1, 2, or 3.
While DEP was preparing a reply to Petitioner's response to the RAI, Petitioner sent DEP several more letters in the succeeding months. Among other things, these letters repeated Petitioner's request for advice as to the RPA status of the location of his proposed dock. Also, by letter dated
March 26, 2001, Petitioner made clear that he was not requesting, and refused to agree to, a formal delineation of the jurisdictional wetlands on his property; and yet by letter dated April 30, 2001, Petitioner informed DEP that he was still waiting for a response to his request to challenge DEP's jurisdictional wetland delineation under Rule 62-340.550.
As Petitioner's letters kept coming in, DEP never finalized its reply, and Petitioner did not receive a response to his request until May 2001. One draft of a reply stated that DEP would involve its Wetland Evaluation and Delineation section in Tallahassee to assist in the disputed wetlands delineation on
Petitioner's property at no cost to Petitioner and would have directed Petitioner to John Tobe, Ph.D., of that office "for more information regarding hydrologic records and site specific hydrologic data necessary to refute the Department's wetland delineation pursuant to 62-340.550, F.A.C." But this letter apparently never was finalized or sent, and there was no evidence that the information in the draft letter ever was imparted to Petitioner.
On May 9, 2001, DEP sent Petitioner a letter preliminarily evaluating his application. Notwithstanding Petitioner's attempt to delete portions of the application dealing with fill of delineated wetlands, the evaluation addressed the entire application and presumed that proposed dredge and fill activities would occur in jurisdictional wetlands. As for the proposed dock, DEP's preliminary evaluation notified Petitioner: that it extended more than 20 percent of the width of the river at that location, contrary to Rule 18- 20.004(5)(a)1; that the proposed terminal platform was 225 square feet, contrary to Rule 18-20.004(5)(b)6; and that it extended out from the shoreline to a depth greater than -4 feet, contrary to Rule 18-20.004(5)(b)3. (None of these citations refers to special requirements for docks in an RPA.) DEP then suggested, based on "a thorough evaluation of the project location," how Petitioner could amend his application to cure those defects,
including for Petitioner's use a scaled drawing of a proposed dock alignment in relation to a large bed of paspaladium
geminatum (also known as knot grass or Egyptian paspaladium) (RPA
1) and some disturbed knot grass (RPA 2) determined by DEP to exist in the river at the project location.
In response, Petitioner wrote DEP a letter dated
May 21, 2001, stating that DEP's preliminary evaluation ignored prior correspondence amending Petitioner's proposed dock application which Petitioner said cured the very defects cited in the preliminary evaluation. (None of this alleged previous correspondence was placed in evidence or, except as discussed in Petitioner's letter dated May 21, 2001, referenced in other testimony or evidence.) Petitioner's letter then attached a drawing of the amended proposed dock and repeated the substance of the alleged prior amendments to the dock application: reduction of the length of the dock to 40 feet from the waters edge, terminating in water -3 feet deep, to comply with Rule 18- 20.004(5)(a)1 and Rule 18-20.004(5)(b)3; and reduction of the size of the terminal platform to 160 square feet to comply with Rule 18-20.004(5)(b)6 (although the exact dimensions of the terminal platform were left undetermined, and it appeared from the attached drawing that the 160 square foot terminal platform was alongside the end of the access pier).
Petitioner's letter dated May 21, 2001, acknowledged that DEP's proposed alternative alignment and dock structure was designed to avoid the RPA 1 and RPA 2 knot grass beds determined by DEP to exist at the project location. But Petitioner pointed out that under DEP's proposed alignment mooring pilings would have to be eliminated from Petitioner's project, or else they either would encroach into the 25-foot setback from the downriver neighbor's riparian line or the dock structure would have to be moved further upriver, which would place it directly over the knot grass bed.
Petitioner's letter dated May 21, 2001, also acknowledged that DEP's drawing depicted the area where Petitioner proposed to place the dock as covered with RPA 1 and RPA 2 knot grass. However, Petitioner's letter disputed the accuracy of DEP's depiction, maintaining that "the area described
. . . as 'disturbed emergent grassbed' in fact is an area where the weeds have begun to encroach into the existing access channel and cut off access to the property."
On June 4, 2001, DEP issued a Consolidated Notice of Denial. Despite Petitioner's attempt to delete portions of his application dealing with fill of delineated wetlands, the Consolidated Notice of Denial addressed and denied Petitioner's original application in its entirety. In so doing, it also addressed at length Petitioner's position that his proposed fill
activities were planned to take place in areas upland of and outside DEP's jurisdictional wetlands and that no ERP was required.
In response to DEP's Consolidated Notice of Denial, Petitioner requested an administrative proceeding. During the course of this proceeding, Petitioner has made it clear that he has deleted portions of his application dealing with fill of delineated wetlands, leaving only the application for an ERP and consent of use for his proposed dock. However, he also seeks a determination that DEP's jurisdictional wetlands do not extend landward to the areas Petitioner plans to fill.
Jurisdictional Wetlands Delineation
DEP's first informal jurisdictional wetlands delineation on February 24, 2000, was performed by Blake Meinecke and Brad Rosenblatt. Both had experience performing jurisdictional wetland delineations for DEP. At the time, Meinecke had been a DEP employee for three years; Rosenblatt had been with DEP for about a year and a half. They walked the property, took photographs, took some soil samples, made field notes, and placed seven flags on the property signifying the landward extent of jurisdictional wetlands at those points. They connected the flags to delineate a jurisdictional wetlands boundary line.
The field notes and jurisdictional wetlands boundary delineation indicated that the first flag was placed three feet from the downriver property line and 145 feet landward of the river shoreline; the second flag was placed 28 feet upriver from the first flag and 149 feet from the river shoreline; the third flag was placed 53 feet upriver from the second flag and 113 feet from the river shoreline; the fourth flag was placed 75 feet upriver from the third flag and 97 feet from the river shoreline; the fifth flag was placed 102 feet upriver from the fourth flag and 92 feet from the river shoreline; the sixth flag was placed
121 feet upriver from the fifth flag and 108 feet from the river shoreline; and the seventh flag was placed 147 feet upriver from the sixth flag and 111 feet from the river shoreline. It is not clear from those documents whether the seventh flag was placed directly on Petitioner's upstream property line or at some distance inside the property line.
The field notes suggested the presence of two sweet gum trees near the landward extent of the jurisdictional wetlands in the vicinity of the second flag, a bay tree within the jurisdictional wetlands closer to the river between the second and third flags, four bay trees2 within the jurisdictional wetlands at approximately the same distance from the river between the fourth and sixth flags, and bay trees and "osmunda"
within the jurisdictional wetlands between the sixth and seventh flags.
An Enforcement Inspection Report prepared in connection with the informal wetlands delineation added more specifics, indicating the presence of Magnolia virginianica [sic],3 Liquidambar sturaciflua [sic], Acer rubrum, and Osmunda regalis. It also indicated the presence of "[v]egetated tussocks/hummocks," which were referred to as "hydrologic indicators," and a "[m]ucky modified mineral layer present, greater than 2' [sic] within the first 6 inches." The photographs depicted mucky soils near the river shoreline; it is not clear from the photographs how far landward the obviously mucky soils extend.
DEP's second informal jurisdictional wetlands delineation on May 23, 2000, was performed by Allen Shuey, who has 16 years of experience doing and teaching jurisdictional wetlands delineations for DEP and its predecessor agency, assisted by Blake Meinecke.
Shuey first re-staked the flags in the positions indicated in the first informal delineation and took soil samples. First, samples were taken in areas where confirmation of muck soils appeared likely. Then soil samples were taken in sandier-looking places farther upslope away from the river where wetland species Shuey saw growing made him suspect that the soils
had to be mucky under the sand. Altogether at least 6-20 soil samples were taken. They confirmed to Shuey that the soil was indeed mucky, even where covered with a thin layer of sand.
Shuey made some field notes and adjusted the placement of the seven flags on the property signifying the landward extent of jurisdictional wetlands at those points. He then connected the flags to delineate an adjusted jurisdictional wetlands boundary line.
As indicated by Shuey's field notes and jurisdictional wetlands boundary delineation, Shuey adjusted the first two flags towards the river, the first by 26 feet and the second by 15 feet; he adjusted the next five flags landward, the third by 21 feet, the fourth by 17 feet, the fifth by 28 feet, the sixth by 14, and the seventh by 8 feet; he also moved the seventh flag upriver by 5 feet. Generally, Shuey moved the boundary line closer to the river on the downriver side of the property and away from the river on the upriver side. As a result, the sweet gum trees no longer were within the jurisdictional wetlands,4 and Petitioner had them removed.
Shuey's field notes listed numerous plant species, including water hemlock, dogwood (blue), cephalanthis [sic], Jack-in-the-Pulpit, centella, apios (potato Bear), Boja Maria, Woodwardia, royal fern, and climbing hydrangia [sic] (on sides).
Like Meinecke and Rosenblatt before him, Shuey failed to list either of the wetland species Shuey says prompted him to take soil samples farther upslope. His best explanation for these failures was that the lists were not meant to be exhaustive, but he also characterized the failures as "unfortunate." As will be seen, one of the species--Saururus
cernuus (common name, lizard's tail)--was later listed in answers to interrogatories; the other-osmunda cinnamomea (a/k/a cinnamon fern)--was never mentioned before Shuey's final hearing testimony.
Shuey's notes also indicated mucky mineral soils (2 inches within the first 6 inches), ferns on tussocks, and moisture on the bottom layer of wood chip fill on the property. Except for stating that the climbing hydrangea was "on sides," Shuey's notes did not specify the location of the plants, soils, or moist wood chips on the property.
Shuey's Enforcement Inspection Report prepared in connection with his informal wetlands delineation indicated the presence of: Magnolia virginianica [sic], Liquidambar sturaciflua [sic], and Acer rubrum in the tree canopy; Boja maria cylindrica, Cutica mexicana, Cephalanthis [sic] occidentalis, and Cornus foemina in the understory; and herbaceous Woodwardia
virginica, Arisaema triphylum, Centella spp., and Osmunda regalis. It also indicated the presence of "[v]egetated fern
tussocks/hummocks," which were referred to as "hydrologic indicators," and a "[m]ucky modified mineral layer present, greater than 2' [sic] within the first 6 inches." Shuey's Enforcement Inspection Report also noted: "Vegetation on the property has apparently been cleared since the original inspection of the complaint."
Meinecke visited Petitioner's property again on
April 23, 2001, with DEP Environmental Specialist Pete Slezinski, who manages biological and resource issues in the Rainbow River Aquatic Preserve. However, they traveled by boat and focused on the proposed dock alignment; they did not consider wetland jurisdictional issues on this visit.
DEP's Consolidated Notice of Denial issued on June 4, 2001, stated in part:
Selective removal of both herbaceous and canopy species appeared to have taken place within the wetland area. Mulched vegetation remnants from the removal activity appears to have been spread within the bayhead. The bottom of the mulch layer appeared to be moist. The canopy of the wetland area is dominated by sweet bay (Magnolia virginianica [sic]), an obligate wetland species, red maple (Acer rubrum) and sweet gum (liquidambar styraciflua) which are facultative wet wetland species. The understory within the wetland area contained false nettle (Boja maria cylindrica), water hemlock (Cutica mexicana) and buttonbush (Cepahalanthis [sic] occidentalis) which are obligate wetland species, along with blue dogwood (Cornus foemina) a facultative wet wetland species. Herbaceous and groundcover
species observed within the wetland area were jack-in-the-pulpit (Arisaema triphylum), pennywort (Centella sp.), Virginia chain fern (Woodwardia virginica), which are facultative wet wetland species, along with royal fern (Osmunda regalis), an obligate wetland species. Soil samples taken throughout the wetland area indicated a prevalent mucky mineral layer at least 2 inches thick, and within the first 6 inches. Hyrologic indicators on site include the presence of fern tussocks.
DEP's Consolidated Notice of Denial also stated:
Maps and topographic aerials obtained by the Department show that the property is located on the inside of a bend in the Rainbow River. Because of the project location on the point bar, and its associated lower water velocities, the shoreline experiences higher siltation rates due [to] the deposition of suspended solids as the water slows. It can also be observed from historic aerials that the limits of the wetland area on the property have remained constant since 1972.
Through Shuey's authorship, DEP also responded to Petitioner's discovery interrogatories in this case on the subject of the jurisdictional wetlands delineation. Except as pointed out in subsequent findings, Shuey's testimony supported the interrogatory answers.
Apparently not wanting to stumble into an inadvertent admission that there are two separate wetlands on Petitioner's property, DEP declined to accept Petitioner's requests in several of the interrogatories that, in answering them, DEP "[c]onsider the area upland of the row of bay trees and area water ward [sic]
of the bay trees separately." DEP responded consistently that there was "no justification" to do so since "[t]he wetland area delineated" was "one wetland area."
Shuey testified that he actually does consider different parts of wetlands separately in certain circumstances. For example, in this case, where there was canopy, he considered the canopy vegetation; where the canopy had been cut, he looked at under-story or, if there was no under-story, ground cover; where there was not even any ground cover due to mowing, he looked only at soils. He used different means of analyzing the different areas in the exercise of professional judgment. Shuey's testimony was not always clear as to exactly how he analyzed the different areas so as to arrive at his jurisdictional wetlands delineation.
Asked in Petitioner's interrogatories "whether any portions of Petitioner's property is considered . . . 'inundated' or 'saturated'," DEP responded that the wetlands jurisdictional boundary established by DEP on Petitioner's property was based on the "area [being] considered 'inundated' and 'saturated' to the extent that the area supports water dependent vegetation and has soils which have developed 'Hydric Soil Indicators.'"
Asked in Petitioner's interrogatories for "any records of hydrologic evidence of regular and periodic inundation and
saturation," DEP limited its response to a 1972 topographic map, a 1996 aerial map, and a Soil Survey published in 1979.
Asked in Petitioner's interrogatories to explain how DEP applied "reasonable scientific judgment . . . in evaluating all reliable information," DEP responded that it included within the jurisdictional wetlands land "from the river to where two wetland indicators consistently occurred together, the presence of obligate and facultative wetland plants and soils which had hydric indicators such as the presence of peat soils and/or soils which had a mucky layer or texture." DEP also stated that the 1979 Soil Survey confirmed that soils in the area were "labeled a poorly drained soil unit (Pm-Placid sand)."
Asked to detail its analysis, DEP stated:
Much of the vegetation in the wetland area had been removed by the Petitioner prior to the [sic] any site visits by the Department. Some of the canopy vegetation was removed and virtually all of the under-story and ground cover had been removed. In determining if the area was a wetland the Department was forced to look at the remaining vegetation [in] all three strata and the remains of vegetation (stumps, branches, leaves etc.) plus the soils in determining that this area was a wetland.
A compete species list for the wetland area was not compiled . . .. Only dominant species and species which are crucial to determining the upland edge of the wetland were recorded and/or noted specifically.
Species noted on site or recorded in notes but not included in the Denial include:
At this point in the answer, DEP listed the following plants listed in Florida Administrative Code Rule Chapter 62-340: in the canopy, Quercus laurifolia (laurel oak), Persea palustris (swamp bay), Sabal palmetto (cabbage palm); in the under-story, Cornus foemina (swamp dogwood), Myrica cerifera (wax myrtle); and, as ground cover, Saururus cernuus (lizard's tail). DEP also listed as ground cover Apios americana (groundnut), which is a vine not listed in the Florida Administrative Code but which a wetland plant. (Vines are not listed in Rule 62-340.450 because it can be difficult to determine where they originate.)
DEP stated that it could not answer Petitioner's interrogatory asking for percentages of upland, obligate, facultative wet, and facultative vegetation in the canopy, under- story, and ground cover for two reasons: first, "Petitioner had removed part of the canopy" and "virtually eliminated" the under- story and ground cover (although, DEP maintained, "the dominance of wetland species in an area still can be determined by examination of stumps, vegetation re-sprouts, and the remains of vegetation (branches leaves, etc) which remain"); and, second, no specific cover estimates by strata were taken.
Notwithstanding DEP's answers to interrogatories, Shuey insisted in testimony at final hearing that he did visually estimate percentage of cover in the canopy (although he did not make a note of his estimate) and applied test (b) of Rule 62-
340.300(2) to delineate the wetlands on Petitioner's property. When Petitioner asked at final hearing, Shuey provided an estimate of greater than 80 percent cover of obligate and facultative wetland species in the canopy, at least in the forested area closer to the river, based on recently-cut stumps. Pressed further by questioning by DEP counsel, Shuey increased the estimate to "probably greater than 85%." It was clear from the testimony, but it appears that Shuey meant to also qualify the 85 percent coverage estimate to apply to canopy in the forested part of the wetlands based on recently-cut stumps.
It appears that the recently-cut stumps included in Shuey's canopy cover estimate are the Persea palustris (swamp bay) reintroduced through DEP's interrogatory answers to the list of species in the canopy after having been deleted from earlier lists and replaced by Magnolia virginiana (sweet bay).
As reflected in the previous findings, DEP's interrogatory answer was the first mention of any kind of oak being on the property. This interrogatory answer was given after Petitioner took the position that there were several large laurel oaks (Quercus hemisphaerica) on the property. After the interrogatory answer, Petitioner took the position that Shuey used the incorrect scientific name in the interrogatory answer's listing of the canopy vegetation in the wetland area. In testimony at final hearing, Shuey acknowledged that the
interrogatory answer's listing of the canopy vegetation in the wetland area was in error in giving laurel oak as the common name of Quercus laurifolia; he testified that he meant to list swamp bay as the common name for that species. Actually, Quercus laurifolia is an incorrect scientific name; swamp bay is one of the common names for the facultative wetland species, Quercus
laurifolia Michauxii. (Another common name for that species is swamp chestnut oak.) Perhaps misled by Shuey's errors, Petitioner also erred in contending that swamp laurel oak cannot be used as either an obligate or a facultative wetland species under test (b) because Quercus laurifolia is not listed under Rule 62-340.450. Quercus laurifolia is not listed, but Quercus laurifolia Michauxii is.
In addition to the confusion in naming the different oak species, it also is not clear from the evidence whether the oaks considered by Shuey in estimating canopy cover percentages were laurifolia Michauxii or hemisphaerica. Shown photographs of a number of oak trees on the property, Shuey was unable to identify the species with any certainty.
As previously indicated, it was not clear that Shuey testified to a canopy cover percentage for the delineated wetlands area as a whole (as opposed to just the forested portion). But Shuey clearly conceded that, if the trees he identified as laurifolia Michauxii were actually hemisphaerica,
the percentage of obligate and facultative wetland species in the canopy of the delineated wetlands area as a whole would be less than 80 percent.
As reflected in previous findings, DEP's interrogatory answer was the first mention of lizard's tail being on the property. No lizard's tail or cinnamon fern was evident in any of the photographs placed in evidence by Petitioner. But these photographs were taken by Petitioner in February 2001, well after DEP's site visits; and the evidence was that Petitioner now regularly mows the area upland of the line of bay trees on his property. Even if any lizard's tails or cinnamon ferns were there at the time of the photographs, it is not clear whether the photographs would have been taken close enough or with the necessary resolution to detect these plants, depending on their growth stage.
As previously indicated, it appears that in applying test (b) Shuey may have estimated canopy coverage based on recently-cut stumps; he also may have "dropped strata" in places where canopy trees had been cut or were nonexistent so as to estimate cover percentages for lower strata. In places where all vegetation was removed and mowed, it appeared that he relied on soil characteristics.
Shuey's testimony at final hearing appears to have been the first explicit notice to Petitioner that DEP also applied
test (d) of Rule 62-340.300(2) to delineate the wetlands on Petitioner's property (although it is possible to glean from a fair reading of the interrogatory answers that DEP was not only relying on test (b)). Although Shuey's testimony was not clear, it appears that he may have used test (b) for the part of the wetlands closer to the river and test (d) for the part landward of the line of bay trees.
It appears that the indicators DEP variously referred to as vegetated or fern tussocks or hummocks and relied on under test (d) were essentially thick root mats. Like elevated patches of soil that allow plants to grow in places frequently inundated or saturated, these elevated root mats similarly allow plants to survive those conditions.
It was not clear from the evidence exactly where Shuey saw these vegetated or fern tussocks and hummocks. Shuey conceded that they did not exist throughout the area DEP delineated as jurisdictional wetlands on Petitioner's property. Neither Shuey, Meinecke, or Rosenblatt took any pictures to verify where these indicators were on the property or even specifically noted or reported exactly where they were found. Although Shuey maintained that some of these indicators were seen landward of the line of bay trees on the property, it is not clear from the evidence whether they actually were found on that part of the property.
Shuey testified at final hearing that, contrary to the interrogatory answers, he did not use the 1972 topographic map or any aerial photography in delineating jurisdictional wetlands on Petitioner's property and did not see how they would be useful in this wetlands delineation. He thought their only usefulness in connection with this case might have been to determine whether any wetland vegetation had been removed.
DEP also re-called William Vorstadt on the subject of DEP's jurisdictional wetlands delineation on Petitioner's property. Vorstadt visited the site twice, the second time in January 2002, and concurred with Shuey's jurisdictional boundary line. Vorstadt took two sample soil borings, one between the boundary line and the line of bay trees and another landward of the boundary line. Both samples revealed wet, hydric soils which Vorstadt considered to be hydrologic indicators of inundation.
At the time of Vorstadt's visits, the area between the line of bay trees and the boundary lined had been well-mowed in the vicinity of the flags Shuey placed on the property. Vorstadt was unable to determine much about the vegetation that might have been there; nor could he determine much about vegetation that might have been there in the past.
There was no evidence that any holes were dug at any time by any DEP personnel to establish the level of the water
table on Petitioner's property. There was no evidence to establish the seasonal high water table on the property.
Petitioner contended that development on lots upriver and downriver from Petitioner's property altered the hydrology on Petitioner's property so that hydric soils can no longer form or be sustained, and wetland vegetation adapted for life in saturated soils no longer can be supported there. But, except with respect to narrow strips of land along the boundary lines between Petitioner's property and the adjoining lots upriver and downriver, there was no evidence whatsoever to prove Petitioner's contention in this regard. (In addition, the evidence was clear that there are at least some jurisdictional wetlands on Petitioner's property.)
It appeared from photographs introduced into evidence by Petitioner that relatively narrow strips of land along the boundary lines between Petitioner's property and the adjoining lots upriver and downriver are higher than the rest of Petitioner's property, giving the impression of ridges along the property boundary lines, especially the upriver boundary line. These ridges approximately coincide with the land upriver of the seventh flag and downriver of the first flag placed on the property during DEP's informal wetlands delineations.
Petitioner suggested that these ridges were formed when the neighboring property owners filled their lots as part of
development and that fill material spilled over onto the property Petitioner purchased. Shuey agreed in testimony that, if the ridges were the result of fill that altered the character of the land, so as to no longer be periodically inundated and saturated, and no longer support wetland plant species, the land no longer would be considered jurisdictional wetlands. However, while it appears that the upriver ridge may well have been part of a berm along that boundary line, there was no proof as to how the smaller apparent ridge on the downriver side came to be. In addition, it was not clear from the evidence whether the ridges should be included in the jurisdictional wetlands on Petitioner's property.
Petitioner attempted to utilize various aerial photographs to establish that his property had no jurisdictional wetlands because they showed only evergreen trees. But the only witness who spoke to the aerials was Shuey; and, while acknowledging his inability to discern wetlands from the aerials, Shuey refused to agree that the aerials showed only evergreen trees or that they showed only non-wetlands on Petitioner's property. Besides, as previously found, it was clear that there are at least some jurisdictional wetlands on Petitioner's property. Shuey testified persuasively that the aerials are of little or no use in determining where to draw the line between jurisdictional wetlands and uplands on Petitioner's property.
Petitioner introduced in evidence several exhibits to establish that in late 1993 the Southwest Florida Water Management District (SWFWMD) delineated jurisdictional wetlands on the adjacent lot upriver from Petitioner's (the Thurman lot) and on a lot four lots downriver from Petitioner's property (the Grant lot). Petitioner contended that the landward extent of those wetlands delineations "approximated Control Elevation A, the top of the bank of the river which approximates the 31 foot contour line known as Control Elevation A the 10 year flood line." But the exhibits themselves are considered insufficient to prove all of Petitioner's contentions, and Petitioner introduced no other testimony or evidence to explain those wetlands delineations (except the testimony of Shuey, who refused to agree with all of Petitioner's contentions). It is not even clear from the evidence exactly where Control Elevation A, the
31-foot contour line, and 32-foot contour line are in relation to DEP's jurisdictional wetlands boundary on Petitioner's property. In addition, the relevance of the Grant wetlands delineation four lots downriver is questionable; it seems quite possible that site-specific conditions of Petitioner's property, which is at the center of the inside of a bend in the river, would result in a different wetlands delineation. As for the Thurman lot, it appears from some of the exhibits that Petitioner's property (at least on the upriver side of the lot) is lower than the Thurman
lot; and the apparent 31-foot contour line sweeps significantly farther landward as it approaches and enters Petitioner's property. It seems that this might explain why wetlands on Petitioner's lot could be larger than those on the Thurman lot.
At best, these exhibits raised suspicions that SWFWMD might have approved a wetlands jurisdictional boundary that approximated Control Elevation A (approximately the 31-foot contour line); if so, it also is possible that those delineations were done in error, or that the wetlands delineation methodology used by SWFWMD in 1993 was somewhat different from the current methodology codified in statute and rule, or both.5
Petitioner also introduced numerous exhibits relating to the construction of the canoe launch ramp, boathouse, and observation deck facilities at Rainbow Springs State Park near the river's head. Given the greater distance from Petitioner's property, these exhibits are even less relevant than the exhibits relating to the Grant lot. As Shuey testified, wetlands jurisdictional delineations are site-specific. In addition, like the Grant and Thurman lot exhibits, the State Park exhibits themselves are considered insufficient to prove all of Petitioner's contentions, and Petitioner introduced no other testimony or evidence to explain them (except the testimony of DEP witnesses, who refused to agree with all of Petitioner's contentions). At best, these exhibits raised suspicions that
SWFWMD might have approved a wetlands jurisdictional boundary at the State Park that approximated either the shoreline or Control Elevation A (approximately the 31-foot contour line) and that DEP's facilities at the State Park might have been built in part on jurisdictional wetlands.
Similarly, Petitioner introduced several generalized topographic and soils maps intended to prove that there are no wetlands on Petitioner's property, or perhaps that Petitioner's property is identical to the Grant and Thurman lots and the State Park property. But these generalized maps were insufficient to prove Petitioner's contentions. The maps themselves are considered insufficient to prove all of Petitioner's contentions, and Petitioner introduced no other testimony or evidence to explain them (except the testimony of Shuey, who refused to agree with all of Petitioner's contentions). Petitioner contended that DEP used one of the topographic maps to support a favorable wetlands delineation in its application to SWFWMD for a permit for the facilities at the State Park. But it actually appears that the map was only used as a location map.
Proposed Single-Family Dock
Neither party introduced into evidence either Petitioner's consolidated ERP/consent of use application or DEP's RAI. As a result, it cannot be determined from the evidence precisely what Petitioner has proposed or what additional
documentation DEP requested. No cross-sections or plan views of the proposed project were in evidence.
The only document submitted into evidence by Petitioner to illustrate his proposed dock structure was a partial copy of Petitioner's correspondence to DEP dated May 21, 2001. The letter referred to four attached drawings, but only one was attached to Petitioner's Exhibit 3B. The drawing included in the exhibit was not drawn "to-scale." In addition, it is unclear from the drawing whether the 160 square foot "terminal platform" included the four-foot walkway adjacent to the platform.
As Petitioner suggested, the square footage of the terminal platform could be clarified in a final order. A more serious matter is the dock alignment. When the proposed dock is superimposed on DEP's drawing showing the existing knot grass beds adjacent to Petitioner's property, the proposed dock appears to cross and terminate over an area that is either an RPA 1 (knot grass beds "of the highest quality and condition for that area") or an RPA 2 (an area where the knot grass is "in transition with either declining resource protection area 1 resources or new pioneering resources within resource protection area 3"). See Florida Administrative Code Rule 18-20.003(54)-(55) for definitions of RPA 1 and RPA 2.
Petitioner contended that his proposed dock alignment actually crosses and terminates over an area "characterized by
the absence of any significant natural resource attributes" so as to be neither an RPA 1 nor an RPA 2, but rather an RPA 3. See
Florida Administrative Code Rule 18-20.003(56) for definition of RPA 3. There was evidence of some hydrilla (an aquatic plant not considered "significant" but rather a harmful, invasive, exotic nuisance plant) in the vicinity of his proposed dock alignment between the water's edge and the knot grass beds, but Petitioner's evidence did not prove that the knot grass in the vicinity of Petitioner's proposed dock alignment is not continuous--i.e., that there is a clear path or channel between two separate beds of knot grass; to the contrary, the evidence was that the knot grass bed in the river adjacent to Petitioner's property is one continuous bed, mostly RPA 1 and some RPA 2. In addition, the evidence was that at least some of the area of declining knot grass in the vicinity of Petitioner's proposed dock alignment was thicker, more vigorous, and of better quality in the not-too-distant past. It is not clear from the evidence when it was thinned out.
In addition, citing Joint Prehearing Statement of Undisputed Facts 29 and 30, Petitioner contended that his dock application fell victim to an invalid DEP policy that all resources in an aquatic preserve are "significant" so as to be either RPA 1 or RPA 2. The evidence failed to prove that DEP has such a policy. Indeed, Joint Prehearing Statement of Undisputed
Facts 29 and 30 are to the contrary. While there may be room for Petitioner to quarrel with the interpretation of the RPA 1 and RPA 2 definitions given by one of DEP's witnesses (Pete Slezinski, who thought that any area having native vegetation or animals would be either an RPA 1 or RPA 2), Petitioner did not dispute that knot grass beds have "significant natural resource attributes" so as to qualify as RPA 1 or RPA 2.
Petitioner also contended that he was singled out for denial of his proposed dock--i.e., that his would be the first and only dock on the Rainbow River to be denied a permit. Other than some aerial photographs indicating that a neighbor's dock may terminate in the vicinity of a spring head, Petitioner introduced no evidence whatsoever about the circumstances of any dock on the river except for DEP canoe launch ramp, boathouse, and observation deck facilities at the Rainbow Springs State Park near the head of the Rainbow River.
The aerial photographs were inconclusive as to how close the neighbor's dock was to the spring head. There also was no evidence as to whether the neighbor's dock was permitted under the DEP rules now in effect or, if so, any particulars of the neighbor's dock application.
Petitioner introduced a great deal of evidence concerning the DEP facilities at the State Park upriver. There were numerous photographs, some before construction of the
facilities and many more during and after construction. There also was testimony from Slezinski, who had raised questions about initial plans for construction of the facilities. But Slezinski testified to his understanding that steps were taken in response to his concerns so as not to place facilities over any RPA 1 or RPA 2. Viewing the photographs, he was unable to conclude, and it is not clear, that any facilities were in fact placed over any RPA 1 or RPA 2 at the State Park.
Petitioner also contended that DEP's denial of his dock application is a punitive measure, not supported by the facts, to deny him water access to his property. As evidence, Petitioner cited DEP's preliminary evaluation contained in its letter dated May 9, 2001, which cited some general requirements for docks in an aquatic preserve but did not specify any of the special requirements for docks over RPA 1 and RPA 2. But the preliminary evaluation contained a proposed dock alignment obviously intended to avoid RPA 1 and RPA 2 to the extent possible. The preliminary evaluation suggested that DEP would grant a modified application (minus mooring piling) in the proposed alignment meeting all of the general requirements.
Petitioner attempted to modify his application by letter dated May 21, 2001, to address the general requirements cited in the preliminary evaluation, but he declined DEP's suggested dock alignment. As a result, in considering the
modified application, DEP was constrained to apply the special requirements for docks in an RPA 1 or RPA 2. Contrary to Petitioner's contentions, these actions by DEP did not prove any intent to punish Petitioner.
Finally, Petitioner contended that certain special rules for docks over RPA 1 or RPA 2--namely, those requiring minimum spacing between deck planks and requiring decking to be elevated--should not be applied because the knot grass in the river adjacent to Petitioner's property is "emergent," i.e., it grows from the bottom to and above the surface of the river and, Petitioner contends, "does not need the same concessions to assure . . . light penetration for the continued survival of the plants." Besides being essentially a rule challenge, a matter addressed in the Conclusions of Law, Petitioner introduced no evidence of the facts he alleges in support of his contention. To the contrary, Petitioner called Slezinski on the subject, and Slezinski attempted to explain that, while knot grass is "emergent," much of the plant is below the water surface and
provides the functions of submerged aquatic vegetation. It would follow, and Petitioner put on no evidence to disprove, that knot grass also would have some of the needs of submerged aquatic vegetation for light penetration.
CONCLUSIONS OF LAW
Jurisdiction
This is an administrative proceeding under Sections
120.569 and 120.57(1) challenging DEP's intent to deny Petitioner's applications for an ERP and Sovereign Lands Consent Of Use. But the posture of the case has become confused as a result of its procedural history. As reflected in the Preliminary Statement and Procedural Background, Petitioner dropped his applications for permits for activities other than his proposed single-family dock during preliminary review. It would seem that DEP lost jurisdiction over those portions of the application at that point in time. But while dropping those portions of his application, Petitioner also took the position that he wanted to challenge the informal wetlands delineations DEP performed while investigating a complaint on illegal filling of wetlands on the property; yet, at the same time, Petitioner was adamant during preliminary review that he was not seeking a formal determination of the landward extent of the wetlands on his property under Section 373.421(2) and Rule 62-343.040, which set out the exclusive procedure for seeking a wetlands delineation. It would seem that DEP should have insisted at that point in time that Petitioner file an appropriate request under Section 373.421(2) and Rule 62-343.040 if he wanted to delineate wetlands on his property. Instead of simply ignoring the dropped
portions of Petitioner's application, DEP's Consolidated Notice of Denial addressed Petitioner's entire application, including the portion seeking permission to dredge and fill; in response to the position being taken by Petitioner, DEP's denial of permission to dredge and fill included an explanation why DEP claimed jurisdictional wetlands on the property. While including this explanation, the Consolidated Notice of Denial did not purport to delineate wetlands under Section 373.421(2) and Rule 62-343.040, since no such delineation was requested by Petitioner. As reflected in the Preliminary Statement and Procedural Background, while Petitioner initially petitioned for hearing on the entire Consolidated Notice of Denial, he later again confirmed in this proceeding that he was dropping his applications for permits for activities other than his proposed single-family dock; at the same time, Petitioner continued to take the position that he wanted to challenge DEP's informal wetlands delineations. At final hearing, the parties addressed both the proposed single-family dock denial and the informal wetlands delineations.
It is concluded that at this time, if not also before DEP's Notice of Consolidated Denial, DEP no longer has jurisdiction over withdrawn portions of Petitioner's application or Petitioner's challenge to DEP's informal wetlands delineations. (To the extent that Petitioner may be seeking a
declaratory statement under Section 120.565, this proceeding cannot be converted into a proceeding in part seeking a declaratory statement. Compare Section 120.565 with Sections
120.569 and 120.57(1).6) Nonetheless, and in an abundance of caution in view of DEP's Notice of Consolidated Denial and the parties' presentation of wetlands delineation issues in this case, those issues will be addressed in this Recommended Order.7
As for Petitioner's application for an ERP and Sovereign Lands Consent Of Use for a proposed single-family dock, DEP and DOAH clearly have jurisdiction under Sections 120.569 and 120.57(1).
Burden of Proof
Because of the manner in which the issue of the landward extent of jurisdictional wetlands on Petitioner's property arose and has been presented in this case, it would be unclear which party would have the burden of proof if DEP assumed jurisdiction over the issue. Normally, in an application proceeding, the agency's jurisdiction is conceded. Had this case arisen as an enforcement proceeding, the burden of proof, including the burden of proving jurisdiction, would be on DEP. See Balino v. Department of Health and Rehabilitative Services,
348 So. 2d 349 (Fla. 1st DCA 1977)("burden of proof, apart from statute, is on the party asserting the affirmative of an issue before an administrative tribunal"). See also Dept. of
Environmental Reg. v. Romaine, 10 FALR 3496 (DER 1988)(DER had burden to prove landward extent of surface waters of the state in enforcement action against alleged illegal bulkhead). Normally, it would be clear in an application proceeding that Petitioner, as applicant, has the burden to prove entitlement. See Dept. of Transp. v. J.W.C. Co., 396 So. 2d 778 (Fla. 1st DCA 1981). But in the posture of this case, it would be unclear whether Petitioner would have the burden, as permit applicant, to prove that alleged uplands are outside DEP's jurisdiction, or whether DEP would have the burden, as the party seeking to assert jurisdiction. It also is not clear which party would have the burden of proof in an administrative proceeding brought by a petitioner under Section 373.412(2) and Rule 62-340.040.
As for Petitioner's application for an ERP and Sovereign Lands Consent Of Use for a proposed single-family dock, Petitioner clearly has the burden to prove entitlement. See Dept. of Transp. v. J.W.C. Co., supra.
Jurisdictional Wetlands Delineation
80. Rule 62-340.200(19) provides:
"Wetlands," as defined in subsection 373.019(17), F.S., means those areas that are inundated or saturated by surface water or ground water at a frequency and a duration sufficient to support, and under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soils. Soils present in wetlands generally are classified as hydric or
alluvial, or possess characteristics that are associated with reducing soil conditions. The prevalent vegetation in wetlands generally consists of facultative or obligate hydrophytic macrophytes that are typically adapted to areas having soil conditions described above. These species, due to morphological, physiological, or reproductive adaptations, have the ability to grow, reproduce or persist in aquatic environments or anaerobic soil conditions. Florida wetlands generally include swamps, marshes, bayheads, bogs, cypress domes and strands, sloughs, wet prairies, riverine swamps and marshes, hydric seepage slopes, tidal marshes, mangrove swamps and other similar areas. Florida wetlands generally do not include longleaf or slash pine flatwoods with an understory dominated by saw palmetto. (Emphasis added.)
Rule 62-340.100 requires that DEP first attempt to delineate the landward extent of wetlands "without quantitative sampling." "If this cannot be accomplished, the quantitative methods in paragraph 62-301.400(1)(c), F.A.C., shall be used unless the applicant or petitioner and regulating agency agree, in writing, on an alternative method." Id. Rule 62-340.300 states that the landward extent of wetlands "shall be determined by applying reasonable scientific judgment to evaluate the dominance of plant species, soils, and other hydrologic evidence of regular and periodic inundation and saturation as set forth below." If the landward extent of wetlands is not easily identified and delineated by direct application of the definition
of wetlands in Rule 62-340.200(19), it "shall include" any of the areas described in subparagraphs (a)-(d) of Rule 62-340.300(2).
As reflected in the findings of fact, DEP took the position that it used tests set out in Rule 62-340.300(2) to determine the landward extent of wetlands on Petitioner's property. Use of those tests implies that DEP did not think that the landward extent of wetlands is easily identified and delineated by direct application of the definition of wetlands in Rule 62-340.200(19).
As reflected in the findings of fact, DEP initially represented that it was using the description in subparagraph (b) of Rule 62-340.300(2) to delineate the wetlands on Petitioner's property. But that "test" requires determination of those "areas where the areal extent of obligate or facultative wet plants, or combinations thereof, in the appropriate stratum is equal to or greater than 80 percent of all the plants in that stratum, excluding facultative plants . . . ."8 Assuming that the canopy was the appropriate stratum, the evidence was not clear whether this test justified any wetlands delineation on Petitioner's property. Based on the evidence, it is questionable whether DEP actually made vegetative cover percentage estimates on the property. If so, it appears from the evidence that any canopy cover estimate of 80 percent or more was based on recently-cut swamp bay stumps in the forested area. Even using the recently-
cut stumps, the evidence was fairly clear that the required 80 percent or more canopy cover was present for the delineated wetlands area as a whole only if the oaks on the property were Quercus laurifolia Michauxii, which was not clear from the evidence. There was no evidence of a cover percentage estimate for any other stratum on the property. On the other hand, Petitioner provided no cover estimate at all.
Later, during the pendency of these administrative proceedings, DEP represented that it also was using the description in subparagraph (d) of Rule 62-340.300(2) to delineate the wetlands on Petitioner's property. But that "test" requires: the presence of "one or more of the hydrologic indicators listed in section 62-340.500, F.A.C."; the presence of "hydric soils, as identified using the U.S.D.A.-S.C.S. approved hydric soil indicators for Florida"; and "reasonable scientific judgment . . . that inundation or saturation is present sufficient to meet the wetland definition of subsection 62- 340.200(19), F.A.C." In addition, the rule states: "These areas shall not extend beyond the seasonal high water elevation."
While there was solid evidence of hydric soils throughout the area DEP delineated as wetlands on Petitioner's property, it was not clear from the evidence that any of the hydric soil indicators listed in Rule 62-340.500 were present landward of the bay trees. There were vegetated or fern tussocks
or hummocks, which are listed in paragraph (12) of the Rule, but it is not clear that they were observed landward of the sweet bay trees. The only possible hydrologic data, listed in paragraph
(8) of the Rule, would have had to be the "direct observation of inundation or saturation which support the presence of water to an extent consistent with the provisions of the definition of wetlands and the criteria within this Rule, including evidence of a seasonal high water table at or above the surface according to methodologies set forth in Soil and Water Relationships of Florida's Ecological Communities (Florida Soil Conservation Staff 1992)." But the evidence concerning this form of hydrologic data was not clear. In addition, since there was no evidence as to the seasonal high water table, it was not clear, as required under "test" (d), that a delineation landward of the sweet bay trees would "not extend beyond the seasonal high water elevation."
Ultimately, in its Proposed Recommended Order, DEP explicitly took the position for the first time9 that Rule 62- 340.300(3) also supported its informal wetlands delineations by providing that DEP was not restricted to the tests in paragraph
of the Rule. Paragraph (3) states:
If the vegetation or soils of an upland or wetland area have been altered by natural or man-induced factors such that the boundary between wetlands and uplands cannot be delineated reliably by use of the methodology
in subsection 62-340.300(2), F.A.C., as determined by the regulating agency, and the area has hydric soils or riverwash, as identified using standard U.S.D.A.- S.C.S. practices for Florida, including the approved hydric soil indicators, except where the hydric soil is disturbed by a nonhydrologic mechanical mixing of the upper soil profile and the regulating agency establishes through data or evidence that hydric soil indicators would be present but for the disturbance, then the most reliable available information shall be used with reasonable scientific judgment to determine where the methodology in subsection 62- 340.300(2), F.A.C., would have delineated the boundary between wetlands and uplands. Reliable available information may include, but is not limited to, aerial photographs, remaining vegetation, authoritative site-specific documents, or topographical consistencies.
This subsection shall not apply to any area where regional or site-specific permitted activity, or activities which did not require a permit, under sections 253.123 and 253.124, F.S. (1957), as subsequently amended, the provisions of Chapter 403, F.S. (1983), relating to dredging and filling activities, Chapter 84-79, Laws of Florida, and Part IV of Chapter 373, F.S., have altered the hydrology of the area to the extent that reasonable scientific judgment, or application of the provisions of section 62-340.550, F.A.C., indicate that under normal circumstances the area no longer inundates or saturates at a frequency and duration sufficient to meet the wetland definition in subsection 62-340.200(19), F.A.C.
This subsection shall not be construed to limit the type of evidence which may be used to delineate the landward extent of a wetland under this chapter when an activity violating the regulatory requirements of sections 253.123 and 253.124, F.S. (1957), as
subsequently amended, the provisions of Chapter 403, F.S. (1983), relating to dredging and filling activities, Chapter 84- 79, Laws of Florida, and Part IV of Chapter 373, F.S., has disturbed the vegetation or soils of an area.
DEP's use of this rule to extend the jurisdictional wetlands line landward of the line of sweet bay trees depended on Allen Shuey's testimony that there were lizard's tails and cinnamon ferns in the area at the time of his first visit. To use Shuey's own words, it is "unfortunate" that none of these alleged observations were recorded in any field notes, inspection reports, or any other documentation (other than, as to lizard's tails at least, answers to interrogatories propounded in this case). In any event, while under (3)(c) of the rule, DEP may not be limited in the type of evidence which it can use to delineate wetlands on Petitioner's property, it is not clear that DEP utilized "the most reliable available information," as required by (3)(a). In addition, under (3)(b) of the rule, there was insufficient evidence from which to determine whether hydrology along the property boundary with adjacent lots has been altered so as to exclude the narrow strips there from any wetland delineation on Petitioner's property.
While Petitioner inquired and was given information concerning Rule 62-340.550 on how to refute a wetland delineation using the methodology in the rules using either reliable
hydrologic records or site specific hydrologic data, he presented no expert or otherwise competent, substantial evidence of his own. At best, he was able to demonstrate that additional information should be obtained and used before the landward extent of his wetlands can be finally determined with precision. But Petitioner himself declined to request a formal wetlands delineation that might have provided additional information.
Proposed Single-Family Dock
Rule 18-20.003 includes the following definitions:
"Resource Protection Area (RPA) 1" -- Areas within the aquatic preserves which have resources of the highest quality and condition for that area. These resources may include, but are not limited to corals; marine grassbeds; mangrove swamps; salt-water marsh; oyster bars; archaeological and historical sites; endangered or threatened species habitat; and, colonial water bird nesting sites.
"Resource Protection Area 2" -- Areas within the aquatic preserves which are in transition with either declining resource protection area 1 resources or new pioneering resources within resource protection area 3.
"Resource Protection Area 3" -- Areas within the aquatic preserve that are characterized by the absence of any significant natural resource attributes.
89. Rule 18-20.004(5) provides:
STANDARDS AND CRITERIA FOR DOCKING FACILITIES
All docking facilities, whether for private residential single-family docks, private residential multi-slip docks, or commercial, industrial, or other revenue
generating/income-related docks or public docks or piers, shall be subject to all of the following standards and criteria.
No dock shall extend waterward of the mean or ordinary high water line more than
500 feet or 20 percent of the width of the waterbody at that particular location, whichever is less.
Certain docks fall within areas of significant biological, scientific, historic or aesthetic value and require special management considerations. The Board shall require design modifications based on site specific conditions to minimize adverse impacts to these resources, such as relocating docks to avoid vegetation or altering configurations to minimize shading.
Docking facilities shall be designed to ensure that vessel use will not cause harm to site specific resources. The design shall consider the number, lengths, drafts and types of vessels allowed to use the facility.
In a Resource Protection Area 1 or 2, any wood planking used to construct the walkway surface of a facility shall be no more than eight inches wide and spaced no less than one-half inch apart after shrinkage. Walkway surfaces constructed of material other than wood shall be designed to provide light penetration which meets or exceeds the light penetration provided by wood construction.
In a Resource Protection Area 1 or 2, the main access dock shall be elevated a minimum of five (5) feet above mean or ordinary high water.
Existing docking facilities constructed in conformance with previously applicable rules of the Board and in conformance with applicable rules of the Department are authorized to be maintained for continued use subject to the current requirements of Rule 18-21, Florida Administrative Code. Should more than 50 percent of a nonconforming structure fall into a state of disrepair or be destroyed as a result of any natural or manmade force, the entire structure shall be
brought into full compliance with the current rules of the Board. This shall not be construed to prevent routine repair.
Private residential single-family docks shall conform to all of the following specific design standards and criteria.
Any main access dock shall be limited to a maximum width of four (4) feet.
The dock decking design and construction will ensure maximum light penetration, with full consideration of safety and practicality.
The dock will extend out from the shoreline no further than to a maximum depth of minus four (-4) feet (mean low water).
When the water depth is minus four (-4) feet (mean low water) at an existing bulkhead the maximum dock length from the bulkhead shall be 25 feet, subject to modifications accommodating shoreline vegetation overhang.
Wave break devices, when requested by the applicant, shall be designed to allow for maximum water circulation and shall be built in such a manner as to be part of the dock structure.
Terminal platform size shall be no more than 160 square feet.
If a terminal platform terminates in a Resource Protection Area 1 or 2, the platform shall be elevated to a minimum height of five
(5) feet above mean or ordinary high water. Up to 25 percent of the surface area of the terminal platform shall be authorized at a lower elevation to facilitate access between the terminal platform and the waters of the preserve or a vessel.
Docking facilities in a Resource Protection Area 1 or 2 shall only be authorized in locations having adequate existing water depths in the boat mooring, turning basin, access channels, and other such areas which will accommodate the proposed boat use in order to ensure that a minimum of one foot clearance is provided between the deepest draft of a vessel and the top of any submerged resources at mean or ordinary low water; and
Dredging to obtain navigable water depths in conjunction with private residential, single-family dock applications is strongly discouraged.
Private residential multi-slip docks shall conform to all of the following specific design standards and criteria.
The area of sovereignty, submerged land preempted by the docking facility shall not exceed the square footage amounting to ten times the riparian waterfront footage of the affected waterbody of the applicant, or the square footage attendant to providing a single dock in accordance with the criteria for private residential single-family docks, whichever is greater. A conservation easement or other similar legally recorded use restriction must be placed on the riparian shoreline, used for the calculation of the 10:1 threshold, to conserve and protect shoreline resources and subordinate or waive any further riparian rights of ingress and egress for additional docking facilities.
Docking facilities and access channels shall be prohibited in a Resource Protection Area 1 or 2, except as allowed pursuant to Subsection 258.42(3), Florida Statutes, while dredging in Resource Protection Area 3 shall be strongly discouraged.
Docking facilities shall not terminate in a Resource Protection Area 1 or 2; however, main access docks will be allowed to pass through a Resource Protection Area 1 or 2, to reach an acceptable Resource Protection Area 3, when reasonable assurances are provided that such crossing will generate no significant negative environmental impact.
Main access docks and connecting or cross walks shall not exceed six (6) feet in width.
Terminal platforms shall not exceed eight (8) feet in width.
Finger piers shall not exceed three (3) feet in width, and 25 feet in length.
If requested by the applicant, pilings may be used to provide adequate mooring capabilities.
The provisions of Rule 18-20.004(5)(d) shall also apply to private residential multi-slip docks.
Commercial, industrial and other revenue generating/income related docking facilities shall conform to all of the following specific design standards and criteria.
Docking facilities shall be authorized only in locations having adequate circulation and existing water depths in the boat mooring, turning basin, access channels, and other such areas which will accommodate the proposed boat use to ensure that a minimum of one foot clearance is provided between the deepest draft of a vessel and the bottom of the waterbody at mean or ordinary low water.
Docking facilities and access channels shall be prohibited in a Resource Protection Area 1 or 2, except as allowed pursuant to Sections 258.42(3), Florida Statutes; while dredging in Resource Protection Area 3 shall be strongly discouraged.
Docking facilities shall not terminate in Resource Protection Area 1 or 2; however, main access docks will be allowed to pass through Resource Protection Area 1 or 2, to reach an acceptable Resource Protection Area 3, when reasonable assurances are provided that such crossing will generate no significant negative environmental impact.
Docking facilities shall be sited to ensure that boat access routes avoid injury to marine grassbeds or other aquatic resources in the surrounding areas.
Expansion of existing facilities shall take precedence over approval of new facilities.
Use of upland dry storage shall take precedence over the creation of new wet slips.
Marinas shall not be sited within state designated manatee sanctuaries.
In any areas with known manatee concentrations, manatee awareness signs or informational displays shall be specified as part of a wetland resource or environmental resource permit for the facility.
Petitioner's case primarily raised questions as to DEP's evidence that his proposed dock was aligned over RPA 1 and RPA 2. Petitioner presented no expert evidence and little otherwise competent, substantial evidence of his own sufficient to prove entitlement to issuance of the ERP and Sovereign Lands Consent of Use for his proposed dock.
Petitioner also failed to prove that he was singled out for punishment or that the statutes and rules were applied more leniently for DEP's facilities at the State Park. Even if the latter were proven, it would not entitle Petitioner to issuance of a permit in violation of those statutes and rules.
Finally, Petitioner questioned the applicability of some of the special rules for docks over RPA 1 and RPA 2, arguing that they should not apply to knot grass. However, the rules themselves do not differentiate between emergent and submergent aquatic plants. In addition, the evidence was that both kinds of aquatic plants would benefit from the special RPA rules.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that DEP a final order denying Petitioner's application for an ERP and Sovereign Lands Consent of Use for his proposed single-family dock and declining to rule on the jurisdictional wetlands delineation issue for lack of jurisdiction.
Jurisdiction is reserved for ten days to rule on the pending motions, if necessary.
DONE AND ENTERED this 17th day of May, 2002, in Tallahassee, Leon County, Florida.
J. LAWRENCE JOHNSTON Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 2002.
ENDNOTES
1/ Unless otherwise specifically indicated, all statute citations are to the 2001 codification of the Florida Statutes, and all rule citations are to the current version of the Florida Administrative Code.
2/ The notes actually appear to say "Ray" instead of bay, but it can be inferred that the intent was to note "bay trees."
3/ Initially noting Persea palustris, or (common name swamp bay) in the typewritten report, Meineke struck the reference by hand and inserted Magnolia virginianica [sic]. It is not clear from the evidence when this change was made or why. Petitioner suggested that Meinecke initially misidentified sweet bay (Magnolia virginiana as swamp bay (Persea palustris), but it is possible that sweet bay was added to the listing and that swamp bay deleted because they were just stumps. See Finding 44, infra.
4/ Shuey thought but could not be sure whether the sweet gums were outside the new boundary line; on the other hand, Petitioner had a clear and more persuasive recollection on this point.
5/ Petitioner contended that the delineation on his property should match the late 1993 delineations on the Grant and Thurman lots because that was the intent of Section 373.421 and Rule 62-
340.100. But, at the same time, the perceived need for uniformity that motivated the current statute and rules also implies that not all delineations being performed in 1993 and prior years were being performed as intended by the uniform methodology.
6/ Even if Rondolino filed a petition for a declaratory statement under Section 120.565, it is not clear that such a proceeding would be appropriate for resolution of the factual disputes which would appear to be involved in determination of the landward extent of wetlands on Rondolino's property. Cf. Great House of Wine, Inc. v. Dept. of Bus. and Prof. Reg., etc., 752 So. 2d 728 (Fla. 3d DCA 2000)(declaratory statement procedure "inadequate to properly address the mixed questions of fact and law which must necessarily be resolved for complete consideration of the constitutional issues raised").
7/ Even if DEP concurs that it no longer has jurisdiction over the wetlands issues, the findings and conclusions may assist the parties in their future dealings.
8/ The rule also requires at least one of three findings with respect to characterization of the soil substrate, and the evidence was clear that the first required finding was present in that hydric soils were found onsite landward of the line of sweet bay trees.
9/ This position probably also could have been inferred from DEP's Notice of Consolidated Denial and interrogatory answers.
COPIES FURNISHED:
John Rondolino
Post Office Box 1440
Crystal River, Florida 34423-1440
Craig D. Varn, Esquire
Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-3000
Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-3000
Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard
Mail Station 35
Tallahassee, Florida 32399-3000
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 20, 2002 | Agency Final Order | |
| May 17, 2002 | Recommended Order | Multi-faceted Environmental Resource Permit application was denied although all but dock application withdrawn. Denial addressed wetlands delineation, but Department had no jurisdiction once dredge and fill on wetlands withdrawn. Dock application denied. |
