FLORIDA DEPARTMENT OF

ENVIRONMENTAL PROTECTION

MARJORY STONEMAN DOUGLAS BUILDING 3900 COMMONWEALTH BOULEVARD

TALLAHASSEE, FLORIDA 32399-3000

RICK SCOTT GOVERNOR

HERSCHEL T. VINYARD JR.

SECRETARY

August 21, 2013

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

Re: Michael Casale, et al vs. Oculina Bank and DEP DOAH Case No.: 12-1227, et al

OGC Case No.: 12-0875, et al Dear Clerk:

Attached for filing are the following documents:

1. Agency Final Order

2. Oculina Bank’s Exceptions to Recommended Order

3. DEP’s Exceptions to the Recommended Order

If you have any questions, please do not hesitate to contact me at 245-2212 or lea.crandall@dep.state.fl.us.

Sincerely,

Lea Crandall

Lea Crandall Agency Clerk

www.dep.state.fl.us

Filed August 21, 2013 1:44 PM Division of Administrative Hearings

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL PROTECTION

CONSOLIDATED FINAL ORDER

An Administrative Law Judge ("ALJ") with the Division of Administrative Hearings ("DOAH") submitted a Recommended Order ("RO"), on April 19, 2013, to the

Department of Environmental Protection ("DEP" or "Department") in the above captioned consolidated proceedings. The RO is attached hereto as Exhibit A. The RO shows that copies were sent to counsel for the Petitioners, Michael Casale, Carolyn Stutt, Robert Prosser, Orin R. Smith and Stephanie Smith, and E. Garrett Bewkes.

Copies were also sent to counsel for the Respondent Oculina Bank ("Oculina Bank") and the Department. On May 13, 2013, the Respondent Applicant and the Department separately filed Exceptions to the Recommended Order. Responses to the Exceptions were not filed by any party. This matter is now before the Secretary of the Department for final agency action.1

BACKGROUND

On February 10, 2012, the Department issued a Consolidated Environmental Resource Permit and Sovereign Submerged Lands Authorization to Oculina Bank. Oculina Bank proposed to construct three single-family homes, an access drive, surface water management systems, and three single-family docks in Vero Beach, Indian River County, Florida. The project site is 15.47 acres located along 45th Street/Gifford Dock Road in Vero Beach. It is on the western shoreline of the Indian River Lagoon. The Lagoon in this area is part of the Indian River-Malabar to Vero Beach Aquatic Preserve and is also an Outstanding Florida Water.

March 28, 2012, Michael Casale filed a petition for hearing with the Department challenging the permit and authorization. On April 4, 2012, Carolyn Stutt, Robert

1 The Secretary of the Department is delegated the authority to review and take final agency action on applications to use sovereignty submerged lands when the application involves an activity for which the Department has permitting responsibility. See Fla. Admin. Code R. 18-21.0051(2).

Prosser, Orin Smith, and Stephanie Smith filed a petition for hearing with the Department. Also on April 4, 2012, E. Garrett Bewkes filed a petition for hearing with the Department. The Department referred the petitions to DOAH, which assigned an ALJ to conduct an evidentiary hearing and submit a recommended order. The three petitions were consolidated for hearing held on November 27-28, 2012, in Vero Beach. The three-volume transcript of the final hearing was filed with DOAH. The parties filed proposed recommended orders and the ALJ subsequently entered the RO.

SUMMARY OF THE RECOMMENDED ORDER

In the RO the ALJ recommended that the Department enter a final order denying the application for a Consolidated Environmental Resource Permit ("ERP") and Sovereignty Submerged Land Authorization ("SSL"). (RO at page 28).

Standing

The ALJ found that the uses of the waters of the Indian River Lagoon by the

Petitioners Carolyn Stutt, Robert Prosser, and Garrett Bewkes are substantial interests that would be affected by the proposed project; and are interests which this proceeding was designed to protect. (RO ,r,r 1, 2, and 61). Therefore, the ALJ concluded that these

Petitioners had standing. (RO 1J 61).

The ALJ found that the Petitioners Michael Casale, Orin Smith, and Stephanie Smith did not present any evidence to establish their substantial interests and,

therefore, did not make the necessary showing for standing. (RO ffll 3 and 64).

ERP Conditions for Issuance Not Met

The ALJ found that Oculina Bank did not provide reasonable assurance that the proposed project will not adversely impact the value of the refuge and nursery functions

provided to fish and wildlife and listed species. (RO ,m 46, 72, 77). The ALJ found that Oculina Bank failed to prove that (1) the interrelationship of existing channels and open

water features on the site, (2) which features are natural and which are man-made, (3) how those features are used by fish, such as tarpon and snook, (4) how they will be

altered by the project, and (5) how the nursery and refuge functions of the wetlands would be affected. (RO ,m 9, 18, 19, 21, 35, 38, 42, 46). The ALJ found that the

Department did not consider the secondary impacts of the home sites, access drive, and surface water management systems because it had determined that there would be a net improvement in environmental value. The ALJ found, however, that the loss of

refuge and nursery functions would prevent a net improvement in environmental value and it would cause secondary impacts to the tarpon and snook fisheries. (RO ,m 48, 77).

ERP Public Interest Test Not Met

The ALJ found that Oculina Bank failed to demonstrate that construction of the proposed home sites, access road, and surface water management systems would be not contrary to the public interest. The ALJ found that Oculina Bank failed to rebut the

Petitioners' evidence that the refuge and nursery functions of the wetlands would be adversely impacted by the project. (RO ,m 46, 48, 76, 77).

The ALJ further found that the proposed mitigation to offset impacts to the wetlands was not shown to be adequate because the potential adverse impacts to the refuge and nursery functions of the wetlands were not adequately addressed by Oculina Bank. (RO ,I 81).

Proposed Docks Meet ERP and SSL Criteria

The ALJ found that the proposed docks were in an Outstanding Florida Water and, therefore, must be shown to be clearly in the public interest under the ERP public interest test. The ALJ concluded that this showing does not require demonstration that the proposed project would create a net public benefit. It is sufficient to show that the project would have no material negative impacts or that any such impacts are clearly offset by public benefits. The ALJ found that Oculina Bank proved that construction of

the proposed docks would have no material negative impacts and, therefore, that the construction would be clearly in the public interest. (RO ,m 52, 53, 54, 57, 58, 78, 79).

The ALJ found that Oculina Bank proved that the proposed docks would comply with the standards and criteria for private single-family docks located in aquatic preserves. Thus, the ALJ concluded that the proposed docks meet the public interest requirements of the proprietary rules in aquatic preserves. The ALJ also found that the

proposed docks would not result in significant adverse impacts to sovereignty lands and associated resources, so no alternative project or mitigation was required. (RO ,m 84 - 88).

STANDARDS OF REVIEW OF DOAH RECOMMENDED ORDERS

Section 120.57(1)(1), Florida Statutes, prescribes thaf an agency reviewing a recommended order may not reject or modify the findings of fact of an ALJ, "unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence."

§ 120.57(1)(1), Fla. Stat. (2012); Charlotte Cty. v. IMC Phosphates Co., 18 So.3d 1089 (Fla. 2d DCA 2009); Wills v. Fla. Elections Comm'n, 955 So.2d 61 (Fla. 1st DCA 2007).

The term "competent substantial evidence" does not relate to the quality, character, convincing power, probative value or weight of the evidence. Rather, "competent substantial evidence" refers to the existence of some evidence (quantity) as to each essential element and as to its admissibility under legal rules of evidence. See, e.g., Scholastic Book Fairs, Inc. v. Unemployment Appeals Comm'n, 671 So.2d 287, 289 n.3 (Fla. 5th DCA 1996); Nunez v. Nunez, 29 So.3d 1191, 1192 (Fla. 5th DCA 2010).

A reviewing agency may not reweigh the evidence presented at a DOAH final hearing, attempt to resolve conflicts therein, or judge the credibility of witnesses. See, e.g., Rogers v. Dep't of Health, 920 So.2d 27, 30 (Fla. 1st DCA 2005); Belleau v. Dep't of Envtl. Prat., 695 So.2d 1305, 1307 (Fla. 1st DCA 1997); Dunham v. Highlands Cty. Sch. Bd., 652 So.2d 894 (Fla. 2d DCA 1995). These evidentiary-related matters are within the province of the ALJ, as the "fact-finder" in these administrative proceedings. See, e.g., Tedder v. Fla. Parole Comm'n, 842 So.2d 1022, 1025 (Fla. 1st DCA 2003); Heifetz v. Dep'tofBus. Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985). If there is competent substantial evidence to support an administrative law judge's findings of fact, it is irrelevant that there may also be competent substantial evidence supporting a contrary finding. See, e.g., Arand Construction Co. v. Dyer, 592 So.2d 276, 280 (Fla. 1st DCA 1991); Conshor, Inc. v. Roberts, 498 So.2d 622 (Fla. 1st DCA 1986).

The ALJ's decision to accept the testimony of one expert witness over that of another expert is an evidentiary ruling that cannot be altered by a reviewing agency, absent a complete lack of any competent substantial evidence of record supporting this decision. See, e.g., Peace River/Manasota Regional Water Supply Authority v. IMC Phosphates Co., 18 So.3d 1079, 1088 (Fla. 2d DCA 2009); Collier Med. Ctr. V. State,

Dep'tofHRS, 462 So.2d 83, 85 (Fla. 1st DCA 1985); Fla. Chapter of Sierra Club v. Orlando Utils. Comm'n, 436 So.2d 383, 389 (Fla. 5th DCA 1983). Therefore, if the DOAH record discloses any competent substantial evidence supporting a challenged factual finding of the ALJ, the agency is bound by such factual finding in preparing the Final Order. See, e.g., Walker v. Bd. of Prof/ Eng'rs, 946 So.2d 604 (Fla. 1st DCA 2006); Fla. Dep'tofCorr. V. Bradley, 510 So.2d 1122, 1123 (Fla. 1st DCA 1987). In addition, an agency has no authority to make independent or supplemental findings of fact. See, e.g., North Port, Fla. v. Consol. Minerals, 645 So.2d 485,487 (Fla. 2d DCA 1994).

Section 120.57(1)(I), Florida Statutes, authorizes an agency to reject or modify an ALJ's conclusions of law and interpretations of administrative rules "over which it has substantive jurisdiction." See Barfield v. Dep't of Health, 805 So.2d 1008 (Fla. 1st DCA 2001); L.B. Bryan & Co. v. Sch. Bd. of Broward Cty., 746 So.2d 1194 (Fla. 1st DCA 1999); Deep Lagoon Boat Club, Ltd. v. Sheridan, 784 So.2d 1140 (Fla. 2d DCA 2001). If an ALJ improperly labels a conclusion of law as a finding of fact, the label should be disregarded and the item treated as though it were actually a conclusion of law. See, e.g., Battaglia Properties v. Fla. Land and Water Adjudicatory Comm'n, 629 So.2d 161, 168 (Fla. 5th DCA 1994). Neither should the agency label what is essentially an ultimate factual determination as a "conclusion of law," however, in order to modify or overturn what it may view as an unfavorable finding of fact. See, e.g., Stokes v. State,

Bd. of Prof/ Eng'rs, 952 So.2d 1224 (Fla. 1st DCA 2007).

An agency's review of the legal conclusions in a recommended order is restricted to those that concern matters within the agency's field of expertise. See, e.g., Charlotte

Cty. v. IMC Phosphates Co., 18 So.3d 1089 (Fla. 2d DCA 2009); G.E.L. Corp. v. Dep't of Envtl. Prof., 875 So.2d 1257, 1264 (Fla. 5th DCA 2004). An agency has the primary responsibility of interpreting statutes and rules within its regulatory jurisdiction and expertise. See, e.g., Pub. Employees Relations Comm'n v. Dade Cty. Police Benevolent Ass'n, 467 So.2d 987, 989 (Fla. 1985); Fla. Public Employee Council, 79 v. Daniels, 646 So.2d 813, 816 (Fla. 1st DCA 1994). Considerable deference should be accorded to these agency interpretations of statutes and rules within their regulatory jurisdiction, and such agency interpretations should not be overturned unless "clearly erroneous." See, e.g., Falkv. Beard, 614 So.2d 1086, 1089 (Fla. 1993); Dep'tofEnvtl. Regulation v.

Goldring, 477 So.2d 532, 534 (Fla. 1985). Furthermore, agency interpretations of statutes and rules within their regulatory jurisdiction do not have to be the only reasonable interpretations. It is enough if such agency interpretations are "permissible" ones. See, e.g., Suddath Van Lines, Inc. v. Dep't of Envtl. Prof., 668 So.2d 209, 212 (Fla. 1st DCA 1996). The Department is charged with enforcing and interpreting chapter 373 of the Florida Statutes. Thus, chapter 373 of the Florida Statutes is within the Department's regulatory jurisdiction and expertise. See Dep't of Envtl. Regulation v. Goldring, 477 So.2d 532, 534 (Fla. 1985).

Agencies do not have jurisdiction, however, to modify or reject rulings on the admissibility of evidence. Evidentiary rulings of the ALJ that deal with "factual issues susceptible to ordinary methods of proof that are not infused with [agency] policy considerations," are not matters over which the agency has "substantive jurisdiction." See Martuccio v. Dep't of Prof/ Regulation, 622 So.2d 607,609 (Fla. 1st DCA 1993); Heifetz v. Dep't of Bus. Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985); Fla.

Power& Light Co. v. Fla. Siting Bd., 693 So.2d 1025, 1028 (Fla. 1st DCA 1997). Evidentiary rulings are matters within the ALJ's sound "prerogative ... as the finder of fact" and may not be reversed on agency review. See Martuccio, 622 So.2d at 609.

RULINGS ON EXCEPTIONS

The case law of Florida holds that parties to formal administrative proceedings must alert reviewing agencies to any perceived defects in DOAH hearing procedures or in the findings of fact of ALJs by filing exceptions to DOAH recommended orders. See, e.g., Comm'n on Ethics v. Barker, 677 So.2d 254, 256 (Fla. 1996); Henderson v. Dep't of Health, Bd. of Nursing, 954 So.2d 77 (Fla. 5th DCA 2007); Fla. Dep't of Corrs. V. Bradley, 510 So.2d 1122, 1124 (Fla. 1st DCA 1987). A party that files no exceptions to certain findings of fact "has thereby expressed its agreement with, or at least waived any objection to, those findings of fact." Envtl. Coalition of Fla., Inc. v. Broward Cty., 586 So.2d 1212, 1213 (Fla. 1st DCA 1991); see also Colonnade Medical Ctr., Inc. v. State of Fla., Agency for Health Care Admin., 847 So.2d 540, 542 (Fla. 4th DCA 2003). An agency head reviewing a recommended order is free to modify or reject any erroneous conclusions of law over which the agency has substantive jurisdiction, however, even when exceptions are not filed. See§ 120.57(1)(1), Fla. Stat. (2012); Barfield v. Dep't of Health, 805 So.2d 1008 (Fla. 1st DCA 2001); Fla. Public Employee Council, 79 v.

Daniels, 646 So.2d 813, 816 (Fla. 1st DCA 1994).

Finally, in reviewing a recommended order and any written exceptions, the agency's final order "shall include an explicit ruling on each exception."

See§ 120.57(1)(k), Fla. Stat. (2012). The agency need not rule on an exception, however, that "does not clearly identify the disputed portion of the recommended order

by page number or paragraph, that does not identify the legal basis for the exception, or that does not include appropriate and specific citations to the record." Id.

RESPONDENTS' EXCEPTIONS

Fisheries - refuge and nursery functions of wetlands

DEP Exception No. 1; Oculina Bank Exception No. 2

The DEP takes exception to certain findings of fact paragraphs 9, 18, 21, and 35.

Oculina Bank also takes exception to findings of fact paragraphs 21 and 35. The Respondents generally contend that the ALJ's factual findings are not supported by competent substantial evidence or that the record evidence is not adequate to support the findings of fact.

The ALJ found that "[t]he wetlands along the western shore of the Lagoon play a

major role in the regional tarpon and snook fisheries" (RO ,I 9), and that "this site is one of the critical habitats maintaining regional tarpon fisheries" (RO ,r 18). The Respondents assert that the record evidence is not sufficiently relevant to adequately

support the ALJ's findings. Such assertions, however, cannot be addressed by the Department since they concern evidentiary issues within the ALJ's jurisdiction as the trier of fact. See, e.g., Tedderv. Fla. Parole Comm'n, 842 So.2d 1022, 1025 (Fla. 1st DCA 2003); Heifetz v. Dep't of Bus. Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985). Competent substantial record evidence exists in the form of the testimony and exhibits of the Petitioners' fish expert to support the ALJ's factual findings. (T. Vol.Ill, pp. 295-302; Pet. Exs. 7 and 8).

The ALJ found that the "Petitioners presented evidence that there might be a

small fish, rivulus marmoratus, that uses the site, which is a listed 'species of special

concern."' (RO ,i 21). In paragraph 35, the ALJ found that "[i]f there are rivulus

marmoratus using the site, scraping down the berms could destroy some of the crab holes they use for habitat." (RO ,i 35). The Respondents argue that the Petitioners'

evidence of observing crab holes, which are potential rivulus habitat, is not concrete

evidence supporting the presence of rivulus on the site. (T. Vol. Ill, pp. 279-281, 305, 323; Pet. Ex. 7). A reviewing agency, however, may not reweigh the evidence presented at a DOAH final hearing or judge the credibility of witnesses. See, e.g.,

Rogers v. Dep't of Health, 920 So.2d 27, 30 (Fla. 1st DCA 2005); Belleau v. Dep't of

Envtl. Prot., 695 So.2d 1305, 1307 (Fla. 1st DCA 1997). Thus, the ALJ's reasonable inferences are supported by competent substantial record evidence.

Therefore, based on the foregoing reasons, DEP Exception No. 1 and Oculina Bank Exception No. 2 are denied.

DEP Exception No. 2; Oculina Bank Exception No. 1

The Respondents take exception to the first sentence in finding of fact paragraph 38, where the ALJ found that "[t]wo of the ponds on the site would have to be filled to create the home sites." (RO ,i 38). The Respondents assert that there was no witness testimony that "two ponds" would be filled as part of the proposed project. In fact the site plan shows that only one pond will be filled. (Oculina Exs. 11, 26; Joint Exs. 68, 69). A complete review of the record evidence supports the Respondents assertion that no competent substantial record evidence supports a finding that ''two ponds" would be filled. Therefore, the Respondents' exception to the first sentence in paragraph 38 is granted.

The Respondents also take exception to the ALJ's finding in the third sentence of

paragraph 38 that "Dr. Gilmore believes the ponds are important for the nursery function of the wetlands." (RO ,r 38). Competent substantial record evidence, however, does support the ALJ's finding. (T. Vol. Ill, pp 295-6, 299, 302, 321; Pet. Ex. 7). Therefore, the Respondents' exception to the third sentence in paragraph 38 is denied.

DEP Exception No. 3; Oculina Exception No. 2

The Respondents take exception to the ALJ's finding of fact in paragraph 42 that "[t]he UMAM analyses conducted by Oculina Bank and Department did not adequately address the loss of the ponds or the impact on rivulus marmoratus." (RO ,r 42). The Respondents argue that competent substantial evidence demonstrates that the loss of

"one" pond that would be filled for the proposed project was addressed in the UMAM analysis. (Joint Ex. 65, p. 4 of 10; T. Vol. I, pp. 118, 120). Therefore, based on the ruling regarding the first sentence of paragraph 38 above, and the record evidence of the UMAM analysis, this exception is granted with regard to "loss of ponds." Based on the rulings above regarding the ALJ's findings of fact in paragraphs 21 and 35, the

exception is denied with regard to "the impact on rivulus marmoratus."

DEP Exception No. 5; Oculina Bank Exception No. 3

The Respondents take exception to the ALJ's findings of fact in paragraph 46 that "Oculina Bank did not provide reasonable assurance tliat the proposed project will not adversely impact the value of the refuge and nursery functions provided by the wetlands." The Respondents' reiterate their arguments in previous exceptions that no competent substantial evidence supports the premise that the wetlands provide any refuge or nursery function. The rulings above show that, contrary to the Respondents'

arguments, competent substantial record evidence supports the ALJ's findings that the project site's wetlands provide refuge and nursery functions. (Pet. Exs. 6, 7, 8; T. Vol. Ill, pp. 279-281, 305, 323; T. Vol. Ill, pp. 295-6, 299, 302, 321).

Since Oculina Bank did not address the refuge and nursery functions, the ALJ further found in paragraph 46 that there was a ''failure of proof' and "insufficient evidence" with regard to reasonable assurance. (RO ,I 46). The DEP argues that reasonable assurance of an applicant's entitlement to a permit is a regulatory decision that must ultimately be made by the agency, rather than the ALJ. See, e.g., Deep Lagoon Boat Club, Ltd. v. Sheridan, 784 So.2d 1140, 1142 (Fla. 2d DCA 2001). Case

law establishes, however, that the reasonable assurance determination must flow from underlying factual findings made by the ALJ based on competent substantial record evidence. See, e.g., Save Anna Maria, Inc. v. Dep't of Transp., 700 So.2d 113, 118 (Fla. 2d DCA 1997)(reflecting that the "reasonable assurances" conclusion flows inexorably from findings of fact if competent substantial evidence supports the findings).

Therefore, based on the foregoing reasons, the Respondents' exception to paragraph 46 is denied.

DEP Exception No. 7; Oculina Bank Exception No. 5

The Respondents take exception to conclusion of law paragraph 77, where the ALJ concluded that Oculina Bank did not demonstrate that the construction of "the proposed home sites, access road, and surface water management systems would not be contrary to the public interest because Oculina Bank failed to rebut Petitioners evidence that the refuge and nursery functions of the wetlands would be adversely impacted by the project." (RO ,I 77). This conclusion of law in paragraph 77 is based on

the ALJ's underlying factual findings in paragraph 46. The Respondents again assert that there is no competent substantial evidence to support the finding that refuge and nursery functions of wetlands will be adversely impacted by the project. As discussed in the above rulings, the ALJ's findings in this regard, are supported by the record

evidence. (Pet. Exs. 6, 7, 8; T. Vol. Ill, pp. 279-281, 305, 323; T. Vol. Ill, pp. 295-6, 299,

302, 321).

Therefore, based on the foregoing, the Respondents' exception to conclusion of law paragraph 77 is denied.

Oculina Bank Exception No. 4

Oculina Bank takes exception to the ALJ's findings in paragraph 8 that "[t]here is a seasonal rise in sea level that occurs from August to November and it is during this season that waters of the Lagoon flood into adjacent wetlands. The wetlands may be

inundated at other times as a result of large storms." (RO 1f 8). Oculina Bank contends

that the Petitioners failed to present any evidence supporting this finding of fact. Contrary to Oculina Bank's contention, competent substantial record evidence in the form of the hearing testimony of the Petitioners' expert supports this finding of fact. (T. Vol. Ill, p. 295).

Therefore, based on the foregoing Oculina Bank's exception to paragraph 8 is denied.

Secondary impacts

DEP Exception No. 6; Oculina Bank Exception No. 5

The Respondents take exception to conclusion of law paragraph 75 where the ALJ concluded that:

75. Rule 40C-4.301(1)(e) [F.A.C.] requires an applicant for an Environmental Resource Permit to provide reasonable assurance that a proposed project "will not cause adverse secondary impacts to the water resources." Oculina Bank failed to demonstrate compliance with this rule because the loss of refuge and nursery functions would cause secondary

impacts to the tarpon and snook fishery.

The Respondents argue that no competent substantial evidence supports a finding of fact that the proposed project will result in loss of refuge and nursery functions. As discussed in the above rulings, the ALJ's findings in this regard, are supported by the record evidence. (Pet. Exs. 6, 7, 8; T. Vol. 111, pp. 279-281, 305, 323; T. Vol. Ill, pp. 295- 6, 299, 302, 321). In addition, the Respondents did not take exception to the ALJ's underlying findings in paragraph 48,2 where the ALJ found that:

48. The Department did not consider the secondary impacts of the home sites, access drive, and surface water management systems because it had determined that there would be a net improvement in environmental value. However, the loss of refuge and nursery functions would prevent a net improvement in environmental value and it would cause secondary impacts to the tarpon and snook fisheries.

Therefore, based on the foregoing, the Respondents' exception to conclusion of law paragraph 75 is denied.

2 A party that files no exceptions to certain findings of fact "has thereby expressed its agreement with, or at least waived any objection to, those findings of fact." Envtl. Coalition of Fla., Inc. v. Broward Cty., 586 So.2d 1212, 1213 (Fla. 1st DCA 1991); see also Colonnade Medical Ctr., Inc. v. State of Fla., Agency for Health Care Admin., 847 So.2d 540, 542 (Fla. 4th DCA 2003).

Reduction/Elimination of Impacts

DEP Exception No. 4

The DEP takes exception to the finding of fact in paragraph 45, where the ALJ requires that elimination or reduction of impacts must be coupled with a demonstration of "net improvement for fish and other wildlife, [which] would provide a reasonable basis for the Department to determine that the project impacts were minimized." (RO ,I 45).

As DEP asserts, the ALJ interpreted the rule language in Section 12.2.1 of the St. Johns

River Water Management District's (SJRWMD) Applicant's Handbook in a manner that imposed more requirements on the applicant than is specified in the rule. (RO ffll 45 and 74). The rule language requires a two-step analysis of wetland impacts and mitigation:

12.2.1.1 Except as provided in subsection 12.2.1.2, if the proposed system will result in adverse impacts to wetland functions and other surface water functions such that it does not meet the requirements of subsections 12.2.2 through 12.2.3.7, then the Department in determining whether to grant or deny a permit shall consider whether the applicant has implemented practicable design modifications to reduce or eliminate such adverse impacts.

The term "modification" shall not be construed as including the alternative of not implementing the system in some form, nor shall it be construed as requiring a project that is significantly different in type or function. A proposed modification which is not technically capable of being done, is not economically viable, or which adversely affects public safety through the endangerment of lives or property is not considered "practicable". A proposed modification need not remove all economic value of the property in order to be considered not "practicable". Conversely, a modification need not provide the highest and best use of the property to be "practicable". In determining whether a proposed modification is practicable, consideration shall also be given to the cost of the modification compared to the environmental benefit it achieves.

The first step is to determine if the applicant has implemented practicable design modifications to eliminate or, if impossible to completely eliminate, reduce adverse impacts to wetland functions. After the applicant has demonstrated that it has implemented practicable design modifications to eliminate or reduce adverse impacts.to wetland functions, the second step is to determine if the applicant has mitigated any remaining adverse impacts. See, e.g., Peace River/Manasota Regional Water Supply Authority v. IMC Phosphates Co., DOAH Case Nos. 03-0791, etc. (Fla. Dept. of Env.

Prot. 2006)(The findings of adequate elimination and reduction of impacts mean only that IMC has made sufficient design modifications that it is entitled to proceed to the next step of the ERP process: detailed analysis of impacts. See RO paragraph 868.).

In related conclusion of law paragraph 74, the ALJ explains that his suggested interpretation of Section 12.2.1 is a way to encourage environmental restoration. (RO ,r 74). There is no record evidence that supports this interpretation. The ALJ opines that

the Department and the Board of Trustees "would not achieve the legislative intent

reflected in chapters 253 and 373, nor environmental goals reflected in their rules, by applying the requirement to minimize impacts in a manner that discouraged environmental restoration." (RO ,r 74).

Contrary to the ALJ's conclusions in paragraphs 453 and 74, the plain language of the rule does not impose an extra requirement on an applicant conducting an environmental restoration project in conjunction with or as mitigation for proposed impacts to wetlands and surface waters. Id. The Department's interpretation of Section

3 If an ALJ improperly labels a conclusion of law as a finding of fact, the label should be disregarded and the item treated as though it were actually a conclusion of law. See, e.g., Battaglia Properties v. Fla. Land and Water Adjudicatory Comm'n, 629 So.2d 161, 168 (Fla. 5th DCA 1994).

1. is more reasonable than that of the ALJ. § 120.57(1)(1), Fla. Stat. (2012). The ALJ's rule interpretation in paragraphs 45 and 74 is not adopted in this Final Order.

   Therefore, based on the foregoing, the DEP's exception to paragraph 45 is granted.

   Mitigation

   
   

   DEP Exception No. 8; Oculina Bank Exception No. 5

   
   

   The Respondents take exception to conclusion of law paragraph 81, where the ALJ concluded that "[t]he proposed mitigation to offset impacts to the wetlands was not

   shown to be adequate because the potential adverse impacts to the refuge and nursery functions of the wetlands were not adequately addressed by Oculina Bank." (RO 1f 81). The Respondents argue that no competent substantial evidence supports a finding of

   fact that the proposed project will result in loss of refuge and nursery functions. As discussed in the above rulings, the ALJ's findings in this regard, are supported by the record evidence. (Pet. Exs. 6, 7, 8; T. Vol. Ill, pp. 279-281, 305, 323; T. Vol. Ill, pp. 295-

   6, 299, 302, 321).

   
   

   The DEP argues that any conclusions related to the sufficiency of mitigation are within the jurisdiction of the Department. See, e.g., Save Anna Maria, Inc. v. Dep't of Transp., 700 So.2d 113, 116 (Fla. 2d DCA 1997). It is the responsibility of the ALJ, however, to make basic findings of fact and the Department's final determination must be based on and be consistent with those applicable underlying factual findings of the ALJ. See, e.g., 1800 Atlantic Developers v. Dep't of Envtl. Reg., 552 So.2d 946, 955 (Fla. 1st DCA 1989); Kramer v. Dep't of Envtl. Protection, DOAH Case No. 00-2873, 2002 WL 1774316 (Fla. Dept. of Env. Prot. April 29, 2002).

   Therefore, based on the foregoing, the Respondents' exception to conclusion of law paragraph 81 is denied.

   SSL Authorization

   
   

   Oculina Bank Exception No. 6.

   
   

   Oculina Bank takes exception to conclusions of law paragraphs 82-89 on the basis that since the ALJ concludes that the proposed docks meet all of the requirements for authorization a "more reasonable conclusions would be the granting of a Sovereignty Submerged Lands Authorization." Oculina Bank applied for a Consolidated Environmental Resource Permit and Sovereign Submerged Lands Authorization under Part IV of chapter 373, Flo'rida Statutes. That application is subject to concurrent review for the ERP permit and the SSL approval. The concurrent review provisions of applicable statutes and rules provide that if all the criteria for approval of the concurrently reviewed application are not met, it shall be denied. See§ 373.427 and 253.03(13), Fla. Stat. (2012); Fla. Admin. Code R. 62-343.075.

   Therefore, based on the foregoing, Oculina Bank's exception to conclusions of law paragraphs 82-89 is denied.

   CONCLUSION

   
   

   Having considered the applicable law in light of the rulings on the Respondents' Exceptions, and being otherwise duly advised, it is

   ORDERED that:

   
   

   1. The Recommended Order (Exhibit A), as modified by the rulings above, is adopted in its entirety and incorporated herein by reference.

   2. The Respondent Oculina Bank's application for a Consolidated Environmental Resource Permit and Sovereign Submerged Lands Authorization in DEP File No. 31- 0294393-002-EI is DENIED.

JUDICIAL REVIEW

Any party to this proceeding has the right to seek judicial review of the Final Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rules 9.110 and 9.190, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 3900 Commonwealth Boulevard,

M.S. 35, Tallahassee, Florida 32399-3000; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Final Order is filed

with the clerk of the Department.

91,+-

DONE AND ORDERED this day of August, 2013, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

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FILED ON THIS DATE PURSUANT TO § 120.52, FLORIDA STATUTES, WITH THE DESIGNATED DEPARTMENT CLERK, RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED.

Marjory Stoneman Douglas Building 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

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CERTIFICATE OF SERVICE

I CERTIFY that a copy of the foregoing Final Order has been sent by electronic mail to:

Marcy I. LaHart, Esq. Marcy I. LaHart, P.A.

4804 Southwest 45th Street Gainesville, FL 32608-4922 marcy@floridaanimallawyer.com

Nona Schaffner, Esquire

Department of Environmental Protection 3900 Commonwealth Blvd., M.S. 35

Tallahassee, FL 32399-3000 nona.schaffner@dep.state.fl.us

Nicholas M. Gieseler, Esq. Steven Gieseler, Esq.

Gieseler and Gieseler, P.A. 554 Southwest Halden Avenue Port St. Lucie, FL 34593-3818 nmg@gieselerlaw.com

by electronic filing to:

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

1:,t

thi s'?) day of August, 2013.

ea-.C-3

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

---t ..                   

LKES

Administrative Law Counsel

3900 Commonwealth Blvd., M.S. 35

Tallahassee, FL 32399-3000 Telephone 850/245-2242

Docket for Case No: 12-001227

Orders for Case No: 12-001227