The Issue The issue for determination is whether Petitioner is liable for the costs and expenses incurred by Respondent in responding to a pollutant discharge, occurring on November 6, 1992, at the waters off John Lloyd State Park, Dania, Florida, and for damages to natural resources resulting from the pollutant discharge.
Findings Of Fact On November 6, 1992, a DC-7 airplane crashed off the Atlantic Coast of Florida, more particularly, 100 yards from John Lloyd State Park, and one quarter of a mile north of Dania Pier in Dania, Florida. The DC-7 was a chartered cargo airplane and had departed from Miami International Airport. The DC-7 was chartered from Claudio Castillo by Miguel Delpino, United States General Manager of Aerochago Airlines, to carry cargo for Aerochago Airlines. Even though Aerochago Airlines owned aircraft, its aircraft was unavailable due to maintenance work being performed. During the flight from Miami International Airport, the DC-7 developed engine trouble, i.e., two of its engines failed. The aircraft began to lose altitude. In an attempt to regain altitude, the captain of the aircraft dumped 3,000 gallons of aviation fuel. However, the DC-7 failed to regain altitude and crashed. Remaining on the crashed aircraft were 3,000 gallons of aviation fuel and 150 gallons of motor oil. When the DC-7 crashed, only the crew and two passengers were on board. One of the passengers was Mr. Castillo. On the same day of the crash, the Florida Marine Patrol (FMP) of the Department of Natural Resources, now the Department of Environmental Protection (DEP), arrived at the crash scene at 3:20 a.m. and investigated the crash. The DEP had four employees investigating the crash: three FMP officers and one employee from the Office of Coastal Protection. The remaining aviation fuel and motor oil in the crashed DC-7 was discharging into the coastal waters. The DEP employees attempted to abate the discharge. The equipment necessary for the employees' investigation of the crash and abatement of the discharge and the cost for the equipment were the following: (a) a DEP vehicle at a cost of $7.00; (b) a twin engine vessel at a cost of $120.00; (c) an underwater sealant kit at a cost of $16.66; (d) scuba tanks at a cost of $9.00; and (e) photographs at a cost of $24.00. The total hours expended by DEP's four employees were 36 hours, at a cost of $685.84. Due to the DC-7 leaking aviation fuel and motor oil into Florida's coastal waters, removal of the aircraft from the Atlantic Ocean was necessary. DEP contracted with Resolve Towing and Salvage (RTS) to remove the DC-7. RTS is a discharge cleanup organization approved by DEP. RTS' contractual responsibilities included removal of the entire DC-7 aircraft and all debris within 100 yards of the center of the aircraft; disposal of the aircraft; plugging the engines to help stop the leakage; and removal and delivery of the engines which failed to the National Transportation Safety Board (NTSB) and the Federal Aviation Authority (FAA). Because the submerged DC-7 was located in an environmentally sensitive coral and sea-plant area, RTS was required to use extreme care in removing the aircraft. The contractual cost was fixed at $34,000.00 A DEP employee, Kent Reetz, was at the scene of the crash during RTS' cleanup. His responsibility was to monitor the removal of the DC-7 by RTS and to ensure that the aircraft's removal was in compliance with DEP's standards. During the removal of the DC-7 from the water, the fuselage ruptured, scattering debris which was dangerous to the public and to the coral and sea-plants. DEP determined that RTS was not responsible for the fuselage rupturing, but that the rupture was caused by several storms, prior to the aircraft's removal, and by the aircraft being submerged for an extended period in salt water. DEP contracted with RTS to remove the dangerous debris emitted when the fuselage ruptured. The contractual cost was fixed at $9,050.00 The total contractual cost between DEP and RTS was $43,050.00. DEP paid RTS from the Coastal Protection Trust Fund. In responding to the pollutant discharge, DEP incurred a total cost of $43,912.50. DEP assessed damages to the natural resources based upon the amount of pollutants discharged which were 3,000 gallons of aviation fuel and 150 gallons of motor oil. Using the statutory formula, DEP assessed damages to the natural resources in the amount of $57,898.72. Based upon the costs incurred by DEP in responding to the pollutant discharge in the amount of $43,912.50 and the damages to the natural resources in the amount of $57,898.72, DEP sought reimbursement and compensation from Mr. Castillo in the total amount of $101,811.22. DEP invoiced Mr. Castillo for reimbursement of the costs and for compensation for the damages. DEP provided Mr. Castillo with detailed and itemized expense documents for the costs that it had incurred in responding to the pollutant discharge. The documents showed the expenses incurred, what each expense represented, and the formula for computing each expense. Further, DEP provided Mr. Castillo with a document showing the amount of the damages to the natural resources, the formula for computing the damages, and how the damages were computed. The charter of November 6, 1992, was not the first time that Mr. Delpino had chartered the same DC-7 from Mr. Castillo. Prior to and, again, at the previous charter, Mr. Castillo represented to Mr. Delpino that he, Mr. Castillo, was the owner of the DC-7. The owner of a chartered aircraft is responsible for obtaining the aircraft's crew and insurance and for maintaining the aircraft. For the previous charter, Mr. Castillo was responsible for obtaining the DC-7's crew and the insurance and for maintaining the aircraft. Mr. Delpino had no reason to expect the charter for November 6, 1992, to be any different. Furthermore, Mr. Castillo did not inform Mr. Delpino that the responsibilities would be different. For the present charter, as before, Mr. Castillo handled all matters relating to the crew, insurance, and maintenance. Regarding the insurance, Mr. Castillo presented to Mr. Delpino an insurance certificate which, after the crash, was discovered to be false. Also, regarding maintenance, prior to the crash, the two engines which failed were to be removed and repaired, but, although they were removed, they were returned without being repaired. Mr. Castillo was the owner of the DC-7. Also, the crash of the DC-7 was investigated by several federal governmental agencies, including the FAA, the U.S. Coast Guard, and the NTSB. Both the Coast Guard and the NTSB issued reports on the crash, which identified Mr. Castillo as the owner of the DC-7. Mr. Castillo was responsible for the discharge of the 3,000 gallons of aviation fuel and 150 gallons of motor oil from the DC-7 into Florida's coastal waters.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection (DEP) enter a final order assessing Claudio Castillo $43,912.50 for costs related to DEP responding to the pollutant discharge on November 6, 1992, at Florida's coastal waters off John Lloyd State Park, Dania, Florida, and $57,898.72 for damages to natural resources resulting from the pollutant discharge--all totaling $101,811.22. DONE AND ENTERED this 26th day of August, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1997.
The Issue The issue in this case is whether the evidence sustains the decision of the City of Clearwater Development Code Adjustment Board (the Board) to deny the application of the Appellant, Richard P. Levy, d/b/a T-Shirt Factory, for a four parking space variance at his property located at 1498 Gulf to Bay Boulevard, at the junction of Gulf to Bay Boulevard, Highland Avenue and Court Street, Clearwater, Florida. (The variance is required as a result of his desire to convert 877.5 square feet of storage space in his building on the property to retail use.)
Findings Of Fact Appellant, Richard P. Levy, d/b/a T-Shirt Factory, owns part of lots 5 and 8, and all of lots 6 and 7, Block G, Boulevard Heights, at 1498 Gulf to Bay Boulevard, at the junction of Gulf to Bay Boulevard, Highland Avenue and Court Street, 0.24 acres, more or less, Clearwater, Florida. The T-Shirt Factory utilizes back-out parking into Gulf to Bay Boulevard and Highland Avenue. This type of parking for retail use is a traffic hazard and does not conform to the requirements of the City of Clearwater Land Development Code (the Code), but the property enjoys the benefit a having its retail use "grandfathered" under the Code because the prior owner also used the property and parking for retail sales at the time the Code was adopted. Gulf to Bay Boulevard is a busy and fairly high speed traffic artery. Highland Avenue also is a busy street. They meet at an acute angle with the Appellant's property inside the angle. Gulf to Bay Boulevard and Court Street, also a busy and fairly high speed traffic artery, meet at an acute angle just across the street from the Appellant's property, further complicating the traffic pattern in the vicinity of the Appellant's property. The Appellant filed its application for a four parking space variance to allow him to convert 877.5 square feet of storage space in his building on the property to retail use. The Appellant can make reasonable use of his property without the additional retail space. The Appellant's primary purposes in increasing retail space are to directly increase revenue and profit and to make the retail displays in his store more attractive and more spacious, in large part to prevent shoplifting and thereby indirectly increase revenues and profit. As now planned, unless advertised, the existance of additional retail space in the store would not be readily apparent to passers by not already familiar with the store. Nonetheless, the Appellant did not prove that the additional retail use will not lead eventually to additional use of the existing back-out parking on Gulf to Bay Boulevard and Highland Avenue. Even if the retail space were expanded as planned, and not advertised, the expansion eventually could lead to an increase in retail business, one of the Appellant's primary long term purposes.
The Issue Whether Appellant was wrongfully denied a variance of 21.33 feet to construct a second floor deck at 673 Bay Esplanade, Five Palms Motel Condo, Clearwater, Florida.
Findings Of Fact John Shaw, a resident of Massachusetts, purchased the condominium for which the variance is here requested in December, 1988 without first visiting the property or inquiring about zoning restrictions. The unit purchased is on the second floor of a two story building earlier converted from a hotel or motel into condominiums. The seller told Shaw he could construct a deck over the existing deck on the ground floor condominium below the unit purchased by Shaw. While the construction of this deck was in progress it was discovered no permit had been pulled for the project and the work was stopped. The subsequent application for a permit was denied because the proposed deck encroached some 21.33 feet into the setback area. The application for a variance was denied by the Clearwater Development Code Adjustment Board and this appeal followed. The two buildings comprising this complex were erected many years ago and are non-conforming, i.e., the buildings themselves violate the current Development Code. An existing deck extending into the setback area was constructed on the unit directly below the condominium purchased by Shaw and a similar deck extending to the seawall was constructed on an adjacent building. No permits are on file for those decks. Construction of the proposed deck would improve the livability of the condominium greatly by expanding the area usable for looking seaward. The condominium has been used without this deck for many years. This property is zoned CR-24 and the setback requirement is 25 feet from the water's edge.
Findings Of Fact Petitioners own property located in Section 6, Township 9, Range 16 East, Gilchrist County, Florida (the "Moore property"). Mrs. Linda Bridges owns property adjacent to and south of the Moore property (the "Bridges property"). Respondent, Bridges ("Bridges"), is in possession and control of the Bridges property. Mr. Glenn Miller owns property adjacent to and south of the Bridges property (the "Miller property"). ITT-Rayonier owns property west of the Moore, Bridges, and Miller properties (the "ITT property"). A dirt road runs north and south in front of and along the western border of the Moore, Bridges, and Miller properties (the "road"). The road separates the ITT property, to the west, from the Moore, Bridges, and Miller properties, to the east. Prior to 1989, surfacewater historically flowed in a northeasterly direction. It flowed northeasterly from the ITT property through a 24 inch road culvert onto the Bridges property. It then flowed north through a 36 inch culvert on the southerly portion of the Moore property, across the Moore property, and into Weeks Lake to the north of the Moore property. In 1989, with the consent of Bridges but without a permit from the District, Petitioners began a construction plan that included the installation of two 62 inch culverts to enhance the northeasterly flow of surfacewater from the ITT property to Weeks Lake. One 62 inch culvert was intended to replace the 24 inch culvert under the road forming the westerly boundary between the ITT property and the Moore and Bridges properties. The second 62 inch culvert was intended to replace the 36 inch culvert on the southerly boundary of the Moore property. The second 62 inch culvert was needed so the same volume of surfacewater flowing from the ITT property through the 62 inch road culvert could continue its northerly flow from the Bridges property to the Moore property and on to Weeks Lake. Petitioners replaced the 24 inch road culvert with a 62 inch culvert but left intact the 36 inch culvert on the southerly portion of their property. Thus, a greater volume of surfacewater can flow from the ITT property through the 62 inch culvert onto the Bridges property but a lesser volume of surfacewater can flow from the Bridges property through the 36 inch culvert onto the Moore property. Petitioners removed fill material from the ITT property to widen and increase the height of the road bed on the westerly boundary between the ITT and Moore properties. The heightened road bed impounds a greater volume of surfacewater on the ITT property before it flows over the road onto the Moore property. This can increase the rate of flow of surfacewater through the 62 inch road culvert onto the Bridges property under certain circumstances. Petitioners increased the depth and width of existing ditches, and added new ditches along a portion of the road bed onto the Bridges property. The increased ditch capacity further increases the volume of surfacewater that can flow onto the Bridges property. Petitioners constructed a berm running east and west on the southerly boundary of the Moore property. This increases the volume of surfacewater that can be impounded on the Bridges property without flowing onto the Moore property through areas other than the 36 inch culvert that Petitioners left intact on the southerly portion of their property. The 62 inch road culvert, increased ditch capacity, heightened road bed between the ITT and Moore properties, the berm on the southerly portion of the Moore property, and the 36 inch culvert increase the volume of surfacewater that is impounded on the Bridges property before continuing its historic northeasterly flow. Surfacewater impounded on the Bridges property floods the Bridges property and properties to the south of the Bridges property. Although flooding occurred on the Bridges property prior to the 1989 construction, flooding on the Bridges property and properties south of the Bridges property is greater since Petitioners completed construction. In addition, the ITT property drains more readily. On or about October 13, 1993, Bridges applied to the District for a General Surfacewater Management Permit to replace the 62 inch road culvert with a 24 inch culvert pursuant to Florida Administrative Code Rule 40B-4.2010(1)(a). A General Surfacewater Management Permit is issued for activities that have little or no potential adverse impact to surfacewater resources for the District. The application satisfied all of the criteria for the permit at issue. ITT does not object to the proposed permit even though more surfacewater will be impounded on the ITT property. Issuance of the proposed permit will approximate the flow of surfacewater that existed prior to Petitioners' installation of a 62 inch road culvert without a permit in 1989.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Suwannee River Water Management District, enter a Final Order and therein GRANT Respondent, Paul Bridges', Application For Agriculture Or Forestry General Surfacewater Management Permit. DONE and ENTERED this 2nd day of March 1994, in Tallahassee, Florida. DANIEL S. MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6656 Petitioners' Proposed Findings Of Fact. 1.-4. Rejected as immaterial 5. Rejected as recited testimony 6.-7. Rejected as not supported by credible and persuasive evidence 8. Rejected as irrelevant and immaterial 9.-13. Rejected as not supported by credible and persuasive evidence 14.-15. Rejected as irrelevant and immaterial 16.-19. Rejected as not supported by credible and persuasive evidence Rejected as irrelevant and immaterial Rejected as not supported by credible and persuasive evidence Rejected as recited testimony 23.-24. Rejected as not supported by credible and persuasive evidence Respondent, Paul Bridges, Proposed Findings Of Fact. Respondent, Bridges, did not submit proposed findings of fact. Respondent, Suwannee River Water Management District, Proposed Findings Of Fact. All of the District's proposed findings of fact are accepted in substance. COPIES FURNISHED: James H. and Jerrilyn Moore, pro se Route 2, Box 120-E Trenton, FL 32693 Paul Bridges, pro se Route 2, Box 120K-1 Trenton, FL 32693 Janice F. Bessinger, Esquire Brannon, Brown, Haley, Robinson & Cole Post Office Box 1029 Lake City, FL 32056-1029 Jerry Scarborough, Executive Director Suwannee River Water Management District Route 3, Box 64 Live Oak, FL 32060
The Issue The issue to be determined in this case is whether Respondent Oculina Bank is entitled to a Consolidated Environmental Resource Permit and Sovereign Submerged Lands Authorization to construct three single-family homes, an access drive, surface water management system, and three single-family docks in Indian River County.
Findings Of Fact Parties Petitioner Pelican Island Audubon Society has more than 25 members residing in Indian River County, was in existence for more than a year before Oculina Bank filed its application for the Permit, and was formed for the purpose of protecting the environment, fish, and wildlife resources. Petitioners Carolyn Stutt and Garrett Bewkes live approximately one mile north of the proposed project site, on John's Island, which is on the opposite side of the Indian River Lagoon from the proposed project site. Petitioner Carolyn Stutt uses the Lagoon for boating, nature observation, nature photography, and sketching. Petitioner Garrett Bewkes uses the Lagoon for boating and fishing. Petitioners Orin Smith and Stephanie Smith did not testify at the final hearing nor present other evidence to show they have substantial interests that could be affected by the proposed project. Respondents did not stipulate to any facts that would establish the Smiths’ substantial interests. Respondent Oculina Bank has an undivided ownership interest in the project site and is the applicant for the Permit that is the subject of this proceeding. DEP is the state agency responsible for regulating construction activities in waters of the State. DEP also has authority to process applications for authorization from the Board of Trustees of the Internal Improvement Trust Fund ("Board of Trustees") to use sovereignty submerged lands for structures and activities that will preempt their use by the general public. The Project Site The project site is 15.47 acres and 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. It is an Outstanding Florida Water. The Lagoon is an estuary, but it is almost non-tidal in this area. There 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. The wetlands along the western shore of the Lagoon play a role in regional tarpon and snook fisheries. Wetlands provide essential refuges for early-stage tarpon and snook. When the wetlands are inundated, larval tarpon and snook can move into the wetlands and seek out shallow areas to avoid predation by larger fish. The project site is dominated by salt marsh wetlands. In order to control salt marsh mosquitoes, the site was impounded by the Indian River Mosquito Control District sometime in the 1950s by excavating ditches and building earthen berms or dikes along the boundaries of the site. The mean high water line of the Lagoon in this area is 0.78 feet. The berms were constructed to an elevation of about five feet, but there are now lower elevations in some places. The wetlands on the site are isolated for much of the year because the waters of the Lagoon cannot enter the wetlands unless the waters rise above the lowest berm elevations. This connection only occurs in unusually high water conditions. The impoundment berms have decreased the frequency and duration of the project site’s inundation by waters from the Lagoon. There are almost 14 acres of wetlands impounded by the berms. The impounded wetlands are dominated by salt grass. There are also mangroves, mostly white mangroves, along the side slopes of the berms. Most of the upland areas are dominated by Brazilian pepper trees and Australian pine trees, which are non- native, invasive vegetation. Within the wetlands are three ponds. Before the project site was impounded for mosquito control, it had "high marsh" vegetation such as saltwort and glasswort, as well as black and red mangroves. The impoundment resulted in the reduction of these species. There is now reduced nutrient export from the impounded wetlands to the Lagoon. The project site still provides nesting, denning, and foraging habitat for birds and other wildlife. However, the environmental health and productivity of the wetlands on the site have been reduced by the impoundment berms. The adverse effects of impounding wetlands for mosquito control are widely understood by environmental scientists. Therefore, reconnecting impounded wetlands along the Indian River Lagoon has been a local and state governmental objective. North and south of the project site are salt marsh wetlands that have been restored. To the north is a portion of the mitigation area for a development called Grand Harbor. To the south is the CGW Mitigation Bank. Both adjacent wetland areas were restored by reconnecting them to the Lagoon and removing exotic vegetation. The restored wetlands to the north and south now contain a dominance of saltwort and glasswort. They also have more black and red mangroves. These environmental improvements, as well as an increase in species diversity, are typical for former mosquito control impoundments that have been restored. In the offshore area where the three proposed docks would be constructed, there are scattered seagrasses which are found as close as 25 feet offshore and far as 100 feet offshore. They include Manatee grass, Cuban shoal grass, and Johnson’s seagrass. The Proposed Project The proposed home sites are on separate, recorded lots ranging in size from 4.5 acres to 6.5 acres. The home sites would have 6,000 square feet of "footprint." The houses would be constructed on stilts. There would be a single access driveway to the home sites, ending in a cul-de-sac. The displacement of wetlands that would have been required for the side slopes of the access drive and cul-de-sac was reduced by proposing a vertical retaining wall on the western or interior side of the drive. Each home site has a dry retention pond to store and treat stormwater runoff. The ability of these retention ponds to protect water quality is not disputed by Petitioners. The home sites and access drive would be constructed on the frontal berm that runs parallel to the shoreline. However, these project elements would require a broader and higher base than the existing berm. The total developed area would be about three acres, 1.85 acres of which is now mangrove swamp and salt marsh and 0.87 acres is ditches. One of the onsite ponds would be eliminated by the construction. The houses would be connected to public water and sewer lines. Oculina Bank would grant a perpetual conservation easement over 11.69 acres of onsite salt marsh wetlands. It would remove Brazilian Pepper trees, a non-native plant, from the site. Petitioners' original objection to the proposed project and their decision to file a petition for hearing appears to have been caused by Oculina Bank's proposal to build docks over 500 feet in length. The dock lengths in the final revision to the project vary in length from 212 to 286 feet. The docks do not extend out more than 20 percent of the width of the waterbody. The docks do not extend into the publicly maintained navigation channel of the Lagoon. Because the docks meet the length limit specified in Florida Administrative Code Chapter 18-21, they are presumed not to create a navigation hazard. To reduce shading of sea grasses, the decking material for the docks would be grated to allow sunlight to pass through the decking. There are no seagrasses at the waterward end of the docks where the terminal platforms would be located and where boats would usually be moored. The dock pilings will be wrapped with an impervious membrane to prevent the treatment chemicals from leaching into the water. In Oculina I, the Administrative Law Judge determined that the condition for vessels moored at the proposed docks should be stated as a maximum permissible draft. The Permit imposes a maximum draft for boats using the docks. Fish Survey Oculina Bank conducted a fish sampling survey in 2014 to obtain additional information about the presence of tarpon, snook, rivulus, and other fish on the project site. Twenty-three sampling stations were established and sampled from January 16, 2014 to February 16, 2014. The survey was conducted during a period of seasonal high water in order to catalog the highest number of fish that might migrate in and out of the site during high water. Oculina Bank collected five species of fish that are typically found in impounded areas. No tarpon or snook were found. Oculina Bank did not find Florida Gar or Least Killifish during the fish survey, but Dr. Taylor observed these two species on his site inspection in 2015. He also saw three to five juvenile tarpon. No testimony about snook was presented at the final hearing nor was this fish mentioned in Petitioners’ Proposed Recommended Order. Mangrove Rivulus Rivulus marmoratus, or mangrove rivulus, is designated a species of special concern by the FWC. See Fla. Admin. Code R. 68A-27.005(2)(b). Species of special concern are those species for which there are concerns regarding status and threats, but for which insufficient information is available to list the species as endangered or threatened. Some research indicates rivulus are more common than originally believed. Certain populations of rivulus in Florida are healthy and thriving. A team of scientists who participated in a biological status review of the rivulus for the FWC recommended that the rivulus be delisted. The team included Dr. Taylor and Dr. Wilcox. In Oculina I, Dr. Gilmore did not find any rivulus on the project site, but he expressed the opinion that the site had rivulus habitat and they were probably on the site. In his more recent visits to the project site in conjunction with the current proceeding, Dr. Gilmore did not observe any rivulus. Oculina Bank did not find any rivulus during its fish survey. Dr. Taylor sampled for rivulus on the site on five different days in 2015 and found five rivulus in a ditch outside (waterward) of the impoundment berm. Dr. Taylor sampled “extensively” for rivulus in the interior of the project site, but found none there. Still, he believes there are probably some in the interior. The area where the rivulus were found outside the impoundment berm would not be changed by the proposed project. However, Oculina Bank’s proposal to scrape down the impoundment berm would eliminate many crab burrows, which are habitat for the rivulus. Dr. Taylor and Dr. Wilcox agreed that rivulus are more likely to be found in areas that are tidally connected. The preponderance of the evidence does not support Petitioners’ claim that the proposed project would, on balance, adversely affect the mangrove rivulus. However, the recommended permit modifications should benefit the species. Tarpon In Oculina I, Dr. Gilmore testified that the project site was “one of the critical habitats maintaining regional tarpon fisheries.” However, he only observed one “post larval” tarpon in 2012 and none in 2014. Dr. Gilmore stated that a small mesh seine is the best method to sample for these nursery phase tarpon, but he never used such a seine to sample for them on the project site, nor did anyone else. Extensive evidence regarding on-site investigations and literature related to tarpon was presented at the final hearing. Sometimes the testimony failed to distinguish between early stage (larval) tarpon and later stage (juvenile) tarpon, whose habitat needs are not the same. The nursery and refuge functions of the wetlands on the project site relate primarily to larval tarpon, not juvenile tarpon. The shallow ponds on the project site are an important habitat type that can be used by larval tarpon when related hydrologic conditions are compatible. The preponderance of the evidence does not support the characterization of the wetlands on the project site as “critical habitat” for tarpon in the region. The current hydrologic conditions diminish the value of the nursery and refuge functions provided by the wetlands. Improving the connection between the wetlands and the Lagoon can enhance the tarpon nursery function if the improved connection is made without giving predators of larval tarpon access to the interior ponds. Dr. Gilmore stated, “you don’t have to take down the entire dike, you can create low spots.” By low spots, he means areas like the one that currently exists in the southern impoundment berm that is at about elevation 2.0 feet. The preponderance of the evidence shows the proposed project would not adversely affect the nursery function of the wetlands for tarpon if the recommended modifications are made to the Permit to improve the connection to the Lagoon while keeping the interior ponds isolated from the Lagoon for most of the year. Mitigation DEP conducted a Uniform Mitigation Assessment Methodology (“UMAM”) analysis for the proposed project that assumed direct impacts to 2.72 acres of mangrove swamp. It did not account for secondary impacts that could be caused by the proposed project. DEP’s UMAM analysis determined there would be a functional loss of 1.269 units. It further determined that these losses would be offset by the creation of 0.88 acres of salt marsh and the enhancement of 10.81 acres of mangrove swamp, resulting in a net functional gain of 2.342 units. DEP concluded that, if functional losses caused by secondary impacts were included, there would be a functional loss of 2.350 units, which still results in a net gain of 3.056 units. Because DEP determined there would be a net gain in functional value, it did not require Oculina Bank to provide additional on-site mitigation or to purchase mitigation credits from an off-site mitigation bank. The UMAM analysis performed by DEP did not adequately account for the lost tarpon nursery function and the proposed mitigation could further diminish the nursery function. The purchase of mitigation bank credits would not offset the lost nursery function because the mitigation bank was not shown to provide a nursery function.
Recommendation Based upon the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that the Department of Environmental Protection issue Permit No. 31-0294393-003-EI, with the following modifications: The impoundment berm will not be scraped down to mean sea level, but, instead, two new low spots will be created in the impoundment berm at an elevation of approximately 2.0 feet. A new isolated pond will be created to replace the one that will be eliminated by the construction, similar in size to the one that will be eliminated. Internal ditches and other channels will be filled as needed to eliminate predator access to the ponds. If these modifications are not made, it is recommended that the Permit be denied. DONE AND ENTERED this 1st day of June, 2016, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 2016. COPIES FURNISHED: Marcy I. LaHart, Esquire Marcy I. LaHart, P.A. 4804 Southwest 45th Street Gainesville, Florida 32608-4922 (eServed) Glenn Wallace Rininger, Esquire Department of Environmental Protection Douglas Building, Mail Stop 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Nicholas M. Gieseler, Esquire Steven Gieseler, Esquire Gieseler and Gieseler, P.A. 789 South Federal Highway, Suite 301 Stuart, Florida 34994 (eServed) Jonathan P. Steverson, Secretary Department of Environmental Protection Douglas Building, Mail Stop 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Craig Varn, General Counsel Department of Environmental Protection Douglas Building, Mail Stop 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Stop 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed)
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The respondents J. David Wood and Diane C. Wood are the record owners, as trustees, of a certain parcel of land located in Levy County in the vicinity of Cedar Key, Florida. The Notice of Violation issued by the Department of Environmental Regulation alleges that the respondent Ray E. Dugan is the record owner of lands located immediately adjacent to the the Wood's land. No evidence was received or offered at the hearing to support this allegation, and no appearance was made by the respondent Dugan. When the Woods first occupied the subject property in 1975, a portion of the upland property was being used to dump solid and household waste. It had been used for this purpose for many years, and some water run-off and drainage from the dump flowed into a marsh area at the south end of the dump site. The Woods began a cleanup project to remove the accumulated dump matter, and such work was done over a period of some two years. After the dump area was cleaned, it was bulldozed out so as to create an upland body of water referred to as Lake Boomerang. The depth of this body of water was originally about eighteen inches to two feet. An elbow canal was also created on the east side of the property and was at some point in time joined to Lake Boomerang. Lake Boomerang was used by respondent Wood and Mr. Harvey Hanley as a testing place for a hovercraft project experiment. The hovercraft is a vessel which rides on a cushion of air over the water and can run over smooth land or land subject to only gradual inclines or declines. During the testing of hovercraft, it was necessary to wade out and stand along side the craft. Deep water was detrimental to this. Mr. Hanley did not want or need access to the Gulf For his tests. The Gulf is located to the south of Lake Boomerang and is separated by a land mass. During the early part of March, 1978, the Florida Marine Patrol entered the Wood property and complained of certain dredging and filling activity thereon. Thereafter, certain representatives from the Department of Environmental Regulation and from the United States Corps of Engineers made on- site visits to the subject property and had various discussions with respondent J. David Wood. On or about March 9, 1978, David B. Scott, an environmental specialist with the Petitioner, and Melvin Rector, visited the site for the purpose of making a determination as to whether a permit was necessary for the work being done on the subject properties. Mr. Scott was tendered and accepted as an expert witness in the field of ecology. While on the property during that visit, Mr. Scott observed that dredging had been done parallel to the shoreline and that spoil had been placed in the marsh on the waterward side of the canal. Mr. Scott told Mr. Wood that it appeared that he was in violation of dredging and filling laws and that he would need a permit. Mr. Wood acknowledged that the spoil placed in the marsh was a mistake and would be removed. Some discussion was had regarding an after-the-fact Permit. No commitment to approve such a permit was made by DER representatives, and no application for such a permit was filed by Mr. Wood. On or about March 24, 1978, Steve Hart from DER and David Ferrell, a biologist and project manager for the United States Corps of Engineers, visited the subject property. Mr. Farrell had cone to investigate a spoil mound and dragline on the property which he had observed earlier in March. Mr. Ferrell was told by Mr. Fisher, a caretaker on the property, that the spoil material that had been placed in the marsh would be removed and that the large spoil mound would be spread out on the uplands. On March 27, 1978, Mr. Wood met with David Scott in the Gainesville DER office. They discussed a plan of restoration for the property which included the removal of all spoil from the marsh area and the filling in of excavated areas within the jurisdiction of DER. The construction of a dike was not discussed. On March 29, 1978, Mr. Wood met with David Ferrell and Carlos Espinosa at the Corps of Engineers office in Palatka, Florida, to discuss a plan of restoration. This plan included taking the spoil material out of the marsh and pushing it back into the tidal creek area to its original elevation and configuration. Mr. Wood recalls that a dam or a dike was discussed at this meeting, but neither Mr. Ferrell nor Mr. Espinosa instructed him to construct a dike at this meeting. On or about April 5, 1978, Mr. Ferrell again visited the site to see what progress was being made on the restoration plan. Mr. Ferrell observed that the restoration was proceeding as agreed. He observed the land mass area which had been graded down somewhat and told Mr. Wood that this land mass should remain intact. Mr. Wood asked Mr. Ferrell if fill could be added on top of the land mass area and Mr. Ferrell replied in the affirmative. The next visit to the site occurred on April 19, 1970, with David Scott and David Ferrell present to approve the restoration. On this visit, Scott and Ferrell observed that a dike about two feet high had been constructed approximately eighty (80) feet south or waterward of the original land mass. They further observed that the upland water body had been widened and lengthened so as to extend into DER's jurisdiction and that a channel had been dredged from the dike to the open waters of the Gulf of Mexico. Mr. Ferrell discussed with Mr. Wood a further plan of restoration which included moving the dike northward out of the marsh area and filling in and restoring the area. No specific restoration plan was agreed upon. Respondent's witnesses did recall that Mr. Ferrell had Placed stake marks and boot marks to indicate where the dike was to be moved. Mr. Scott with DER was unwilling to make a further commitment regarding restoration because he felt that the area had changed so drastically that it was difficult to see what changes had occurred. He wanted to review photographs to determine the extent of the violation and necessary restoration. Subsequent to this April 19th visit, DER issued its official notice to the Woods that violations had occurred. Mr. Ferrell and Mr. Espinosa from the Corps of Engineers again went on site on April 28 and May 30, 1978. On April 28, 1978, they observed no additional work having been accomplished. There was testimony from the respondent's witnesses that the dike had been moved northward about eight feet on the eastern end and 20 to 25 feet on the western end subsequent to the April 19, 1978, meeting on the property. Mr. Wood was advised that the dike would have to be removed to the original land mass area and that the tidal creek configuration would have to be restored. On the 30th of May, Mr. Ferrell observed that the upland canal had been connected to a side canal to the east and that the dike had been elevated to approximately six feet. Thereafter, the Corps forwarded the matter to their enforcement section. Mr. Scott, with expertise in ecology; Stephen Gatewood, with expertise in vegetation identification and aerial photography interpretation; and Landon Ross, with expertise in biology, all testified regarding the areas of DER's jurisdiction according to its rules regulations and statutes. This testimony was based upon identification of vegetation in the area, site verifications of landmarks and signatures of vegetation when comparing photographs taken at different time periods. There was also testimony from the respondents regarding a fire ditch or fire break somewhere in the vicinity of the current location of the dike and the vegetation located in said fire ditch. Inasmuch as there was a rather substantial deviation in the testimony of the respondents' witnesses with regard to the exact location of the fire ditch and testimony that neither pine trees growing within the ditch nor the hardness of the soil contained therein would be indicative of DER's jurisdiction, no finding can be based upon testimony concerning the fire ditch. The undersigned finds from the testimony and documentary evidence that the work accomplished by Mr. Wood was undertaken within submerged lands and the transitional zone of submerged lands of waters of the State, thus coming within the jurisdiction of DER. This work includes the waterward channel, the dike, the fill and a portion of the water body dredged landward of the dike. The dredging and filling activities which occurred on the property had the effect of eliminating important marsh areas and harming aquatic, plant and wildlife in the area. The fact that the upland area was used as a dump site for many years up to the edge of the marsh area does not eliminate the harm caused by the removal and destruction of the marsh area, though it may affect the extent of the damage done by the dredging and filling. In order to recover the biological and aquatic value of the area dredged and filled, the land needs to be restored to its preexisting elevation and revegetated. The site could not restore itself naturally within a reasonable period of time. The Department of Environmental Regulation incurred expenses totalling $661.86 in the process of investigating the work being done on the subject property prior to the issuance of the Notice of Violation which initiated this proceeding.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the respondents Wood be found in violation of Section 403.161(1)(a) and (b) as specified in the Notice of Violation and that the Orders for Corrective Action be made binding and final upon the respondents Wood. Respectfully submitted and entered this 13th day of February, 1980, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Silvia Morell Alderman Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Larry Levy Dickinson, Levy and Taylor 346 Barnett Bank Building Tallahassee, Florida 32301 Ray E. Dugan Florida National Bank Building St. Petersburg, Florida 33720 Honorable Jacob Varn Secretary, Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact The proposed project involves tidal wetlands north of Atlantic Boulevard and west of the intercoastal waterway in Duval County, Florida. The proposed dredging would result in the permanent elimination of approximately 68,000 square feet of productive Juncus roemerianus marsh. The salt marsh at this proposed project site is a healthy system, serving as a nursery and feeding habitat for a variety of aquatic organisms. The salt marsh further serves in a filtrative capacity, thereby acting as a nutrient and pollution trap. Filtrative and recycling properties would be completely removed if the area were dredged. The flora of salt marshes provides the primary source of food in estuaries by producing detritus, which is utilized by a variety of consumer organisms. The project would eliminate such flora and thus cause a change in the aquatic community. The expected resultant community would be less desirable than the present community. Species of wildlife expected to utilize the site include the great blue heron, little blue heron, Louisiana heron, great egret, snowy egret, green heron, yellow-crowned night heron, black-crowned night heron, black rail, clapper rail, king rail, osprey, seaside sparrow, marsh rabbit, raccoon, Florida mink, and Eastern diamondback terrapin. Additionally, representative species dependent upon estuarine salt marshes for feeding, spawning, nursery, and refuge habitat include the Atlantic menhaden, Atlantic croaker, Southern flounder, spotted seatrout, juvenile tarpon, penaeid shrimp, and blue crab. Thus, the salt marsh at the project site provides a valuable habitat for a variety of fish and wildlife organisms, contributes to the production of detritus (a rich source of energy which supports the complex estuarine food web), and further contributes to the maintenance of Water Quality by filtering nutrients, sediments, and other pollutants from and upland runoff. The removal of the marsh at the project site would have a negative impact on the immediate area, contrary to the public interest. Additionally, the cumulative impact of the removal of commercially and biologically valuable marshes such as exist at the project site would ultimately result in a decline in fish and wildlife populations in addition to eliminating any such area's ability to naturally filter nutrients and pollutants entering or existing in the water body attendant to the salt marsh. The proposed project will cause short-term violations of the turbidity standard found in Section 17-3.05(2)(d), Florida Administrative Code (Supp. No. 81). Frequent maintenance dredging in the proposed canal will be required. The short-term violations that will occur during the initial dredging and during the subsequent maintenance dredgings will, on a cumulative basis, cause a long-term violation. The increased water depth caused by the dredging will cause inadequate flushing of the water body, resulting in long-term violations of dissolved oxygen and biochemical oxygen demand standards found in Sections 17- 3.05 (2)(e) and E)(Supp. No. 81), and 17-3.09(3)(Supp. No. 35), Florida Administrative Code. Such violations will further be increased on a short-term basis during the initial dredging activities and during maintenance dredgings. Flow in the existing creek will be altered by the artificial topographic discontinuity, causing a flow reduction. The flushing activity between the proposed channel and the receiving body of water will be substantially decreased, thereby causing solids suspension in the water column, impeded sunlight penetration, and turbidity. Pollutants would likely be absorbed by the suspended solids and be retained in the water column. Further, deleterious and toxic substances are likely to be generated and trapped in the channel. Although the area involved in the proposed project may be negligible and the loss in wildlife habitat and in filtrative capacity may not be subject to accurate measurement, clearly the proposed project would provide an adverse effect, and any proliferation of such projects would eliminate an essential wildlife habitat, an essential part of the aquatic food chain, and an essential filtration system.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED That the Petitioner's application for a dredge and fill permit be denied. RECOMMENDED this 17th day of April, 1980, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 1980. COPIES FURNISHED: C. Ray Greene, Jr., Esquire 2600 Gulf Life Tower Jacksonville, Florida 32207 Ms. Silvia Morell Alderman Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Jacob D. Varn, Esquire Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact In 1950, Petitioner acquired lots 8 and 9, block 23, of Lone Palm Beach subdivision, third addition, which lots front on Boca Ciega Bay in Pinellas County, and she has held the property in free simple since. Petitioner's late husband, her predecessor in title, acquired the lots in 1941. They constitute the tip of man-made peninsula jutting bayward from a barrier island bordered on the other side by the Gulf of Mexico. In 1926, the lots did not exist as such, because the peninsula had not yet been built. Petitioner's exhibit No. 10. Since the creation of the lots, their aquatic periphery has varied continually, on account of accretion and reliction. In the first half of the last decade, wooden and metal stakes were sunk along the shoreline, landward of the water's edge. Since then, water has washed away Petitioner's beach, moving the shoreline inland an average distance of approximately thirty feet. Erosion has been more severe along the northern half of Petitioner's beach than along the southern half. Seawalls have been built along adjacent properties on either side of Petitioner's parcel. The evidence did not establish what proportion of this erosion may have been attributable to the effects of Hurricane Agnes or to the location of neighboring seawalls or to any other particular cause. In 1972, the Honorable C. Richard Leavengood, Petitioner's present husband, hired Rupert Osteen, a contractor, to build a seawall. Pinellas County issued a building permit to Mr. Osteen, covering a "Seawall - 356LF - Type D," Petitioner's Exhibit No. 5, on March 14, 1973. (In September of 1951, the Town of Redington Beach had issued a building permit for "Dredging and Filling behind Sea Wall Constructed on [what is now Petitioner's] Rear Property Line.") Construction began, but came to an abrupt halt in July of 1973, when Mr. Osteen was arrested for building a seawall "without having obtained the recommendation of the Chief of Engineers and the Authorization of the Secretary of the Army prior to beginning," a criminal offense of which he was subsequently convicted in the United States District Court for the Middle District of Florida. Respondent's Exhibit No. 4. Before work on the seawall stopped, Petitioner had caused some 4,500 cubic yards of fill dirt to be deposited on the lots. After Mr. Osteen's arrest, Petitioner applied for a fill permit to the Pinellas County Commission, sitting as the Pinellas County Water and Navigation Control Authority. The Authority granted the permit on March 19, 1974, on condition that the seawall be made to tie in with the existing seawall on lot 7, which adjoins Petitioner's property to the west. On or about August 16, 1974, Petitioner applied to the Department of the Army prior to beginning," a criminal offense of which he was subsequently convicted in the United State District Court for the Middle District of Florida. Respondent's Exhibit No. 4. Before work on the seawall stopped, Petitioner had caused some 4,500 cubic yards of fill dirt to be deposited on the lots. After Mr. Osteen's arrest, Petitioner applied for a fill permit to the Pinellas County Commission, sitting as the Pinellas County Water and Navigation Control Authority. The Authority granted the permit on March 19,1974, on condition that the seawall be made to tie in with the existing seawall on lot 7, which adjoins Petitioner's property to the west. On or about August 16, 1974, Petitioner applied to the Department of the Army for a permit, pursuant to Sections 403 and 1344 of Title 33, United States Code. Petitioner applied for the "after the fact" permit at issue in these proceedings on May 10, 1974. At one point in the course of negotiations between Petitioner and Respondent, Mr. Douglas Jones, Chief of Respondent's Bureau of Permitting, indicated that Respondent would permit Petitioner to erect another seawall along the present mean high water line. Eventually, Respondent's staff notified Petitioner that it would recommended denial of an after the fact permit for the existing seawall, and Petitioner filed a request for administrative hearing, which initiated these proceedings. Aerial photographs dating back to 1942 were received in evidence. Respondent's Exhibits Nos. 5 through 11. None of these phontographs show land as far out in the water as the portion of the seawall Mr. Osteen finished. The partially completed seawall is further waterward tan the 1971 interface between land and water. Respondent's Exhibits Nos. 9 and 10. In November of 1973, Alan J. Burdette, Jr., a marine biologist, who is now employed by Respondent, inspected lots 8 and 9 of Lone Palm Beach subdivision and found water in the low area landward of the seawall. More recent photographs indicate that the seawall still stands somewhat offshore. E.g.., Respondent's Exhibit No. 16, taken on September 7, 1977. Mr. Bardette's inspection revealed oyster and fiddler crabs inside the seawall and clams just outside. Mangroves, which were not there at the time construction began, had sprung up. Removal of the seawall would create additional shallow bottom where algae, clams, oysters, mangroves and other marine life could flourish. Mr. R. S. Murali, a hydorgraphic engineer employed by Respondent, visited Petitioner's property the day before the hearing in this matter was held. While he was on the site, the wind blew from the southwest and waves with an average height between eight and nine inches struck Petitioner's unfinished seawall every 1.2 seconds. Mr. Murali discovered evidence of erosion under the seawall, which was caused by wave action. If the seawall were placed more landward, so that waves travelled up a sloping beach before striking it, the erosion problem could be significantly alleviated.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That Petitioner's application for an after the fact fill permit authorizing the seawall which has already been constructed around lots 8 and 9, block 23, of Lone Palm Beach Subdivision, third addition, be denied. DONE and ENTERED this 30th day of November, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 904/488-9675 APPENDIX Paragraph one of Petitioner's Proposed Findings of Fact has been adopted, in substance, insofar as relevant:. Paragraph two of Petitioner's Proposed Findings of Fact has been adopted, in substance, insofar as relevant, except for the date of the permit issued by the Pinellas County Water and Navigation Control Authority, which is immaterial. Paragraph three of Petitioner's Proposed Findings of Fact is apparently predicated on Petitioner's Exhibit No. 12, an uncertified copy of page 74 of Pinellas County's Plat Book 20. Although a handwritten notation on the exhibit reads "Plat Recorded June 21, 1937" such extraneous handwriting on an uncertified copy is not "evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs.". Section 120.58(1)(a), Florida Statutes (1975). The question of the Butler Act's applicability is a question of law rather than of fact and it has not been necessary to decide the question. Paragraph four of Petitioner's Proposed Findings of Fact has not been adopted, for the most part, because of lack of support in the evidence. Paragraph five of Petitioner's Proposed Findings of fact emphasizes that the testimony as to flora and fauna related to a time considerably after application for the after the fact permit was made. While this is true, what is at issue is the ecological consequences of leaving the seawall, so that the relevant time period is the time period beginning when the application was made and extending indefinitely into the future. COPIES FURNISHED: Ms. Carol Haughey, Esq. Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building Tallahassee, Florida 32301 Mr. Ross H. Stanton, Jr., Esq. 280 Florida Federal Building 26274th Street North St. Petersburg, Florida 33704 Ms. Patricia M. Duryee, Esq. Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION DOROTHY B. LEAVENGOOD, Petitioner, vs. CASE NOS. 77-484 STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondents. /
The Issue By this action Petitioner seeks to recover costs, expenses and damages associated with state response to an oil spill incident occurring February 26, 1987, within three miles of the Florida shoreline. Respondent's vessel was responsible for that spill. In particular the costs, expenses and damages claimed are related to salaries, per diem allowances, Federal Express charges, beach sand replacement, equipment, use of a cellular phone, and consulting work at the shore and off site. Petitioner also seeks damages for bird mortality resulting from the spill. See Chapter 376, Florida Statutes, and Chapter 16N- 16, Florida Administrative Code.
Findings Of Fact On the evening of February 26, 1987, the motor vessel Fernpassat struck the south jetty at the entrance to the St. Johns River at a location within three miles of the Florida shoreline. In doing so it ruptured the hull and spilled a substantial amount of heavy fuel oil. The type of the oil was No. 5 or 6 Bunker C. A preliminary estimate placed the amount of oil in excess of 100,000 gallons. While the true amount may have been somewhat less, it was a significant spill in that it substantially threatened the public's welfare and the environment and generated wide public interest. Petitioner's exhibit 3 is a map which depicts the basic location where the vessel collided with the jetty with an "X" mark. The area impacted by the discharge ran from roughly Atlantic Beach, Florida, to Guana State Park in St. Augustine, Florida. This is approximately 25 miles of beach front. Beach property over which Petitioner has regulatory and proprietary responsibility had oil deposited upon it. The oil spill killed or injured a number of birds. The event was responded to by the "Federal Region IV Regional Response Team" (RRT). The federal on-scene coordinator (OSC) was Captain Matthew Woods, U.S. Coast Guard. The RRT, through management and control provided by the OSC, took necessary steps to combat the effects of the spill. Respondent immediately accepted responsibility for the cleanup through the use of a consultant and cleanup contractor. Under this arrangement the OSC monitored the contractor's cleanup efforts to make certain that the job was done satisfactorily. Florida officials were part of the RRT. Rule 16N-16.009(21), Florida Administrative Code, calls for personnel from Petitioner; the State of Florida, Department of Environmental Regulation (DER); and the State of Florida, Department of Community Affairs (DCA) to represent state interests as members of the RRT. Each of these agencies participated as members of the RRT. This furthered the legislative intent expressed at Section 376.021(6), Florida Statutes, to support the RRT through implementation of the "Federal Water Pollution Control Act," which is also known as the "Clean Water Act," 33 U.S.C. ss. 1251-1376. By its efforts the RRT promoted the removal of the oil in accordance with a national contingency plan. Pursuant to Section 376.021(6), Florida Statutes, the state is expected to complement applicable provisions within the "Federal Water Pollution Control Act" as well as render the support previously described. Both the support and complementary functions of the state are part of Florida's "Pollutant Spill and Prevention Control Act," Sections 376.011-376.17, 376.19-376.21, Florida Statutes. Chapters 16N-16, Florida Administrative Code, more completely identifies the role played by the state agencies in this instance. This chapter was adopted pursuant to authority set out in Section 376.07, Florida Statutes, which, among other things, empowered Petitioner to make rules which developed and implemented criteria and plans to respond to spills such as the one at issue. In its complementary role the state has established a "State Response Team" (SRT). This organization in defined at Rule 16N-16.009(13), Florida Administrative Code. It is constituted of predesignated state agencies available continually to respond to a major spill. This incident was a major spill or discharge as defined in Rule 16N-16.009(18), Florida Administrative Code. The predesignated state agencies, pursuant to the rule defining the SRT and Section 376.07(2)(e), Florida Statutes, act independently of the federal authorities, although they are expected to cooperate with the federal authorities in the efforts at cleanup. What that meant here is that notwithstanding the concerns which Captain Woods had and the state participation in the RRT through Petitioner, DER and DCA, there was a parallel function by the SRT which had its own mandate. This allowed the SRT to pursue an independent agenda in the spirit of cooperation with the OSC in an attempt to protect the resources over which the state has jurisdiction, including the beach front and birds. Both Captain Woods and the consultant to the spiller, James L. O'Brien, who is a man of considerable credentials in giving advice about oil spill problems, expressed their understanding of the interests which the state might have in carrying out its functions and did not find that reality a hindrance in performing their duties. As a result, even though state employees and equipment and consultants to the state had limited utility for the OSC and the consultant to the spiller in carrying out their duties, it does not follow that claims by the state for reimbursement in categories set out in the statement of issues must fail unless found to support the OSC or spiller's choice in attempts at cleanup. The question is whether the costs, expenses and damages are reasonably related to support for the RRT or complementary of that function through the SRT and owed or expended from the Florida Coastal Protection Trust Fund (Fund) for recoverable items. See Section 376.11, Florida Statutes. Petitioner's exhibit 15 is a copy of the state contingency plan. See Section 376.07(2)(e), Florida Statutes. It identifies the membership of Petitioner, DER and DCA. Other claimants for costs, expenses, and damages who were involved in the response to this incident as predesignated agencies are the Florida Game and Fresh Water Fish Commission (Commission), the State of Florida, Department of Transportation (DOT), and the Attorney General. The state contingency plan explains the operational responsibilities of state agencies when responding to the incident. This is a more specific reference to those responsibilities as envisioned by the general guidelines announced in the "Pollution Spill Prevention and Control Act." Having considered the testimony and exhibits in the context of the state support and complementary role in responding to the spill contemplated by the aforementioned laws, regulations and contingency plans, the costs, expenses and damages sought by the Petitioner are reasonably related to those purposes. Those costs, expenses and damages are detailed in Petitioner's exhibit 16 and summarized in Petitioner's exhibits 8 and 9. With the exception of $15,654.37 in costs and expenses for Petitioner's Executive Office and Division of Law Enforcement and $3,336.16 for salaries for the Commission, DOT and DCA, all claims for expenses and costs have been paid from the Fund. Petitioner wishes to impose the costs, expenses and damages in the state response whether or not claims were disbursed from the Fund. The damage claim associated with future beach re-nourishment by replacement of sand that had been befouled by oil and needed to be removed is a reasonable claim in the amount of $10,222.50. It has been paid from the Fund and is held in the Erosion Control Trust Fund until needed. The on-scene consulting fee of $3,525.00 and the oil spill assessment study fee of $9,880.00 commissioned by Petitioner through Jacksonville University are reasonably related to the Department's role in response to the spill. As Petitioner's exhibit 8 depicts, $30,312.53 has been disbursed from the Fund in costs, expenses and damages reasonably related to the response to the spill. There remains unpaid from the Fund the aforementioned costs and expenses in the amount of $18,990.53 which are reasonably related to the response to the spill. Those latter amounts, although presented for payment from the Fund by the agencies in question, were not paid, based upon some fiscal anomaly. By inference, it does not appear from this record that the Fund owes the agencies for these claims. According to Section 376.13, Florida Statutes, on February 27, 1987, Governor Martinez declared a state of emergency in response to the oil spill. That proclamation was withdrawn on March 25, 1987. The activities for which claims for costs and expenses are advanced transpired in the time frame of the state of emergency declaration. The amount which Respondent has expended in the cleanup effort is $700,000 plus or minus $200,000. None of this money has been paid to satisfy claims for costs, expenses and damages previously described. While it has been found that costs, expenses, and damages are reasonably related to the state's purposes in responding to the spill, not all items are recoverable. They are only recoverable if recognized for recovery by Chapter 376, Florida Statutes, and Chapter 16N-16, Florida Administrative Code, and owed or expended from the Fund. Petitioner's claims in its exhibit 8 in the amount of $12,901.30 and DOT claims for $675.19 in that exhibit qualify for recovery as well as the on-scene consulting fee of $3,525.00. Other claims do not qualify with the exception of a limited recovery for bird mortality. Reasons for this fact finding are set forth in the conclusions of law. Petitioner has disbursed $176,058.00 to the Commission for damages related to alleged bird mortality. This money was disbursed from the Fund. Petitioner now concedes that the amount should be reduced by half. This recognizes that the cost estimate for damages dealt with pairs of birds not single birds. Petitioner now asks for $88,075.00. Two hundred fourteen (214) birds are said to have died as a result of the spill, according to Petitioner. Petitioner seeks damages for each of these birds. The number proven to have been killed by the event and the theory upon which the damage claim is predicated leads to a result which diminishes the claim for reasons to be explained. As with other claims, Section 376.021.(4)(c), Florida Statutes, anticipates the payment of damages from the Fund. Section 376.11(1), Florida Statutes, is in aid of recovery of damages, as is Section 376.11(4)(d), Florida Statutes. However, these claims must be susceptible to proof that readily identifies and explains valuation methods of the birds and recognizes the predicate of establishing the actual number lost in this episode. For the most part, Petitioner has failed in the endeavor. Mark Damian Duda is a wildlife biologist with the Commission. He earned a bachelor of science degree from West Virginia University and received his master's degree in natural resource policy and planning from Yale University, both with honors. He was assigned the task of trying to arrive at an acceptable method for valuing birds that had been killed. His assessment is generally set forth in a report, a copy of which is Respondent's exhibit 3. Having considered a number of options, he reached the decision to employ what he describes as the replacement value method. Quoting from his report concerning this method, he has this to say: Replacement Value Method We believe the replacement value method is the most useful and logical method to determine the value of wildlife lost in the February 27 Jacksonville oil spill. A replacement cost approach can avoid many of the problems involved in attempting to estimate the use of value of biological resources. Under the replacement cost approach, the resource is valued at what it would cost to replace it. If the resource is replaced, the problems of identifying all its uses, the monetary value of these uses, and the users affected by the resource loss are eliminated, except for the period between the initial loss and the replacement. Four Florida institutions were asked to estimate the cost of obtaining specimens of the birds killed in the Jacksonville oil spill, or the price at which they would be willing to sell members of each species. Their estimates are shown in Table 4. One problem with most of these estimates is that they are not true replacements costs; but rather the cost of collecting already existing specimens from the wild and redistributing them to the Jacksonville Area. This does not represent true replacement, since true replacement requires a complete recovery of the species population. This can be most clearly assured by using only captive breeding programs for replacement. However, many of the species in this list probably cannot be bred in captivity. Therefore, true replacement of these species through captive breeding is probably impossible. It is absurd to value them at zero since they cannot be replaced. Therefore, this section presents some calculations on the assumption that they could be redistributed or replaced. Table 1 presents the replacement costs for the birds. The numbers were derived by multiplying the number of dead birds times the average replacement costs given in Table 4. Using this approach, the total replacement costs for the birds estimated to have been killed in the Jacksonville oil spill is $176,058.00. It should be noted that we use a deliberately conservative approach, using body counts only, and thereby underestimating the total mortality. There is an increasing amount of scientific literature indicating that actual body counts appear to significantly underestimate the total mortality resulting from a spill. For example, there have been a variety of experiments that show only 5 percent to 25 percent of the birds that die at sea, wash in or beach themselves on shore. The percent of loons found is probably even lower because of their low buoyancy and wide-ranging distribution. An alternative approach to estimating replacement costs is to estimate the cost of creating new habitat or enhancing existing habitat to support enough nesting pairs of each species to replenish the population. Again, to represent true replacement costs, this should be new or enhances habitat, not just the cost of acquiring already existing habitat. Tables 1 and 4 within Respondent's exhibit 3 are replicated here for convenience as Appendix 2 and Appendix 3, respectively. The numbers of birds shown in Duda's table are not numbers about which he has direct knowledge. They are numbers purportedly obtained from Tim O'Meara and Peter Southall, biologists who work for the Commission who got their information from the Central Region and Northeast Region, respectively. In particular, they allegedly received their information from rehabilitators working in the two regions. Neither biologist testified at hearing, and the exhibits do not satisfactorily establish what involvement the biologists had in a direct inventory of birds, if any, or the other sources of their information which was then given to Duda in preparing his report. The rehabilitators in the Central Region did not testify nor were any exhibits presented which spoke to records kept by those individuals that set out bird deaths in that area. The only person who presented any reliable information concerning bird mortality was Cindy Mosling, rehabilitator in the Northeast Region. Any records which she maintained were not produced at hearing. Nonetheless, she did remember some details concerning bird mortality, and from this testimony 56 common loons, 3 gannets, 1 black skimmer and 2 hooded mergansers are found to have died as a result of the oil spill. The replacement value method by Duda speaks to the fact that his method does not constitute a complete recovery of the species population. Instead, what is shown in Respondent's exhibit 3 is averaging of estimates from Table 4 on costs for collecting existing specimens from the wild and releasing them back to the Jacksonville area after a period as opposed to a captive breeding program. That explanation is not correct, either, because there is no intention to release birds to the wild after raising them or rehabilitating them in captivity in one of the Florida institutions mentioned in Table 4. Moreover, only one of those programs has been relied upon by Petitioner in arriving at a cost estimate. That program is Sea World. As a consequence, the cost analysis in Table 1 related to hooded mergansers is incorrect in that it reflects an average of $150 and not the $200 quoted by Sea world. Again, the prices reflect pairs and not single birds. Robin Friday is the curator from Sea World who supplied cost estimates for pairs in Table 4 to Respondent's exhibit 3. He arrived at his price estimates in a 15 to 20 minute telephone conversation with Duda. To the extent he had no actual experience with price lists reflecting cost of a specie, he assumed that theoretical permits would be issued to collect live birds or eggs in the wild and that he would keep them in a captive environment, hoping they would breed while in captivity. In the latter category, the costs to promote the outcome of breeding in captivity formed his estimate. It can be seen that this departs from Duda's method for valuation. Notwithstanding this fact, Duda relied upon the price quotation by Friday. The main species of birds which Friday has had experience with are waterfowl. Of the species which have been verified as lost in this incident, he had had experience with common loons and hooded mergansers. The hooded merganser is a waterfowl with which he has close experience in breeding, acquisition and disposition. The common loon is a shore bird. In his career he has worked to rehabilitate two or three of those birds. He has had no experience with gannets and black skimmers, which are shore birds. As Friday identified, waterfowl may be sold, shore birds may not. Sale of the shore birds is prohibited by law. His price quotes for the hooded mergansers are from actual experience in sales. His quotations on the other species are matters of conjecture in collecting, housing, feeding and establishing a breeding program for them based upon limited experience in rehabilitating common loons and no experience with gannets and the black skimmer. The price estimate on the hooded merganser of $100 per bird is accepted. The price estimates for common loons, gannets and black skimmers are not. They are too speculative. Jean Benchinol is a curator in Gulf Breeze, Florida, who works for Animal Park, Inc. She testified at hearing. She was presented as a witness who could corroborate the Friday opinion on bird valuation. Her cost estimates may be found as Petitioner's exhibit 14, quotes for single birds. She has had direct involvement with hooded mergansers. She has sold those birds and quoted the price at hearing as being $100. This coincides with the price per bird quoted by Friday. For other birds in her price estimates that cannot be bought and sold and that remain at issue here, that is, common loons, gannets and the black skimmer, she categorized them as capable of surviving in captivity or not. The black skimmers can live in captivity and the common loon and gannet cannot, according to the witness. She had had a common loon in captivity before and noted that it did not do well, being more receptive to northern climes. At hearing her opinion about birds that could not survive in the Florida environment was rejected. In this final analysis, that refers to the common loons and gannets. Likewise, having considered her explanation concerning her valuation for the black skimmer, that opinion is rejected. In rejecting this method, the cross examination at hearing concerning valuation for the royal tern was significant in that it pointed out the inexact and unreliable nature of the method. This method contemplated receiving a live bird in her facility and the costs for medication, housing, feeding and staff time for approximately 60 days. In summary, on the subject of bird mortality, there is no inherent prohibition against valuation; birds do have a value that can be measured in monetary terms. Here the effort to arrive at that understanding fails in the inventory of casualties and method of valuation, with a limited exception. It is also observed that the Respondent had paid the rehabilitators to house, feed and nurse birds back to health that were injured, a similar activity to the theoretical exercise envisioned by Duda, Friday and Benchinol.
Recommendation Based upon the consideration of the facts and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which requires the Respondent to reimburse the Fund in the amount of $17,301.58 and dismisses all other charges against Respondent. DONE and ENTERED this 26th day of July, 1990, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1990. APPENDIX 1 The following discussion is given concerning the proposed facts of the parties. Petitioner's Facts Paragraphs 1 and 2 are subordinate to facts found. Paragraph 3 is not necessary to the resolution of the dispute. Paragraphs 4 and 5 are subordinate to facts found. The first two sentences of Paragraph 6 are subordinate to facts found. The last two sentences are not necessary to the resolution of the dispute. Paragraph 7 is not necessary to the resolution of the dispute. Paragraph 8 is subordinate to facts found. The first two sentences of Paragraph 9 are subordinate to facts found. While it is agreed that the correspondence from Petitioner to Respondent did not indicate that claims for costs and expenses were only subject to collection if paid from the Florida Coastal Protection Trust Fund, in the administrative forum recoupment of costs, expenses and damages may only be permitted for monies owed or expended from the fund. Paragraphs 10-13 are subordinate to facts found. It is acknowledged as set forth in Paragraph 14 that money was transferred from Coastal Protection Trust Fund to the Erosion Control Trust Fund for future beach renourishment. The more relevant fact is whether the claim for damages of value under the renourishment is legitimate and that determination has been made favoring the Petitioner. The concept of using the funds that are being held for purposes of future renourishment is in keeping with a reasonable disposition of the damage claim. Paragraphs 15-24 are subordinate to facts found. The first sentence to Paragraph 25 is contrary to facts found. The second sentence is subordinate to facts found. The third sentence is an accurate statement of what Table 1 contributes but the findings in that table are rejected in part. The first sentence to Paragraph 26 is subordinate to facts found. The second sentence is accepted in the sense of recognizing that a list was maintained; however, that list was not produced at hearing as an aide in determining the number of birds that were killed. The third sentence is rejected. The fourth and fifth sentences are knowledged and those underlying facts were taken into account in accepting the representations by the witness Mosling concerning the number of birds that died as a result of the oil spill which she could recall. Paragraph 27 is subordinate to facts found. Paragraph 28 is subordinate to facts found. Paragraph 29 is not necessary to the resolution of the dispute. The first sentence to Paragraph 30 is subordinate to facts found. The second sentence is not necessary to the resolution of the dispute. The first sentence to Paragraph 31 is subordinate to facts found. The second sentence is accepted with the exception that certain categories of water fowl are bought and sold in the free market. Concerning the third sentence, while it is acknowledged that curators are the better persons to attempt valuation, they must have sufficient understanding of the varieties on which they are commenting to have their opinions accepted and their methods of analysis of costs must stand scrutiny. This was not achieved in this instance. The last sentence in Paragraph 31 is not accepted in that the replacement value method was not adequately explained and does not allow a ranking of whether it is inexpensive, or cheaper or some where in the middle. Paragraph 32 is subordinate to facts found. The first sentence to Paragraph 33 is subordinate to facts found. The second sentence is subordinate to facts found as it references hooded mergansers. The other references are to species which have not been found to have been lost to the spill. The last sentence is accepted in the sense that the remaining species have limitations placed upon their use by state and federal law which prohibits the buying and selling. Paragraph 34 in its reference to the cost of hooded mergansers is accepted. The balance of the information was not utilized in that the Petitioner failed to demonstrate that other species had been lost to the spill. In Paragraph 35 of the species that testimony was presented about, only the common loon, gannets and black skimmer pertain. While it is acknowledged that the method that the witness Friday used to estimate the value of those species is an accurate portrayal of his efforts, those efforts were rejected as were those of Ms. Benchinol described in Paragraph 36. In Paragraph 36 the explanation of her methods is correct. The methods were not accepted either in support of the testimony by Friday or in her own right. There is no significance to the discussion concerning the brown pelican and inadequate proof was made that the brown pelicans were lost. Respondent's Facts The first sentence to Paragraphs 1 is subordinate to facts found. The last two sentences are not necessary to the resolution of the dispute. As to Paragraph 2, it is acknowledged that Mr. Healey served as the liaison to the RRT and OSC. In the second sentence to that paragraph it is accepted that the state supports the RRT. It also has the function to compliment the RRT and to act independent of the federal response. The first sentence to Paragraph 3 is subordinate to facts found. The second and third sentences are not necessary to the resolution of the dispute. The fourth and fifth sentences are subordinate to facts found. While Paragraph 4 accurately describes the circumstance, this did not deter the state from pursuing its independent function in responding to the spill event. Paragraph 5 accurately portrays the OCS's idea of who was necessary to support the federal response. It does not preclude the activities of other state employees in carrying out their functions. Paragraph 6 is contrary to facts found. Paragraph 7 is a correct statement but does not preclude the state's efforts in its own right at responding to the spill. Paragraph 8 is subordinate to facts found. Paragraph 9 while an accurate portrayal does not preclude the state in its efforts. The same pertains to Paragraph 10. Paragraph 11 is contrary to facts found. Paragraph 12 is subordinate to facts found. Paragraph 13 is contrary to facts found as is Paragraph 14. Paragraph 15 is subordinate to facts found. Paragraph 16 is not relevant. Paragraph 17 is an accurate portrayal of the federal use of the state helicopter but does not preclude request for reimbursement for uses which the state had of that helicopter. Paragraph 18 is subordinate to facts found. The first two sentences within Paragraph 19 are subordinate to facts found. The third and fourth sentences are not relevant to the issue of whether the state was entitled to seek the assistance or Jacksonville University for its own purposes distinct from those of the federal response. The latter sentence is a correct portrayal of the outcome but for reasons different than contemplated by the Respondent. Paragraph 20 is subordinate to facts found. Paragraph 21 is subordinate to facts found. Paragraph 22 is subordinate to facts found in its first two sentences. The third sentence is not accepted beyond the fact that the Department of Interior using a nonconsumptive use technique, whether other federal agencies use that method was not subject to determination from the record. The first three sentences to Paragraph 23 are not necessary to the resolution of the dispute. The fourth sentence is not accepted. The fifth and sixth sentences are subordinate to facts found. As to the seventh sentence, it is not clear that there was the intention of redistributing to the Jacksonville area. The eighth sentence is subordinate to facts found. Paragraph 24 is subordinate to facts found as are Paragraphs 25 and 26. The suggestion of the price for hooded mergansers as set out in Paragraph 27 is not accepted. The lesser scaup was not found to have been lost to the spill. The state price of $100.00 per bird for hooded mergansers is accepted. Paragraphs 28-31 are subordinate to facts found as it pertains to the species that were proven to have been lost. Paragraph 32 is not necessary to the resolution of the dispute. Paragraphs 33 and 34 are subordinate to facts found, with the exception that it has been determined that the number of dead birds which Ms. Mosling can recall involvement with is accepted. Paragraphs 35 through 37 are subordinate to facts found in the species determined to have been lost, with the exception that the actual price for hooded mergansers was $100. COPIES FURNISHED: Tom Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, FL 32399 Kenneth J. Plante, General Counsel Lynn M. Finnegan, Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, FL 32399 Robert B. Parrish, Esquire James F. Moody, Jr., Esquire Taylor, Moseley & Joyner 501 West Bay Street Jacksonville, FL 32202
