Findings Of Fact On or about April 5, 1988, Petitioner filed an application for a variance to replace an existing four foot fence extending to the seawall on his property at 643 Harbor Island, Lot 12 Island Estates, Clearwater, Florida. The subject property is zoned RS-6. Petitioner had already replaced his previous fencing prior to the filing of this application with wooden fencing which extends on the north and south side of his property through the setback to the seawall. The Development Code Adjustment Board considered Petitioner's application at its meeting on May 12, 1988, and based upon the Petitioner's explanation that the variance was sought simply to replace an existing fence that had termite damage, the Board approved his application on a 3 to 2 vote. The variance approval was conditioned upon the Petitioner obtaining a building permit within one month of the approval. Petitioner failed to obtain the required building permit, and no excuse was offered for this failure. Therefore, he had to reapply for the variance. On or about July 21, 1988, Petitioner filed his variance reapplication. The Development Code Adjustment Board considered this reapplication on August 25, 1988, at which time Petitioner again stated that he was simply replacing an existing fence. Due to a tie vote, consideration of the reapplication was continued to the Board's meeting of September 8, 1988. At the meeting on September 8, he explained for the first time that while the fencing on the south side of his property was simply the replacement of a previous fence which had extended to the seawall, the fencing on the north side was not. The previous fence on the north side of his property had stopped prior to the fifteen foot setback. With this clarification, the Board approved his variance reapplication for the south side of his property, but denied the variance for the north side. Petitioner has timely appealed the denial of his variance reapplication as it relates to the north side of his property. Petitioner testified at hearing that prior to the construction of his current wooden fence, he had a wood fence all the way to the seawall on the south side of his property. Since he had to replace that fencing due to termite damage, he took the opportunity to also replace and extend the wooden fencing on the northern side of his property through the setback. This action was not based on any hardship, but simply because he and his family felt it would look better if he had the same fencing on both sides of his property. It is clear and undisputed that Petitioner constructed a new fence on the north side of his property through the setback without obtaining a variance or permit. He did this simply for aesthetic reasons, and not due to any hardship. He failed to disclose this in his applications, or when the Board met on May 12 and August 25, 1988 to consider this matter.
The Issue The following issues have been raised by the Department: Did the Respondents carry out any dredge, fill and bulkhead activities on Mr. Romaine's land within the "waters of Florida"; if so, to what extent? If dredge, fill and bulkhead activities took place within the waters of Florida, did they cause any damage to the natural resources the Department is charged with protecting; and, if so, to what extent? If such activities took place within the waters of Florida, what actions would be appropriate to remedy the violations and the damage caused? What is the amount of expense and damage, if any, which the Respondents should be required to pay to the Department?
Findings Of Fact Mr. Romaine and his wife Purchased land along the shore of the St. Johns River on December 10, 1984. The property was purchased from Milton C. and Cheri A. Rosberg and was secured by mortgage from James L. Tison, Jr., and Frances S. Tison. The land purchased by the Romaines (hereinafter referred to as the "Property") is located on the westerly bank of the St. Johns River in Clay County, Florida. The Property is more particularly described in the copy of the Warranty Deed accepted into evidence as the Department's exhibit 1. The property immediately to the north of the Property is owned by Mr. Rosberg. The property immediately to the south of the Property is owned by Mr. and Mrs. Tison. The Tisons have resided on the property to the south of the Property for approximately 27 years. The Tisons formerly owned the Property. Mr. Tison mowed the grass on the Property and otherwise maintained the Property prior to its sale. The Tisons are familiar with the shoreline of the St. Johns River along the Property both before and after December of 1985. During the latter part of 1985, Mr. Romaine contracted with B & W for the construction of a bulkhead along the western border of the Property and the St. Johns River. From approximately December 3, 1985, to December 7, 1985, a bulkhead was built along the portion of the Property fronting on the St. Johns River. No application for dredge and fill or bulkhead activities was filed with the Department with regard to the activity on the Property, and no such permit was issued by the Department. Mr. Romaine relied upon B & W to obtain any permits required for the construction of the bulkhead on the Property. The Department was not asked whether a permit was required for the construction of the bulkhead on the Property. Other State and federal agencies were consulted concerning their jurisdiction over the construction of the bulkhead on the Property. In addition to the portion of the bulkhead constructed on the Property, approximately 31 feet of bulkhead was constructed from the border of the Property with Mr. Rosberg's property north to a dock located on Mr. Rosberg's property. Mr. Rosberg gave Mr. Romaine permission to use the dock in exchange for the construction of this portion of the bulkhead. For purposes of presenting evidence, the Department divided the bulkhead constructed along the Property into two sections: Area "A" and Area "B." Area A consists of a portion of the bulkhead which begins at the border of the Property and Mr. Rosberg's property and runs in a relatively straight line to the south for approximately 48.2 feet. The bulkhead then begins a gradual, then more pronounced, curve to the west. This is the end of Area A. The bulkhead in Area B goes almost perpendicular to the tangent of the curve in a southern to southwesterly direction in a straight line for approximately 23 feet. The bulkhead then makes a sharp turn to the west and proceeds in a straight line for approximately 12.5 feet where it intersects with the Property's southern boundary. Areas A and B are shown on the Department's exhibit 2 and Romaine exhibit 8. The designation of Areas A and B on these exhibits was not prepared by a licensed surveyor; the designation was intended only as an approximate drawing of portions of the Property. A wetland area is an area which experiences flooding or inundation of water often enough for the area to become defined by species of plants and soils characteristic of areas subject to flooding or inundation of water. Wetlands are potentially the most important part of a water body. Wetlands can maintain water quality, acting as the "kidneys" of a water body, provide habitat not found elsewhere, act as a flood storage area, protect against erosion and play an essential role in the life cycle of aquatic plant and animal life. Water quality will deteriorate if wetlands are destroyed. The wetlands that border the St. Johns River act as a flood plain where water is stored during periods when the River is high. The determination of the extent, if any, of the Department's jurisdiction over the bulkhead built on the Property, is more difficult in this case than in a case where a permit is applied for because of the inability of the Department's experts to examine the Property in its natural, undisturbed state. Because of the changes to the natural state of the Property, including filling activities, many of the natural indicators used to determine the Department's jurisdictional line on the Property have been eliminated or altered. If there is insufficient physical or other evidence to the contrary, the landowner should be given the benefit of any doubt the Department has in setting the Department's jurisdictional line and a line of restoration where property is examined after it has been altered. In determining the extent of the Department's jurisdiction in this case, the starting point is the St. Johns River itself. The open water of the St. Johns River is a water body over which the Department has jurisdiction pursuant to the Florida Administrative Code. Area B used to be a wetlands area prior to the placement of the bulkhead on the Property and the placement of fill behind the bulkhead. This finding of fact is supported, in part, by the location of a large cypress tree, which is a wetlands tree. This tree is the first tree encountered behind the bulkhead in Area B and is the dominant upper canopy vegetation. This tree has been marked by a red "X" on the Department's exhibits 2, 3 and 7. Additionally, the area to the east and south of the bulkhead (between the bulkhead and the St. Johns River) still remains as wetlands. Because of the alteration of Area B by the bulkhead and the placement of fill behind the bulkhead, it is not possible to determine exactly how far the Department's jurisdictional line goes landward from the shore of the St. Johns River. At a minimum, the area between the dashed line and the bulkhead on the Department's exhibit 3 constitutes wetlands and lands within the Department's jurisdiction. By filling the area identified in the Department's exhibit 3 as within the Department's jurisdiction, wetlands of the St. Johns River have been destroyed. This has resulted in the elimination of an area which served the functions of wetlands as explained in findings of fact 10-12. To ignore the fact that the construction of the bulkhead was completed without a permit or to now grant a permit could affect other bulkhead and fill projects along the St. Johns River. Even though the effect of the filling of Area B may be small, the cumulative impact of the destruction of multiple small areas of wetland would have an overall negative effect on the quality of the St. Johns River. In order to remedy the damage in Area B the original status quo of the area should be restored. This requires the removal of the bulkhead in Area B and all fill added behind the bulkhead in Area B down to the original contour of the land and revegetating the area with indigenous wetland vegetation. During this process, steps must be taken to control turbidity and to prevent pollution of adjacent waters. Additionally, it would be appropriate to require that numbered paragraphs 5c, 6, 7, 8 and 9, in the Department's exhibit 10, be complied with in restoring Area B. The Department's experts were unable to say where the Department's jurisdictional line was located in Area A of the Property because there was no physical evidence remaining after construction of the bulkhead from which it could be determined where the natural shoreline of the St. Johns River was located at the time of the Department's examinations. Despite the inability of the Department's experts to precisely locate the Department's jurisdictional line based upon the current condition of Area A, other evidence supports a finding of fact that the bulkhead in Area A was built within the jurisdiction of the Department. In particular, the testimony of Mr. and Mrs. Tison and the Department's exhibits 12A-12D, support a finding that the portion of the bulkhead constructed in Area A of the Property extends into the waters of the St. Johns River to the east of the former shoreline of the Property. Fill was then placed into the River between the bulkhead and the former shoreline. Mr. Tison drew a line in red on the Department's exhibit 11. This line represents the approximate former shoreline of the St. Johns River prior to the construction of the bulkhead on the Property. The area between this red line and the bulkhead is within the Department's jurisdiction. B & W used a Case 410 tractor backhoe to construct the bulkhead. This tractor had outside wheels eighty-two inches apart and it weighed approximately 14,000 pounds. A bucket at the end of the tractor was used for digging. The bucket was approximately two feet wide and the arm, when fully extended, could perform work approximately eight feet away from the body of the tractor. After digging a trench where the bulkhead was to be placed in Area A, a water jet was used to sink four-by-six posts five feet apart. Two-by-eight boards were then stacked between the posts six boards high. The backhoe was used to dig a hole approximately twelve feet behind each post where a deadman was sunk or a tieback was attached to each post. The Department's exhibits 12A-12D are Photographs of Area A during the construction of the bulkhead. They all show water of the St. Johns River between the posts to the west where the shoreline of the St. Johns River was located. Based upon the size of the backhoe, Mr. Woodyard's testimony that the backhoe's wheels, while the backhoe straddled the bulkhead area to dig the trench, were on dry land is not credible. The Department's exhibits 12A and 12D show a leaning cypress tree in the waters of the St. Johns River. The bulkhead posts pictured in these exhibits are several feet into the River. In Romaine's exhibits 3 and 4, and the Department's exhibit 4 the same leaning cypress tree is several feet landward of the bulkhead. The Department's exhibit 12C shows the bucket of the backhoe totally submerged in the waters of the St. Johns River. This further supports a finding that dredging and filling occurred in the waters of the St. Johns River. When the Department's exhibits 12A-12D (photographs of the bulkhead construction in Area A) are compared with Romaine exhibits 3 and 4 and other photographs taken after construction of the bulkhead in Area A, it is evident that fill was placed between the bulkhead and the former shoreline of the St. Johns River. The construction of the bulkhead in Area A has caused the same damage that the construction of the bulkhead in Area B caused. The same remedy suggested for Area B would also be appropriate for Area A. The Department incurred $730.17 in its investigation of this matter and the preparation for the formal hearing of this case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued finding that the Respondents have violated Section 403.161(1)(a) and (b), Florida Statutes (1987). It is further RECOMMENDED that the Final Order provide that the Respondents, jointly and severally, must pay $730.17 to the Department within twenty (20) days from the date of the Final Order in this case in reimbursement of the Department's expenses. Payment shall be made by cashiers check or money order and shall be payable to the Department of Environmental Regulation. Payment shall be sent to the Department of Environmental Regulation, Northeast District, 3426 Bills Road, Jacksonville, Florida 32207. It is further RECOMMENDED that the Final Order Provide that the Respondents are to restore the areas of the Property described in this Recommended Order within Sixty (60) days from the date of the Final Order as follows: All of the vertical bulkhead located on the Property shall be removed; All fill material within the jurisdiction of the Department shall be removed and placed upland of the Department's jurisdiction as described in this Recommended Order (the portion of Area A between the St. Johns River and the line drawn in red on the Department's exhibit 11 and the portion of Area B between the St. Johns River and the dashed line on the Department's exhibits 2, 3 and 7. The area from which the fill material is removed shall be restored to the elevation which existed prior to the violation; and During restoration of the Property, adjacent areas within the jurisdiction of the St. Johns River shall not be disturbed unless otherwise approved by the Department in writing. It is further RECOMMENDED that the Final Order provide that the Respondents shall carry out the activities described in paragraphs 5c, 6, 7, 8 and 9 of the Department's exhibit 10. It is further RECOMMENDED that the Final Order Provide that the Respondents are not to undertake any additional dredge and fill activities within the waters of Florida, other than the restoration measures described in the Final Order, without obtaining a permit or written notice that the work is exempted from permitting from the Department. It is further RECOMMENDED that the Final Order provide that the Respondents are to allow authorized representatives of the Department access to the Property at reasonable times for purposes of determining compliance with the Final Order in this case and with Chapter 403, Florida Statutes, and the Department's rules promulgated thereunder. DONE and ENTERED this 2nd day of March, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1988. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Petitioner's Proposed Findings of Fact: Proposed Finding Paragraph Number in Recommended Order of Fact of Acceptance or Reason for Rejection 1 Hereby accepted. 2 1. 3 3 and 9. 4 13. 5 These proposed findings are not necessary. They affect the weight to be given to some of the evidence. 6 10. 7 11. 8 12. 9 14. The portion of this proposed finding after the first sentence constitutes proposed conclusions of law. 10. Hereby accepted. 11 13. 12 20. The portion of this proposed finding after the first two sentences constitutes proposed conclusions of law. 13-15 These paragraphs are not proposed findings of fact. They are summaries of testimony. See 15-17. 16 This paragraph is not a proposed finding of fact. It is a summary of testimony concerning law. 17-19 These paragraphs are not proposed findings of fact. They are summaries of testimony. See 18-19 and 28. These proposed findings are not necessary. They affect the weight to be given to some of the evidence. Summary of testimony. 22 6. 23 29. 24-26 Summary of testimony. See 3 and 21. The weight of the evidence did not support a finding that the fill in Area A extended into the St. Johns River approximately 20 feet at its widest point. 27 5 and 7. 28 8. 29 Hereby accepted. 30 22. 31-32 Summary of testimony. See 23-25. 33 25. Not Supported by the weight of the evidence. 26. The last sentence is not supported by the weight of the evidence. Cumulative and unnecessary. 37 27 38-39 Conclusions of law and argument. 40-41 Hereby accepted. Mr. Romaine's Proposed Findings of Fact: The first paragraph under the Findings of Fact portion of Mr. Romaine's proposed recommended order does not contain any relevant findings of fact. Summary of testimony and irrelevant proposed findings of fact. Summary of evidence. The following numbers correspond to the numbers of the sentences contained in Mr. Romaine's "Procedural Statement." 1 and 3. 4 and 7. Hereby accepted. Irrelevant. 5-6 Not supported by the weight of the evidence. See 5 and 6. 7-17, 19-27 32-39 and 42 Irrelevant or not supported by the weight of the evidence presented at the formal hearing. 18, 28-31 and 40-41 Hereby accepted. COPIES FURNISHED TO: JOHN P. INGLE, ESQUIRE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION TWIN TOWERS OFFICE BUILDING 2600 BLAIR STONE ROAD TALLAHASSEE, FLORIDA 32399-2400 WILLIAM A. ROMAINE 2127 WINTERBOURNE, WEST ORANGE PARK, FLORIDA 32073-5621 ROBERT E. WOODYARD, PRESIDENT B & W MARINE CONSTRUCTION, INC. 4611 LAKESIDE DRIVE JACKSONVILLE, FLORIDA 32210 DALE TWACHTMANN, SECRETARY STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION TWIN TOWERS OFFICE BUILDING 2600 BLAIR STONE ROAD TALLAHASSEE, FLORIDA 32399-2400 DANIEL H. THOMPSON, ESQUIRE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION TWIN TOWERS OFFICE BUILDING 2600 BLAIR STONE ROAD TALLAHASSEE, FLORIDA 32399-2400
The Issue Whether or not Petitioner is entitled to a dredge and fill permit to construct a dock and seawall by provision of reasonable assurances that the project is in the public interest.
Findings Of Fact On May 8, 1989, the Petitioner, Kathryn Haughney, applied to DER for a permit to construct a dock and seawall on the shore of the Halifax River in Volusia County. The portion of the Haughney property where the dock and seawall would be constructed is separated from the Haughney home by John Anderson Drive, which parallels the river's edge and is separated from the river by a ribbon of undeveloped property at that location and to the south. A house is located at water's edge on the lot to the north of the proposed construction site. The Haughney home itself is set well back from John Anderson drive on the side of the street away from the river. The Halifax River is classified as a Class III water body under DER rules. The particular part of the Halifax River where the Haughney property is located and where the dock and seawall are proposed is also within the Tomoka Marsh Aquatic Preserve, which is an Outstanding Florida Water under DER rules. The dock as proposed by Petitioner will be 320 square feet. DER denied the permit application on July 19, 1990, but in so doing did not deny the application on the basis of the proposed dock, which, because of its dimensions, is exempt from DER permitting requirements. The seawall as proposed is to be 137 feet long. Petitioner applied to extend it 16 feet out into waters of the state at the northern end, gradually increasing to 34 feet into waters of the state at the south end. Additionally, 5 feet of riprap would also extend out into waters of the state along the seawall's entire length. The waters of the state that would be filled by the proposed seawall contain lush wetland vegetation that provides habitat for a number of macroinvertebrate species which are part of the food chain feeding fish and wading birds such as egrets and herons. Fiddler crabs and colonies of mussels have been observed on the site. The area to be filled provides a valuable habitat for fish and wildlife. There was no mitigation offered by Petitioner to make up for the loss of habitat to be occasioned by the proposed construction. Although Petitioner asserted DER had named no "endangered species" and that the Environmental Protection Administration had not designated this area as "endangered," those federal concerns were not at issue. If such federally designated species or location designation existed in the locale, it might militate against granting this application for permit, but in the negative, it is irrelevant. A vertical seawall exists immediately north of Petitioner's shoreline. The shoreline to the south remains undeveloped. (See Finding of Fact 2). Construction of seawalls, especially those that extend out from the existing shoreline, typically causes erosion on adjacent shorelines, and additional seawalls exaggerate wave energy and can have a cumulative erosive effect. The foregoing fact is found in reliance upon the testimony of Don Medellin, an Environmental Specialist II for DER, and Barbara Bess, an Environmental Manager for DER, both accepted as experts in environmental aspects of dredge and fill permits. The assertion that actual erosion on the property to the south has already occurred was contained in a letter from Petitioner's southern neighbor (DER Exhibit 6). Petitioner's representatives objected to consideration of this exhibit as "hearsay." They are correct and current erosion to the south is not found as a fact. Nonetheless, actual erosion in a pocket on the north end of Petitioner's shoreline has been shown by the direct testimony of Emmett and Martha Haughney, who assert that their property is eroding due to the existing seawall and that Petitioner wants a permit for a seawall to alleviate this erosion. Their evidence is confirmed by the personal observations and testimony of Mr. Medellin and Ms. Bess. Further, upon their testimony, it is accepted that this minimal pocket of erosion is most likely due to the existing seawall to the north and that if the Petitioner builds a seawall to the specifications now set out in the permit application, there is potential for similar and perhaps cumulative erosion to the shoreline to the south of Petitioner's lot. Neither the city nor county involved has land use restrictions which would prohibit Petitioner's proposed seawall except that Volusia County advocates riprap requirements if this permit application were granted. In its Notice of Permit Denial, DER advised Petitioner as follows: The Department has determined that the follow- ing changes to the project may make the project permittable: The vertical seawall should be eliminated and replaced with coquina rock riprap revet- ment. The riprap should be located further landward and conform to the slope of the existing embankment. Backfilling on the north property line is acceptable provided the fill area does not extend more than 10 feet westward in the most eroded area. Accordingly, the riprap could extend to the adjacent seawall and gradually extend in a more landward direc- tion to prevent excessive elimination of the littoral zone vegetation. Whatever alternative the applicant elects to choose, the removal or elimination of littoral zone vegetation must be offset in the form of mitigation if the impacts can not be reduced any further. Finally, the agent should eliminate the use of generic drawings which must be continually revised. All drawings should reflect the existing and proposed conditions and the impacts associated with the project. Petitioner's contractor, Andy Harris, testified to other alternatives that could be used by Petitioner in constructing her seawall, but the evidence of Mr. Medellin and Ms. Bess is persuasive that the alternative measures proposed by Mr. Harris would not provide the reasonable assurances the law requires DER to obtain from Petitioner.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order affirming its July 19, 1990 Notice of Permit Denial. RECOMMENDED this 25th day of April, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 25th day of April, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7215 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's letter to Hearing Officer (filed March 22, 1991) The first paragraph complains that a VCR was unavailable in the hearing room so that Petitioner's videotape could not be shown. Petitioner should have made arrangements for showing the tape and did not. Likewise, Petitioner never offered the tape in evidence (for viewing by the Hearing Officer afterwards in preparation of this Recommended Order). Therefore, it very properly was not considered. The next 3 paragraphs refer to the Casden letter (DER Exhibit 6), which is covered in FOF 8-9. The remaining paragraphs are rhetoric and legal argument upon which no ruling need to made under Section 120.59(2) F.S.; however, they are alluded to in the Conclusions of Law. Petitioner's letter to DER Counsel (filed March 25, 1991 by DER, suggesting it was Petitioner's proposed findings of fact) 1-3 For the reasons set out above, the Petitioner's videotape was not considered. The subject of erosion to the degree proved at the hearing is covered in the Recommended Order. 4-5, PS 1-3 Mere rhetoric and legal argument upon which no ruling need be made under Section 120.59(2) F.S.; covered in the Conclusions of Law to the degree appropriate. Respondent's PFOF: 1-11 Accepted as modified to reflect the greater weight of the credible and probative record evidence as a whole. That which is rejected is rejected as not proven or not persuasive. Unnecessary or irrelevant material has likewise been excluded. COPIES FURNISHED: Douglas MacLaughlin Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kathryn Haughney 2301 John Anderson Drive Ormond Beach, FL 32074 Emmett and Martha Haughney 2301 John Anderson Drive Ormond Beach, FL 32074 Carol Browner, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue Whether Respondent Richardson’s application for a wetlands resource permit to construct a private road and bridge through wetlands should be denied for failing to provide mitigation to offset the impacts to existing wetlands. Whether Respondent Richardson had provided the Department with reasonable assurance that he or she owns or has sufficient authorization to use certain land in mitigation to offset the wetland impacts.
Findings Of Fact In January of 1990, John Richardson applied to the Department for a wetland resource (dredge and fill) permit under Section 403.918, Florida Statutes to construct a private road and bridge through wetlands. The proposed project would impact 0.032 acres of wetland. The proposed project is not located in an Outstanding Florida Water (OFW). The proposed project would adversely affect the following: the conservation of fish and wildlife; the fishing, recreational values, and marine productivity in the vicinity of the proposed project; and the current condition and relative value of functions being performed by the wetlands impacted by the project. The proposed project would be permanent in nature. The proposed project would not meet the criteria of Section 403.918(2)(a) Florida Statutes, without mitigation adequate to offset the impacts to wetlands. To provide adequate mitigation for the proposed project, Respondent John Richardson proposed to create and preserve 0.029 acres of new wetlands and preserve 4.35 acres of existing wetlands. The preservation would consist of granting to the Department a perpetual conservation easement over the mitigation wetlands. Respondent John Richardson represented to the Department that he was the record owner or had permission to use the land that he offered for mitigation. The Department reasonably relied on that representation. The mitigation proposed by Respondent John Richardson would be adequate to offset the impacts to wetlands resulting from the proposed project. On March 4, 1992, the Department issued to John Richardson a wetlands resource permit for the proposed project. The Department was not aware, before it issued this permit, that John Richardson might not own or have permission to use the mitigation land. The Department was substantially justified in issuing the permit to John Richardson on March 4, 1992. Specific conditions 28-31 of that permit required Respondent John Richardson to grant the Department a conservation easement over the mitigation land within thirty days after issuance of the permit. Respondent John Richardson failed to grant the Department the required conservation easement, and failed to publish notice of the Department’s action. On July 22, 1996, Petitioners filed a timely petition with the Department challenging the Department’s issuance of the March 4, 1992, permit to Respondent John Richardson. On September 11, 1996, Janet Richardson filed an application with the Department for transfer of the March 4, 1992, permit to her following the dissolution of marriage with John Richardson. By letter dated October 11, 1996, the Department requested Janet Richardson to provide additional documentation to show that she either owns the mitigation land or has permission to use that land. Janet Richardson was required to provide a legal survey drawing depicting the mitigation land, property records showing ownership of that land, and a notarized statement from the land owner authorizing her to use that land. The Department specifically advised Janet Richardson that it could not approve the proposed project if she failed to submit this requested documentation to the Department prior to the final hearing. Janet Richardson failed to provide the requested documentation by the date of the final hearing in this matter, or subsequently. As of November 6, 1996, no work had begun on the proposed project. At the hearing, the Department adequately explained its change in position from deciding to issue the permit (on March 4, 1992) and proposing denial of the permit (on November 6, 1996). The Department relies on an applicant’s representations regarding ownership of or right to use land unless a problem is brought to the Department’s attention. In this case, the Department was not aware that there was a problem with the applicant’s right to use the mitigation land until the petition was filed with the Department on July 22, 1996. Janet Richardson failed to provide proof that she either owns or is authorized to use the land to mitigate the impacts to wetlands from the proposed project. Without such proof, Janet Richardson failed to prove that she could mitigate those same impacts from the proposed project.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order denying Respondent Richardson’s request for a wetlands resource permit for the proposed project.ONE AND ORDERED this 17th day of December, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1996. COPIES FURNISHED: Richard Stauffer Post Office Box 97 Aripeka, Florida 34679-097 Cy Plata Post Office Box 64 Aripeka, Florida 34679 Steven McCallum Post Office Box 484 Aripeka, Florida 34679 Leslie Neumann Post Office Box 738 Aripeka, Florida 34679 John Richardson 700 West Broad Street Brooksville, Florida 34607 Janet Richardson 1603 Osowaw Boulevard Springhill, Florida 34607 Thomas I. Mayton, Jr., Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Perry Odom, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virgina B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that a dredge and fill permit be issued to Fairfield to fill 2.1 acres of wetlands and to create 2.1 acres of wetlands as mitigation, including the planting of Spartina to be maintained at an 80% survival rate for a period of five years and the provision of erosion control measures in and adjacent to Lake Avoca and St. Joseph's Sound. Respectfully submitted and entered this 14th day of February, 1986 in Tallahassee, Leon County, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of Feburary, 1986. APPENDIX The proposed findings of fact submitted by the Petitioner and the Respondent Fairfield have been accepted and/or incorporated in this Recommended, except as noted below: Petitioner page 3, 3rd full paragraph, Rejected; not supported last sentence: by competent substantial evidence. page 4, 1st paragraph: Rejected; contrary to the greater weight of the evidence. page 5, 1st full sentence: Accepted, but irrelevant and immaterial to disposition of any issue. pages 5 and 6, starting with Rejected; contrary to the 1st full paragraph: greater weight of the evidence. Respondent Fairfield page 4, 2nd full paragraph: Rejected; mere recitation of testimony and conclusions of law as opposed to factual findings. page 13, 1st paragraph: Rejected: irrelevant and immaterial. NOTE: Many of the proposed findings of fact submitted by the Petitioner and the Respondent Fairfield constitute either recitations of testimony or legal conclusions. While these have not technically been rejected by the undersigned, they are not appropriate for the findings of fact section and are discussed in the conclusions of law. COPIES FURNISHED: Victoria Techinkel Secretary Twin Towers Office Bldg. 2600 Blairstone Road Tallahassee, FL 32301 Mary f. Smallwood General Counsel Twin Towers Office Bldg. 2600 Blairstone Road Tallahassee, FL 32301 William W. Deane, Esquire Hanley and Deane, P.A. 465 Second Avenue North P. O. Box 7473 St. Petersburg, FL 33734 Julia D. Cobb Deborah Detzoff Richard Tucker 2600 Blairstone Road Tallahassee, FL 32301 Terry E. Lewis Steve Lewis Messer, Vickers, Caparello, French & Madsen P. O. Box 1876 Tallahassee, FL 32302 =============================================================== AGENCY FINAL ORDER =============================================================== STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION LEAGUE OF WOMEN VOTERS OF CLEARWATER-UPPER PINELLAS COUNTY, Petitioner, v. DOAH CASE NO. 85-2755 DDT OGC FILE NO. 85-0822 DEPARTMENT OF ENVIRONMENTAL REGULATION and FAIRFIELD COMMUNITIES, INC., Respondents. /
Findings Of Fact Mariposa Road appears on the plat of Ramrod Shores Marina Section subdivision (the Subdivision), which was filed in the official records of Monroe County in 1960; and on revisions of the original plan, one of which was filed in 1963, and the more recent of which was filed in 1969. On February 9, 1960, Monroe County accepted the dedication of Mariposa Road, and the County has owned it since. Mariposa Road borders the Subdivision on the east, separating it from Torch Ramrod Channel which leads into Niles Channel which leads into the Gulf of Mexico to the north; to the south Torch Ramrod Channel leads into Newfound Harbor which opens onto the Atlantic Ocean. Mariposa Road runs from State Road 4 northerly through a tidal mangrove community along the water's edge to the northern edge of the Subdivision. Midway, Angelfish Road meets is perpendicularly. Cape Sable Corporation, the original developer of the Subdivision, trucked in oolitic limestone fill to construct Mariposa and Angelfish Roads, and to repair the roads after occasional washouts. In 1968 or 1969, Sayward Wing drove a Studebaker north on Mariposa Road from its intersection with State Road In 1969, James Lewis drove south on Mariposa Road. In his Lincoln, he was unable to drive up onto State Road 4 where Mariposa Road dead ends into it, but the found the road passable otherwise. By October of 1974, all fill placed on Mariposa Road south of Angelfish road had washed out. In October of 1974, or shortly before, a bulldozer cleared the road site south of Angelfish Road. In this stretch, the centerline of the marl roadbed was three to four tenths of a foot above the national geodetic vertical datum. In 1975, and again the following year, Monroe County placed fill on Mariposa Road. In June of 1976, there was fill on the site and a road ran north from Angelfish Road but there was no fill in Mariposa Road's roadbed south of Angelfish Road. In August of 1976, there was a standing water in the Mariposa roadbed between State Road 4 and Angelfish Road. By January of 1977, and possibly as early as November of 1976, rock fill had been spread in the roadbed from State Road 4 to north of Angelfish Road, however, and the roadway was complete. By October of 1977, 96 cubic yards of fill had been placed in the roadbed, but water stood on both sides of the roadway. About 278 cubic yards of fill had been placed on Angelfish Road. On the day of the hearing, fill had been placed in the Mariposa roadbed to a height two or three feet above adjacent ground, making the road two or three feet higher than it had been in January of 1977. The road was higher and wider than it had been in October of 1977. The area landward of Mariposa Road and north of Angelfish Road was dry, while much of the area immediately landward of Mariposa Road and south of Angelfish Road was wet. Sometimes water stands a foot deep west of Mariposa Road. Wetland vegetation predominated on lot 11 in block 4 and most of lots 12, 13 and 14 in block 2 of the Subdivision, all of which lie west of Mariposa Road. The tidal mangrove community intersected by Mariposa Road still supports wading birds and various marine for organisms, including killifish, needlefish and jelly fish. The mangroves' root systems stabilize the shoreline and filter out certain substances which would otherwise run off into the channel. Decaying plant matter produced by red and spider mangroves supports various microorganisms which constitute an early link in the food chain culminating in commercial fisheries. Mariposa Road separates plan matter on the west side of the road from the waters of Torch Ramrod Channel. In October of 1977, the rock which was used to build Mariposa Road was loosely packed. Water from Torch Ramrod Channel percolated through the road even when it was not high enough to move across the road in a sheet, which sometimes happened. There were also low lying places in the road through which tidal waters flowed to the landward side of Mariposa Road. With the addition of fill since then, water reaches wetlands west of the road only by percolation or capillary action, or in the form of rainfall. The wetlands are impounded and unable to drain into the channel. Significantly less frequent tidal inundation coupled with constant evapotranspiration will increase the salinity of the remaining water, which makes survival of the existing mangroves doubtful. These mangroves, which do not attain any great size because of the limiting effect of the caprock in the area, exhibited no signs of stress in October of 1977. On the day of the hearing, however, a biologist visited the site and concluded that the mangroves were suffering from stress and might die off altogether in as little two years, as a result of the interference with tidal action caused by the rock fill. Removal of the fill would ten to restore the mangroves west of Mariposa Road to health and would permit decaying plant matter and related microorganisms on the landward side of Mariposa Road to contribute to the ecosystem of Torch Ramrod Channel; several of the Subdivision lots would be opened to waters of the State. In October of 1977, respondent admitted repeatedly causing fill to be deposited in the Mariposa roadbed. Petitioner has never issued a permit authorizing respondent to place fill on Mariposa Road, not has respondent applied to petitioner for such a permit. Monroe County never authorized respondent place fill material or anything else on Mariposa Road. Petitioner's exhibit No. 7). Before March 8, 1979, petitioner reasonably expended six hundred four dollars and seventy-nine cents ($604.79) in investigating the source of the fill. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the amended notice of violation. That respondent pay petitioner six hundred four dollars and seventy- nine cents ($604.79). That respondent, within twenty days of entry of the final order, file an application for a permit or submit a proposed restoration plan and compliance schedule to petitioner for approval. DONE AND ORDERED this 9th day of August 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: H. Ray Allen, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 David Paul Horan, Esquire 513 Whitehead Street Key West, Florida 33040
The Issue The issue is whether the City's applications for an individual stormwater permit and a noticed general environmental resource permit for Phase 1A of the proposed Hogtown Creek Greenway should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In these two cases, Respondent, City of Gainesville (City), seeks the issuance of a stormwater system management permit (stormwater permit) to construct a 2,000-foot long asphaltic trail/boardwalk, a parking facility and associated improvements for Phase 1A of the Hogtown Creek Greenway project in the north central portion of the City. That matter is docketed as Case No. 97-2845. The City also seeks the issuance of a noticed general environmental resource permit (NGP) to construct 481 square feet of piling supported structures over wetlands or surface waters for the same project. That matter has been assigned Case No. 97-2846. Respondent, St. Johns River Water Management District (District), is the regulatory agency charged with the responsibility of reviewing and approving the requested permits. Petitioner, Greenspace Preservation Association, Inc., is a not-for-profit Florida corporation primarily composed of persons who own real property adjacent to the route proposed by the City, as well as local environmental interests. Petitioners, Frank Ward, Sal Locascio, Frederick P. Peterkin, and Harold M. Stahmer, are individuals who own real property adjacent to the route proposed by the City for the Greenway. The parties have stipulated that Petitioners are substantially affected by the District's proposed action and thus have standing to initiate these cases. On March 28, 1997, the City filed applications for a stormwater permit and a NPG for Phase IA of the Hogtown Creek Greenway project. After conducting a review of the applications, including an on-site visit to the area, in May 1997, the District proposed to issue the requested permits. On June 9, 1997, Petitioners timely filed a Petition for Initiation of Formal Proceedings as to both intended actions. As amended and then refined by stipulation, Petitioners generally allege that, as to the stormwater permit, the City has failed to provide reasonable assurance that the project meets the permitting requirements of the District; the City has failed to provide reasonable assurance that the stormwater system will not cause violations of state water quality standards; the City has failed to provide reasonable asurance that the project satisfies the District's minimum required design features; and the City has failed to provide reasonable assurance that the stormwater system is capable of being effectively operated and maintained by the City. As to the NPG, Petitioners generally allege that the piling supported structure is not less than 1,000 square feet; the jurisdictional wetlands are greater than the area shown on the plans submitted by the City; the City has failed to provide reasonable assurance that the system will not significantly impede navigation; the City has failed to provide reasonable assurance that the system does not violate state water quality standards; the City has failed to provide reasonable assurance that the system does not impede the conveyance of a watercourse in a manner that would affect off-site flooding; the City has failed to provide reasonable assurance that the system will not cause drainage of wetlands; and the City failed to provide reasonable assurance that the system does not adversely impact aquatic or wetland dependent listed species. Respondents deny each of the allegations and aver that all requirements for issuance of the permits have been met. In addition, the City has requested attorney's fees and costs under Section 120.595(1)(b), Florida Statutes (Supp. 1996), on the theory that these actions were filed for an improper purpose. A General Description of the Project The Hogtown Creek Greenway is a long-term project that will eventually run from Northwest 39th Street southward some seven miles to the Kanapaha Lake/Haile Sink in southwest Gainesville. These cases involve only Phase 1A of that project, which extends approximately one-half mile. This phase consists of the construction of a 2,000-foot long asphaltic concrete trail/boardwalk, a timber bridge and boardwalk, a parking facility, and associated improvements. The trail will extend from the Loblolly Environmental Facility located at Northwest 34th Street and Northwest 5th Avenue, to the intersection of Northwest 8th Avenue and Northwest 31st Drive. The trail will have a typical width of ten feet. For the majority of its length, the trail will be constructed of asphaltic concrete overlying a limerock base, and it will generally lie at the existing grade and slope away from the creek. Besides the trail, additional work involves the repaving of Northwest 5th Avenue with the addition of a curb and gutter, the construction of an entrance driveway, paved and grassed parking areas, and sidewalks at the Loblolly Environmental Facility, and the widening and addition of a new turn lane and pedestrian crosswalk at the intersection of Northwest 8th Avenue and Northwest 31st Drive. The Stormwater Permit Generally The entire Phase IA project area lies within the Hogtown Creek 10-year floodplain. It also lies within the Hogtown Creek Hydrologic Basin, which basin includes approximately 21 square miles. The project area for the proposed stormwater permit is 4.42 acres. Water quality criteria Phase IA of the Greenway will not result in discharges into surface groundwater that cause or contribute to violations of state water quality standards. When a project meets the applicable design criteria under the District's stormwater rule, there is a presumption that the project will not cause a violation of state water quality standards. There are two dry retention basins associated with the project. Basin 1 is located at the cul-de-sac of Northwest 5th Avenue and will capture and retain the stormwater runoff from the new and reconstructed impervious areas at the Loblolly Facility. Basin 2 is located at the parking area and will capture and retain stormwater runoff at the existing building and proposed grass parking area. Under the stormwater rule, the presumptive criteria for retention basins require that the run-off percolate out of the basin bottom within 72 hours. The calculations performed by the City's engineer show that the two retention basins will recover within that timeframe. In making these calculations, the engineer used the appropriate percolation rate of ten inches per hour. Even using the worst case scenario with a safety factor of twenty and a percolation rate of one-half inch per hour, the two retention basins will still recover within 72 hours. The presumptive criteria for retention basins require that the basin store a volume equal to one inch of run-off over the drainage area or 1.25 inches of run-off over the impervious area plus one-half inch of run-off over the drainage area. The calculations performed by the City's engineer show that the two retention basins meet the District's volume requirements for retention systems. An applicant is not required to utilize the presumptive design criteria, but instead may use an alternative design if the applicant can show, based on calculations, tests, or other information, that the alternative design will not cause a violation of state water quality standards. As a general rule, the District applies its stormwater rule so that water quality treatment is not required for projects or portions of projects that do not increase pollutant loadings. This includes linear bicycle/pedestrian trails. The City's proposed trail will not be a source of pollutants. The City will install signs at both entrances to the trail to keep out motorized vehicles. Except for emergency and maintenance vehicles, motorized vehicles will not be permitted on the trail. The infrequent use by emergency or maintenance vehicles will not be sufficient to create water quality concerns. The construction of a treatment system to treat the stormwater from the trail would provide little benefit and would only serve to unnecessarily impact natural areas. Although treatment of the stormwater run-off from the trail portion of the project is not required under District rules, the run-off will receive treatment in the vegetated upland buffer adjacent to the trail. The District's proposed other condition number 3 will require the City to plant vegetation in unvegetated and disturbed areas in the buffer. This will reduce the likelihood of erosion or sedimentation problems in the area of the trail. Although disputed at hearing, it is found that the City's engineer used the appropriate Manning coefficient in the calculations regarding the buffer. Even without a vegetated buffer, run-off coming from the bicycle trail will not violate state water quality standards. The City will install appropriate erosion and sediment controls. These include siltation barriers along the entire length of both sides of the proposed trail prior to commencing construction. Such barriers will not allow silt or other material to flow through, over, or under them. The City will also place hay bales and any other silt fencing necessary to solve any erosion problem that may occur during construction. In addition, the permit will require an inspection and any necessary repairs to the siltation barriers at the end of each day of construction. Saturation of the limerock bed under the paved portion of the trail is not expected to cause a problem because heavy vehicles will not regularly use the trail. The trail portion of the project can be adequately maintained to avoid deterioration. Sensitive Karst Areas Basin criteria The two proposed dry retention basins for Phase 1A are located within the District's Sensitive Karst Areas Basin. They include all of the minimum design features required by the District to assure adequate treatment of the stormwater before it enters the Floridan aquifer and to preclude the formation of solution pipe sinkholes in the stormwater system. There will be a minimum of three feet of unconsolidated soil material between the surface of the limestone bedrock and the bottom and sides of the two retention basins. The appropriate mechanism for determining the depth of limestone is to do soil borings. The soil borings performed by the City show that there is at least three feet of unconsolidated material between the bottom of the basins and any limerock where the borings were taken. In other words, limestone would not be expected to be within three feet of the bottom of either basin. Based on the soil boring results, the seasonal high water table is at least six feet below ground level. The depth of the two retention basins will be less than ten feet. Indeed, the depth of the basins will be as shallow as possible and will have a horizontal bottom with no deep spots. To make the retention basins any larger would require clearing more land. A large shallow basin with a horizontal bottom results in a lower hydraulic head and therefore is less potential for a sinkhole to form. Before entering the basins, stormwater will sheet flow across pavement and into a grass swale, thereby providing some dispersion of the volume. Finally, the two retention basin side slopes will be vegetated. Special condition number 7 provides that if limestone is encountered during excavation of a basin, the City must over- excavate the basin and backfill with three feet of unconsolidated material below the bottom of the basin. Drainage and flood protection Contrary to Petitioners' assertions, the project will not adversely affect drainage or flood protection on surrounding properties. The trail will be constructed generally at existing grade. Because the trail will be constructed at existing grade, the net volume of fill necessary for Phase 1A is approximately zero. Therefore, there will not be a measurable increase in the amount of runoff leaving the site after construction, and the trail will not result in an increase in off-site discharges. District rules require that the proposed post- development peak rate of discharge from a site not exceed the pre-development peak rate of discharge for the mean annual storm only for projects that exceed fifty percent impervious surface. The proposed project has less than fifty percent impervious surface. Even though it is not required, the City has demonstrated that the post-development rate of discharge will not exceed the pre-development peak rate of discharge. Both basins will retain the entire mean annual storm so that the post-development rate of discharge is zero. Even during a 100-year storm event, the retention basins willl not discharge. Therefore, there will not be any increase in floodplain elevations during the 10, 25, or 100-year storm events from the proposed project. Operation and maintenance entity requirements The applicable requirements of Chapter 40C-42, Florida Administrative Code, regarding operation and maintenance, have been met by the applicant. The City proposes itself as the permanent operation and maintenance entity for the project. This is permissible under District regulations. The duration for the operation and maintenance phase of the permit is perpetual. The City has adequate resources and staff to maintain the phase 1A portion of the project. The public works department will maintain the stormwater management system out of the City's utility fund. The City provides periodic inspections of all of its stormwater systems. These inspections are paid for out of the collected stormwater fees. The City will also conduct periodic inspections of the project area, and the two retention basins will be easily accessed by maintenance vehicles. The City will be required to submit an as-built certification, signed and sealed by a professional engineer, once the project is constructed. Monthly inspections of the system must be conducted looking for any sinkholes or solution cavities that may be forming in the basins. If any are observed, the City is required to notify the District and repair the cavity or sinkhole. Once the system is constructed, the City will be required to submit an inspection report biannually notifying the District that the system is operating and functioning in accordance with the permitted design. If the system is not functioning properly, the applicant must remediate the system. The City will be required to maintain the two retention basins by mowing the side slopes, repairing any erosion on the side slopes, and removing sediment that accumulates in the basins. Mowing will be done at least six times per year. The City will stabilize the slopes and bottom areas of the basins to prevent erosion. The City has a regular maintenance schedule for stormwater facilities. The project will be included within the City's regular maintenance program. The City has budgeted approximately $80,000.00 for maintenance of the trail and vegetated buffer. Also, it has added new positions in its budget that will be used to maintain and manage the Greenway system. Finally, City staff will conduct daily inspections of the Phase 1A trail looking for problems with the vegetated buffer, erosion problems along the trail, and sediment and debris in the retention basin. If the inspections reveal any problems, the staff will take immediate action to correct them. The Noticed General Environmental Resource Permit Generally By this application, the City seeks to construct 481 square feet of piling supported structures over wetlands or surface waters. The proposed structures include a 265 square foot timber bridge over an un-vegetated flow channel, which connects a borrow area to Possum Creek, and a 216 square foot boardwalk over two small wetland areas located south of the flow channel. None of the pilings for the bridge or boardwalk will be in wetlands, and no construction will take place in Hogtown or Possum Creeks. The paved portion of the trail will not go through wetlands, and there will be no dredging or filling in wetlands. The receiving waters for the project are Hogtown and Possum Creeks. Both are Class III waters. Hogtown Creek originates in north central Gainesville and flows southwest to Kanapaha Lake/Haile Sink in southwest Gainesville. Possum Creek originates in northwest Gainesville and flows southeast to its confluence with Hogtown Creek south of the proposed bridge structure. Wetlands The total area of the proposed bridge and boardwalk over surface water or wetlands is approximately 481 square feet. The wetland delineation shown on the City's Exhibit 5A includes all of the areas in the project area considered to be wetlands under the state wetland delineation methodology. The United State Army Corps of Engineers' wetland line includes more wetlands than the District wetland line. The former wetland line was used to determine the area of boardwalk and bridge over wetlands. Even using this line, however, the total area of boardwalk over surface waters or wetlands is approximately 481 square feet and is therefore less than 1,000 square feet. Navigation The proposed system does not significantly impede navigation. Further, the structures will span a wetland area and an un-vegetated flow channel, both of which are non-navigable. In fact, the flow channel generally exhibits little or no flow except after periods of rainfall. Water quality The construction material that will be used for the bridge and boardwalk will not generate any pollutants. Morever, chemical cleaners will not be used on those structures. Silt fences will be used and vegetation will be planted in the vicinity of the bridge and boardwalk to prevent erosion and sedimentation problems. The amount of erosion from drip that comes off the boardwalk will be minimal. Therefore, the bridge and boardwalk will not cause a violation of state water quality standards. Off-site flooding The project will not impede conveyance of any stream, river, or other water course which would increase off-site flooding. The structures will completely span the wetland areas and flow channel, and no part of the structures, including the pilings, will lie within any water or wetland areas including the flow channel. There will be a span of 2.5 to 3 feet from the horizontal members of the bridge and boardwalk down to the ground surface which will allow water to pass through unobstructed. Further, there will not be any cross ties or horizontal obstructions on the lower portions of the boardwalk or bridge pilings. Further, due to the spacing of the pilings, the boardwalk and bridge will not trap sufficient sediment such as leaves to impede the conveyance of the flow channel. Therefore, conveyance through the flow channel will not be affected by the structures. Because the boardwalk and bridge are not over Hogtown or Possum Creeks, they will not cause any obstruction to the conveyance of the creeks. Aquatic and wetland dependent listed species The project will not adversely affect any aquatic or wetland dependent listed species. These species are defined by District rule as aquatic or wetland dependent species listed in Chapter 39-27, Florida Administrative Code, or 50 Code of Federal Regulations, Part 17. No such species are known to exist in the project area, and none are expected to exist in the location and habitat type of the project area. Therefore, contrary to Petitioners' assertions, there are no listed salamander, frog, turtle, or lizard species known to occur within the Hogtown Creek basin. Although it is possible that the box turtle may be found in the project area, it is not an aquatic or wetland dependent listed species. One baby American alligator (between two and three feet in length) was observed in the borrow pit area of the project on September 11, 1997. Except for this sighting, no other listed animal species have been observed in the project area. As to the alligator, the only area in which it could nest would be in the existing excavated borrow pit, and none of the proposed construction will take place in that area. More than likely, the alligator had walked into the area from Clear Lake, Kanapaha Prairie, or Lake Alice. The proposed structures will not affect the movement of the alligator nor its feeding habits. Drainage of wetlands Because the boardwalk and bridge are elevated structures over waters and wetlands, and the City has not proposed to construct ditches or other drainage systems, the proposed system will not cause drainage of the wetlands. Coral/macro-marine algae/grassbeds The proposed system is not located in, on, or over coral communities, macro/marine algae, or a submerged grassbed community. D. Were the Petitions Filed for an Improper Purpose? Prior to the filing of their petitions, Petitioners did not consult with experts, and they prepared no scientific investigations. Their experts were not retained until just prior to hearing. Petitioners are citizens who have genuine concerns with the project. They are mainly longtime residents of the area who fear that the Greenway will not be properly maintained by the City; it will increase flooding in the area; it will cause water quality violations; and it will attract thousands of persons who will have unimpeded access to the back yards of nearby residents. Although these concerns were either not substantiated at hearing or are irrelevant to District permitting criteria, they were nonetheless filed in good faith and not for an improper purpose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order approving the applications of the City of Gainesville and issuing the requested permits. DONE AND ENTERED this 19th day of December, 1997, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1997. COPIES FURNISHED: Henry Dean, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Samuel A. Mutch, Esquire 2790 Northwest 43rd Street Suite 100, Meridien Centre Gainesville, Florida 32606 Jennifer B. Springfield, Esquire Mary Jane Angelo, Esquire Post Office Box 1429 Palatka, Florida 32178-1429 Richard R. Whiddon, Jr., Esquire Post Office Box 1110 Gainesville, Florida 32602-1110
The Issue The issue is whether Respondent, Daniel A. Reynolds, should take corrective action and pay investigative costs for allegedly controlling, eradicating, removing, or otherwise altering aquatic vegetation on eighty-seven feet of shoreline adjacent to his property on Lake June-in-Winter (Lake June) in Highlands County, Florida, without an aquatic plant management permit.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent is the riparian owner of the property located at 260 Lake June Road, Lake Placid, Highlands County (County), Florida. He has owned the property since 2001 and resides there with his wife and two young children. The parcel is identified as Parcel ID Number C-25-36-29-A00-0171-0000. The southern boundary of his property, which extends around eighty-seven feet, abuts Lake June. Respondent has constructed a partially covered dock extending into the waters of Lake June, on which jet skis, a canoe, and other recreational equipment are stored. The Department is the administrative agency charged with protecting the State's water resources and administering and enforcing the provisions of Part I, Chapter 369, Florida Statutes, and the rules promulgated under Title 62 of the Florida Administrative Code. The parties have stipulated that Lake June is not wholly-owned by one person; that it was not artificially created to be used exclusively for agricultural purposes; that it is not an electrical power plant cooling pond, reservoir, or canal; and that it has a surface area greater than ten acres. As such, the parties agree that Lake June constitutes "waters" or "waters of the state" within the meaning of Florida Administrative Code Rule 62C-20.0015(23), and is not exempt from the Department's aquatic plant management permitting program under Florida Administrative Code Rule 62C-20.0035. Unless expressly exempted, a riparian owner who wishes to control, eradicate, remove, or otherwise alter any aquatic plants in waters of the state must obtain an aquatic plant management permit from the Department. See § 369.20(7), Fla. Stat.; Fla. Admin. Code R. 62C-20.002(1). An aquatic plant is defined as "any plant, including a floating plant, emersed, submersed, or ditchbank species, growing in, or closely associated with, an aquatic environment, and includes any part or seed of such plant." See Fla. Admin. Code R. 62C-20.0015(1). These plants are found not only in the water, but also along the shoreline when the water recedes below the high water mark. They provide important habitat for fish, insects, birds, frogs, and other animals. Torpedo Grass and Maidencane are two common species of aquatic plants or weeds. Applications for a permit are filed with one of the Department's regional offices. After a site inspection is made, a permit is issued as a matter of right without charge or the need for a hearing, and it is effective for a period of three years. A Department witness indicated that there are approximately 1,300 active permits at the present time, including an undisclosed number of permits for property owners on Lake June.3 It is undisputed that Respondent has never obtained a permit. A statutory exemption provides that "a riparian owner may physically or mechanically remove herbaceous aquatic plants . . . within an area delimited by up to 50 percent of the property owner's frontage or 50 feet, whichever is less, and by a sufficient length waterward from, and perpendicular to, the riparian owner's shoreline to create a corridor to allow access for a boat or swimmer to reach open water." § 369.20(8), Fla. Stat. The exemption was established so that riparian owners could create a vegetation-free access corridor to the waterbody adjacent to their upland property. The statute makes clear that "physical or mechanical removal does not include the use of any chemicals . . . ." Id. If chemicals are used, the exemption does not apply. Under the foregoing exemption, Respondent could remove up to 43.5 feet of aquatic vegetation in front of his property on Lake June, or one-half of his eighty-seven foot shoreline. By way of background, since purchasing his property in 2001, Respondent has had a long and acrimonious relationship with his two next door neighbors, Mr. Slevins (to the west) and Mr. Krips (to the east).4 Neither neighbor uses Lake June for recreational purposes. After purchasing the property, Respondent says that Mr. Slevin began to verbally harass and threaten his family, particularly his wife. When Respondent observed the two neighbors repeatedly trespassing on his property, including the placing of an irrigation system and a garden over the boundary lines, Respondent built a fence around his lot, which engendered a circuit court action by the neighbors over the correct boundary line of the adjoining properties. Respondent says the action was resolved in his favor. According to Respondent, Mr. Slevins and Mr. Krips have filed "probably 100 to 200 different complaints on everything from barking dogs, to weeding the yard to calling DEP." Respondent also indicated that Mr. Slevins is a personal friend of the Highlands County Lakes Manager, Mr. Ford. As his title implies, Mr. Ford has the responsibility of inspecting the lakes in the County. If he believes that aquatic vegetation has been unlawfully removed or altered, he notifies the Department's South Central Field Office (Field Office) in Bartow since the County has no enforcement authority. Mr. Reynolds says that a personal and social relationship exists between Mr. Slevins and Mr. Ford, and through that relationship, Mr. Slevins encouraged Mr. Ford to file at least two complaints with the Field Office alleging that Respondent removed aquatic vegetation in Lake June without a permit. In 2002, the Department received a complaint about "aquatic plant management activity" on Respondent's property. There is no indication in the record of who filed the complaint, although Respondent suspects it was generated by Mr. Slevins. In any event, after an inspection of the property was made by the then Regional Biologist, and improper removal of vegetation noted, Respondent was sent a "standard warning letter" that asked him "to let it regrow" naturally. According to the Department's Chief of the Bureau of Invasive Plant Management, Mr. William Caton, Respondent "did not" follow this advice. In 2004, another complaint was filed, this time by the Highlands County Lakes Manager. After an inspection was made, another letter was sent to Respondent asking him to "let it regrow," to implement a revegetation plan, and to contact the Department's Regional Biologist. After receiving the letter, Respondent's wife telephoned Mr. Caton, whose office is in Tallahassee, and advised him that the complaint was the result of "a neighbor feud." Among other things, Mr. Caton advised her that the Department would not "get in the middle" of a neighbor squabble. At hearing, he disputed Mrs. Reynolds' claim that he told her to disregard the warning letter. He added that Respondent did not "follow through with" the corrective actions. As a result of another complaint being filed by the Highlands County Lakes Manager in 2006, a field inspection was conducted on July 12, 2006, by a Department Regional Biologist, Erica C. Van Horn. When she arrived, she noticed that the property was fenced and locked with a "Beware of Dog" sign. Ms. Van Horn then went to the home of Mr. Slevins, who lives next door, and was granted permission to access his property to get to the shoreline. The first thing Ms. Van Horn noticed was that the "lake abutting 260 Lake June Road was completely devoid of vegetation." She further noted that "on either side of that property [there was] lush green Torpedo Grass." Ms. Van Horn found it "very unusual" for the vegetation to stop right at the riparian line. Although she observed that there was "a small percentage of Maidencane" on the site, approximately ninety to ninety-five percent of the frontage "was free of aquatic vegetation." Finally, she noted that the dead Torpedo Grass on the east and west sides of the property was in an "[arc] shape pattern," which is very typical when someone uses a herbicide sprayer. During the course of her inspection, Ms. Van Horn took four photographs to memorialize her observations. The pictures were taken from the east and west sides of Respondent's property while standing on the Slevins and Krips' properties and have been received in evidence as Department's Exhibits 1-4. They reflect a sandy white beach with virtually no vegetation on Respondent's shoreline or in the lake, brown or dead vegetation around the property lines on each side, and thick green vegetation beginning on both the Slevins and Krips' properties. The dead grass to the east had been chopped into small pieces. During her inspection, Ms. Van Horn did not take any samples or perform field testing to determine if herbicides had been actually used since such testing is not a part of the Department's inspection protocol. This is because herbicides have a "very short half life," and they would have broken down by the time the vegetation turns brown leaving no trace of the chemicals in the water. Ms. Van Horn left her business card at the gate when she departed and assumed that Respondent would contact her. On a later undisclosed date, Respondent telephoned Ms. Van Horn, who advised him that he was out of compliance with regulations and explained a number of ways in which he could "come into compliance with these rules," such as revegetation. She says he was not interested. After her inspection was completed, Ms. Van Horn filed a report and sent the photographs to Mr. Caton for his review. Mr. Caton has twenty-seven years of experience in this area and has reviewed thousands of sites during his tenure with the Department. Based on the coloration of the vegetation right next to the green healthy vegetation on the adjoining properties, Mr. Caton concluded that the vegetation on Respondent's property had "classic herbicide impact symptoms." He further concluded that the vegetation had been chemically sprayed up to the boundary lines on each side of Respondent's property before it was cut with a device such as a weedeater. Based on the history of the property involving two earlier complaints, Respondent's failure to take corrective action, and the results of the most recent inspection, Mr. Caton recommended that an enforcement action be initiated. On August 11, 2006, Ms. Van Horn sent Respondent a letter advising him that a violation of Department rules may have occurred based upon the findings of her inspection. The letter described the unlawful activities as being "removal of aquatic vegetation from the span of the total adjacent shore line and significant over spray on to aquatic vegetation of neighboring properties on either side of [his] property." Respondent was advised to contact Ms. Van Horn "to discuss this matter." On May 15, 2007, the Department filed its Notice alleging that Respondent had "chemically controlled" the aquatic vegetation on eighty-seven feet of his shoreline in violation of Section 369.20(7), Florida Statutes, and Florida Administrative Code Rule 62C-20.002(1). The Notice sought the imposition of an administrative penalty in the amount of $3,000.00, recovery of reasonable investigative costs and expenses, and prescribed certain corrective action. On April 28, 2008, the Department filed an Amended Notice alleging that, rather than chemically removing the vegetation, Respondent had controlled, eradicated, removed, or otherwise altered the aquatic vegetation on his shoreline. The Amended Notice deleted the provision requesting the imposition of an administrative penalty, expressly sought the recovery of investigative costs and expenses of not less than $179.00, and modified the corrective action. After her initial inspection, Ms. Van Horn rode by the property in a Department boat on several occasions while conducting other inspections on Lake June and observed that the property "was still mostly devoid of vegetation." At the direction of a supervisor, on June 15, 2007, she returned to Respondent's property for the purpose of assessing whether any changes had occurred since her inspection eleven months earlier. This inspection was performed lakeside from a Department boat without actually going on the property, although she spoke with Respondent's wife who was standing on the dock. Ms. Van Horn observed that the area was still "devoid of vegetation but there was some Torpedo Grass growing back on the [eastern] side." She estimated that "much more" than fifty percent of the shoreline was free of vegetation. Photographs depicting the area on that date have been received in evidence as Department's Exhibits 5-7. Both Respondent and his wife have denied that they use any chemicals on their property, especially since their children regularly swim in the lake in front of their home. Respondent attributes the loss of vegetation mainly to constant use of the back yard, dock area, and shoreline for water-related activities, such as swimming, using jet skis, fishing, and launching and paddling a canoe. In addition, the Reynolds frequently host parties for their children and their friends, who are constantly tramping down the vegetation on the shoreline and in the water. He further pointed out that beginning with the house just beyond Mr. Krip's home, the next five houses have "no vegetation" because there are some areas on the lake that "naturally do not have any vegetation across them." Finally, he noted that Lake Juno suffered the impacts of three hurricanes in 2004, which caused a devastating effect on its vegetation. Respondent presented the testimony of Brian Proctor, a former Department aquatic preserve manager, who now performs environmental restoration as a consultant. Mr. Proctor visited the site in June 2007 and observed "full and thick" Torpedo Grass "growing in the east and west of the property lines." Based on that inspection, Mr. Proctor said he was "comfortable stating that at the time [he] did the site visit in June of '07 there was nothing that appeared to be chemical treatment on Mr. Reynold's property." He agreed, however, that the "shoreline vegetation was poor," and he acknowledged that it was unusual that Lake Juno was lush with aquatic vegetation in front of the neighboring properties to the east and west but stopped at Respondent's riparian lines. When shown the June 2006 photographs taken by Ms. Van Horn, he acknowledged that it "appeared" the property had been chemically treated. He was able to make this determination even though a soil test had not been performed. Photographs introduced into evidence as Respondent's Exhibits 1-4 reflect that on June 27, 2007, there was thick green vegetation on both sides of his property, although one photograph (Respondent's Exhibit 1) shows only limited vegetation along the shoreline and in the lake in the middle part of the property. The photographs are corroborated by a DVD recorded by Respondent on the day that Ms. Van Horn returned for a follow-up inspection. While these photographs and DVD may impact the amount of corrective action now required to restore the property to its original state, they do not contradict the findings made by Ms. Van Horn during her inspection on July 12, 2006. Finally, photographs taken in 2003 to depict what appears to be chemical spraying of vegetation and the construction of a bulkhead without a permit by Mr. Slevins have no probative value in proving or disproving the allegations at issue here. The greater weight of evidence supports a finding that it is very unlikely that heavy usage of the shoreline and adjacent waters in the lake by Respondent's family and their guests alone would cause ninety-five percent of the shoreline and lake waters to be devoid of vegetation when the inspection was made in July 2006. Assuming arguendo that this is true, Respondent was still required to get a permit since the amount of vegetation altered or removed through these activities exceeded more than fifty percent of the vegetation on the shoreline. More than likely, the vegetation was removed by a combination of factors, including recreational usage, mechanical or physical means, and the application of chemical herbicides on each riparian boundary line, as alleged in the Amended Notice. The fact that the Department did not perform any testing of the water or soil for chemicals does not invalidate its findings. Finally, the acrimonious relationship that exists between Respondent and his neighbors has no bearing on the legitimacy of the charges. Therefore, the allegations in the Amended Notice have been sustained. The parties have stipulated that if the charges are sustained, Respondent is entitled to recover reasonable costs and expenses associated with this investigation in the amount of $179.00. As corrective action, the Amended Notice requires that Respondent obtain a permit to remove Torpedo Grass from his property and to replant "126 well-rooted, nursery grown Pontederia cordata ("pickerelweed") at the locations depicted on the map" attached to the Amended Notice. Because the evidence suggests that some of the area in which vegetation was removed in 2006 had regrown by July 2007, the proposed corrective action may be subject to modification, depending on the current state of the property.
Findings Of Fact Petitioner, John C. Gross, owns a tract of land south of the Garbordy Canal and west of the ICW near New Smyrna Beach which he proposes to develop as residential waterfront property. This property is outlined in red on Exhibit 1. Garbordy Canal is an east-west canal installed many years ago to drain the upland area into the Indian River (and ICW). It is 700 feet long and 50 feet wide, and has a depth varying between 1 - 3 feet. It was last dredged some 20 years ago when dredge material was removed to deepen the canal east of the fixed bridge to a depth of approximately 6 feet. The area of the canal west of the fixed bridge has always been shallow and the bridge itself precludes the entry of all but small craft. Public witnesses testifying on behalf of the Petitioner were interested primarily in the removal of the shoal in and/or deepening of the Garbordy Canal. It was generally contended that the erosion that has occurred near the eastern end of Petitioner's property was caused by the shoal that has developed eastward of this erosion, and no evidence to rebut this somewhat suspect hypothesis was presented. These witnesses generally contended that the drainage of the area served by the Garbordy Canal would be improved if the canal was deepened; however, since this application does not propose to deepen the Garbordy Canal, the accuracy of this contention is immaterial and irrelevant. The primary interest of the Petitioner is in the construction of the z- shaped canal across his property. To accomplish this it will be necessary to remove the mangroves at the southeastern end of the proposed canal. No evidence was presented by Petitioner to show what effect the construction of the canal would have on the water quality of the area or what effect the canal would have on the ecology of the area. All that was presented was the vague and general opinions of non-expert witnesses that they didn't think the canal would cause any damage to the ecology and the further opinion that it would increase the drainage capacity of the area by providing an alternate water path to the Garbordy Canal. The project site is in the northern end of the Mosquito Lagoon Aquatic Preserve. One biologist testified in opposition to the petition. Based upon his inspection of the site and study of the proposed project he concluded that the project would destroy 10,000 square feet of productive littoral zone; increased depths in the Garbordy Canal would contribute to degradation of water qualities; and the elimination of the littoral zone would eliminate biological filter, marine nursery grounds, and feeding grounds for marine animals and water birds. He further concluded that turbidity resulting from construction activities would cause siltation of adjacent areas of shoreline vegetation.
