The Issue The ultimate issue for determination is whether the Petitioner has met the requirements of Sections 403.918 and 403.919, Florida Statutes, for the issuance of a dredge and fill permit within the waters of the State of Florida.
Findings Of Fact The Department takes exception to the Hearing Officer's statement in Finding of Fact No. 5 that the fill "over time will become inhabited by the types of life which live at the edge of the water and land." The Department argues that the record contains no competent, substantial evidence to support such a finding of fact. The law prohibits me, as agency head, from rejecting any finding of fact in a recommended order that is supported in the record by competent, substantial evidence, but I can and should reject findings of fact which are not supported in the record by competent, substantial evidence. Section 120.57(1)(b)10., Florida Statutes. In this case I must agree with the exception. A review of the entire record reveals no competent, substantial evidence to support the finding of fact. The only record evidence remotely bearing on the matter is that portion of the testimony of Dr. Peebles where he stated that "there probably are some small animals and little salamanders and whatever that live in that area, but I don't believe that they would all die. I think they migrate out into the other natural area that I'm leaving." (Tr. at 21) 2/ This testimony does not support the finding of fact, and the record contains no other evidence even remotely bearing on the matter. Therefore, I reject this finding of fact and accept the exception of the Department. The Department next takes exception to Finding of Fact No. 11 in which the Hearing Officer states that "However, this effect [on the life cycle of fish] will be minimal and would not itself cause significant damage to fishing or the lake." Once again, the Department contends that there is no competent, substantial evidence in the record to support the finding. Dr. Peebles testified: I can't honestly believe that me filling 14.3 percent, of my frontage is going to effect the health, safety, welfare and property of other people. The same goes for . . . whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Now, this is a case where to argue that on a factual basis would require expert witnesses that would say yes and others that would say no. I think we would find conflicts on all of these subjects. (Tr. at 19) Dr. Peebles also testified that "14.3 percent of the shoreline for the use of the owner is not a serious thing. So I don't think any far reaching serious impacts will occur by granting [the permit]." (Tr. at 75) The only other statement in the record which arguably supports the finding of fact is a statement made by Dr. Peebles while questioning the Department's witness. There Dr. Peebles stated that "I know for a fact -- I'm a fisherman. I fish in the lake. It's a good fishing lake, and with all the construction that's already taken place you've still got good water quality." (Tr. at 70-71) Whether the proposed project and the cumulative impact of reasonably expected future similar projects will have a minimal or significant impact on fishing and the lake is an area requiring specialized knowledge, skill, experience or training. Although the lay opinion of Dr. Peebles may be helpful in supporting expert testimony, lay opinion standing alone may not under law establish what the impacts would be. Dr. Peebles acknowledges that he is not an expert in ecology or the environment, and admits that expert testimony is needed to determine whether granting the permit will adversely affect the conservation of fish and wildlife. (Tr. at 19) Therefore, Dr. Peebles' opinion that there will be no adverse effect on conservation of fish and wildlife (Tr. at 19) and that the filling of "14.3 percent" of the shoreline for the use of the owners will not have "any far reaching serious impacts" (Tr. at 75) is not supported by expert testimony and is not sufficient evidence to support the finding of fact. Section 90.701(2), Florida Statutes; Ehrhardt, Florida Evidence 387 (2d ed. 1984); Husky Industries v. Black, 434 So. 2d 988, 992 (Fla. 4th DCA 1983) ("Expert testimony is not admissible at all unless the witness has expertise in the area in which his opinion is sought.") Furthermore, the statement that Dr. Peebles made while questioning the Department's witness is not evidence. To the extent that it might be liberally construed as evidence in view of the fact that he was not represented by counsel, the existing fishing quality of the lake is not relevant to the impact of future filling of wetlands around the lake. On the other hand, Mr. Jeremy Tyler, accepted as an expert in the areas of the environment and water quality, (Tr. at 52) testified that the cumulative impact of granting Dr. Peebles' permit and similar permits reasonably expected would result in an adverse impact on conservation of fish and wildlife, (Tr. 35-41, 49-51, 54-55) and ultimately would result in a violation of water quality standards. (Tr. at 60, 64 and 69) Therefore, not only is there no competent, substantial evidence in the record to support the finding of fact, but there is uncontroverted expert testimony to the contrary Therefore, I accept this exception. The Department also takes exception to any implication in Finding of Fact No. 11 that the Department's only concern is with cumulative impacts. I do not read the Recommended Order as making any such implied finding. The record shows that the Department concluded that reasonable assurance had been provided that the instant project, standing alone, would not result in water quality violations, (Tyler, Tr. at 51, 60, 64) but that water quality violations will occur and the project is contrary to the public interest when the cumulative impact of reasonably expected future permit applications are taken into consideration. (Tyler, Tr. at 35-41, 49-51, 54-55, 60, 64 and 69) This does not suggest that the Department's only concern in such permitting decisions is cumulative impacts. It only means that under the facts of this application, the only remaining concern is the cumulative impact of reasonably expected future permit applications. The exception is rejected. The Department takes exception to Finding of Fact No. 12 to the extent that the statement "Mitigation of the impacts to fishing is not practical" implies that the only negative impact of the proposed project is to fishing. As noted in my discussion of Point 3 above, the record contains competent, substantial evidence that when the cumulative impacts of reasonably expected future projects are considered, water quality violations will result and the proposed project will be contrary to the public interest. I have reviewed the entire record and find no competent, substantial evidence to support a finding that the impact of the proposed project and cumulative impact of reasonably expected future projects would be limited to fishing quality. To the extent that the Recommended Order implies such a limited impact I reject the implication and accept the exception. The Department's final exception to findings of fact argues that Finding of Fact No. 14 improperly implies that the proposed project would not impair water quality. Finding of Fact No. 14 states, "The amount of fill proposed in this application would not place the lake at risk or impair fishing; however, if additional such permits are approved it may at some point impair the waters and fishing." Although some semantic difficulties arise out of the Hearing Officer's use of the terms "place the waters at risk" and "impair the waters," the finding of fact is consistent with - testimony of Mr. Tyler that reasonable assurance had been provided that this proposed project, standing alone, would not violate water quality standards. (Tr. at 51) The finding is also consistent with the testimony that when the cumulative impact of this project and similar reasonably expected projects are considered, reasonable assurance had not been provided that water quality standards will not be violated and that the project is not contrary to the public interest. (Tr. at 60, 64 and 69) However, the impact of the project on the water quality of the lake is a matter that requires expert testimony. As in the case with the impact on conservation of fish and wildlife discussed above, Dr. Peebles introduced no expert testimony regarding the impact of the project on water quality. On the other hand, the Department's expert witness testified that although reasonable assurance had been provided that the project, standing alone, would not violate water quality standards, (Tyler, Tr. at 51) he also testified that the project by itself would have some adverse impact on water quality. (Tyler, Tr. at 51) Therefore, any implication that the project by itself would not impair the water quality of the lake lacks support in competent, substantial evidence and is contrary to unrebuted expert testimony. To the extent the Hearing Officer's finding implies that the project will not impair water quality, such a finding can not affect the outcome of this case because impairment of water quality is not a proper legal criterion for deciding whether to grant or deny the permit. The proper criterion is whether reasonable assurance has been provided that the project will not violate water quality standards. Cf. Houle v. Department of Environmental Regulation, 10 FALR 3671 (DER Final Order, June 13, 1988), per curiam aff'd, 538 So.2d 1257 (Fla. 1st DCA 1989); Brown v. Dept. of Environmental Regulation, 9 FALR 1871, 1875 (DER Final Order, March 27, 1987), per curiam aff'd, 531 So.2d 173 (Fla. 4th DCA 1988). Since the implied statement of the Hearing Officer does not affect the outcome of this case, any error is harmless and I reject the exception. RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW Burden of Proof The Department contends that the Hearing Officer erred in not placing the burden of proof on Mr. Peebles to show that the project is not contrary to the public interest when the cumulative impact of reasonably expected similar future projects are taken into consideration. An applicant for a permit has the burden of proof or persuasion to show entitlement to the permit. Florida Department of Transportation v. J.W.C. Co., 396 So.2d 778 (Fla. 1st DCA 1981). In order to show entitlement to a dredge and fill permit, an applicant must show that he has provided reasonable assurance that water quality standards will not be violated and that the project is not contrary to the public interest, and both of those tests must take into consideration the cumulative impacts of similar projects which are existing, under construction, or reasonably expected in the future. Sections 403.918(1), (2) and 403.919, Florida Statutes; Caloosa Property Owners' Ass'n v. Dept. of Environmental Regulation, 462 So.2d 523 - (Fla. 1st DCA 1985). 3/ The applicant's burden of proof includes the burden of giving reasonable assurance that cumulative impacts do not cause a project to be contrary to the public interest or to violate water quality standards. Concerned Citizens League of America, Inc., v. IMC Fertilizer, Inc., et al., 11 FALR 4237, 4244 (DER Final Order, March 29, 1989); Brown v. Dept. of Environmental Regulation, 9 FALR at 1877. At the hearing, the Department introduced expert testimony that reasonable assurance had not been provided that the project would not cause violations of water quality standards and was not contrary to the public interest when the cumulative impact of reasonably expected future projects were considered. (Tyler, Tr. at 35-41, 49-51, 54-58, 60, 64 and 69) Dr. Peebles, who bore the burden of persuasion, introduced no competent, substantial evidence to show that when cumulative impacts had been considered the necessary reasonable assurances had been provided. 4/ Dr. Peebles argues that his project will only fill in 14.3 percent of his shoreline, and only increase the percentage of the lake's wetlands that have been filled to 31.6 percent from the already existing 30 percent. However, it is not the incremental increase that causes the project to be not permittable, it is the cumulative impact of reasonably expected future projects, and Dr. Peebles failed to carry his burden of persuasion as to the cumulative impacts. Since Dr. Peebles did not carry his burden of persuasion he was not entitled to the permit as a matter of law, and the Hearing Officer erred in concluding that the permit should issue. Therefore, the Department's exception is accepted. Cumulative Impacts The Department takes exception to the Hearing Officer's conclusion of law that: Application of the cumulative effect principle denies the applicant a permit because of the destruction of wetlands by other landowners. The lack of emphasis on enforcement creates a disincentive to comply with the state's regulation of the waters. If those landowners who illegally filled the waters of the state were required to restore the wetlands they destroyed, then new applicants also could fill small portions of wetlands to enhance their use of their property without worrying about cumulative effects. (Recommended Order at 6) At this point it may be helpful to explain the role of cumulative impact analysis. The Department is required to take into consideration the cumulative impacts of similar projects which are existing, under construction, or reasonably expected in the future. Section 403.919, Florida Statutes; Brown v. Department of Environmental Regulation, 9 FALR 1871, 1876 (DER Final Order, March 27, 1987) (cumulative impact analysis is mandatory). Cumulative impact is not a third test, but rather a factor to be considered in determining whether reasonable assurance has been provided that the project will not result in violations of water quality standards and will not be contrary to the public interest. Concerned Citizens League of America, Inc. v. IMC Fertilizer Inc., 11 FALR 4237 (DER Final Order, March 29, 1989). As my predecessor Secretary Tschinkel observed: Without the ability to consider long-term impacts of a project (in combination with similar projects in the area considered "reasonably likely"), DER would be helpless to prevent gradual worsening of water quality and piece-meal elimination of biological resources inflicted by a proliferation of small projects. Morales v. Department of Environmental Regulation, 7 FALR 4786 (DER Final Order, September 18, 1985). The cumulative impact doctrine was originally developed as policy by the Department. It was subsequently codified by the Legislature in 1984 as Section 403.919, Florida Statutes. Chipola Basin Protective Group, Inc. v. Dept. of Environmental Regulation, 11 FALR 467, 476 (DER Final Order, December 29, 1988). - The doctrine was approved by the courts in Caloosa Property Owners Association v. Department of Environmental Regulation, 462 So.2d 523 (Fla. 1st DCA 1985). The cumulative impact statute, Section 403.919, is entitled "Equitable distribution." As the title suggests, the purpose of cumulative impact analysis is to distribute equitably that amount of dredging and filling activity which may be done without resulting in violations of water quality standards and without being contrary to the public interest. In order to determine whether the allocation to a particular applicant is equitable, the determination of the cumulative impacts is based in part on the assumption that reasonably expected similar future applications will also be granted. It does not necessarily follow, however, that all similar future applications must be granted if the current application is granted. Although the Department must be consistent in its permitting decisions to the extent possible and consistent with the public interest, (Rule 17-103.160, Fla. Admin. Code) each future application must stand on its own merit and must provide anew the necessary reasonable assurances subject to cumulative impact analysis. Manasota- 88, Inc, v. Agrico Chemical Co., et al., 90 ER FALR 043 (DER Final Order 1 February 19, 1990). In this case Dr. Peebles argued and the Hearing Officer concluded that the application of cumulative impact analysis is inequitable because previous unpermitted and allegedly illegal filling of wetlands around the lake now results in permits being denied which would have been granted but for the previous filling. There was testimony that about 30 percent of the original wetlands around the lake had been filled in the past, (Tyler, Tr. at 67) that all of the past filling was unpermitted, and that some of it may have been illegal. (Tyler, Tr. at 46, 61-62, 66-67, 72) However, the record contains no competent, substantial evidence showing how much, if any, previous filling was illegal. Furthermore, Section 403.919(2) requires the Department to consider the impacts of "projects which are existing", and does not draw a distinction between legal or illegal projects. As to the Hearing Officer's recommendation that cumulative impacts not be considered in this application, I note that Section 403.919, Florida Statutes mandates that such an analysis be conducted for every dredge and fill permit. Section 403.919 states that "The department in deciding whether to grant or deny a [dredge and fill] permit for an activity which will affect waters, shall consider [cumulative impacts]." See also Brown, supra, 9 FALR at 1876 (cumulative impact analysis is mandatory). Therefore, to the extent that the Hearing Officer is recommending cumulative impact analysis not be applied to Dr. Peebles' application, the recommendation is contrary to the law and must be rejected. The issue then remains of how past fill, whether legal or illegal, should be considered in the cumulative impact analysis. The Hearing Officer's recommendation in effect would require the Department to conduct a cumulative impact analysis under the assumption that previously filled wetlands should be treated as functioning wetlands. If I were to accept this view it would require the Department to take enforcement action in every case or abandon the protection of water quality of certain waters of the state. Such an interpretation would strip from the Department's hands the ability to exercise its discretion in allocating its limited enforcement resources, and result in the Department's enforcement priorities being set by permit applicants rather than by the Department. I note that the record contains competent, substantial evidence that the Department lacks sufficient resources to enforce every violation, (Tyler, Tr. at 45) although such a fact scarcely needs proof. Acceptance of the Hearing Qfficer's recommendation would place the Department in the dilemma of having to choose to withdraw enforcement resources from more environmentally significant projects or to abandon altogether the protection of less significant projects. Acceptance of the Hearing Officer's conclusion of law would also result in requiring the Department in all cases to determine whether violations had occurred and to take enforcement action for prior violations before it could consider cumulative impacts. Aside from the lack of sufficient enforcement resources, such enforcement' proceedings seldom, if ever, could be commenced and completed within the 90 days within which the Department must act on an application. Section 403.0876, Florida Statutes. The result would in effect limit the scope of Section 403.919 to pristine water bodies, and render the statute largely meaningless. I cannot accept that the Legislature intended such interpretations of Section 403.919, Florida Statutes. Although the result of the application of cumulative impact analysis to the facts of this case may seem harsh, the record indicates that Dr. Peebles may still obtain access the waters of the lake by means of a private dock that would not even require a permit if it had 1000 square feet or less of surface area and met the other provisions of Rule 17-312.050(1)(d), Fla. Admin. Code. Dr. Peebles' existing planned dock is 452 square feet. Therefore, Dr. Peebles could extend that portion of the dock that bridges the wetlands to the uplands by an additional 548 square feet of surface area. For example, the four foot wide bridge to the dock could be extended an additional 137 feet, which is more than enough to reach the upland portion of the lot. (Joint Exhibit No. 1) For the reasons state above, I reject the Hearing Officer's conclusion of law and accept the exception. Public Interest Test The Department also takes exception to the Hearing Officer's conclusion that the project is not contrary to the public interest. In conducting the public interest test the Department must balance the criteria as specified by the Legislature. Section 403.918(2)(a) states: In determining whether a project is not contrary to the public interest, or is clearly in the public interest, the department shall consider and balance the following criteria: Whether the project will adversely affect the public health, safety, or welfare or the property of others; Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project; Whether the project will be of a temporary or permanent nature; Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of 5.267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. The Department introduced evidence that criteria 1, 3 and 6 were neutral, (Tyler, Tr. at 54-56) that criteria 2, 4, 5 and 7 were negative, (Tyler, Tr. at 35-36, 54, 56, 57) and that when all the criteria were balanced there was a negative value to the project. (Tyler, Tr. at 57-58) Dr. Peebles argued at the hearing and in his response to exceptions that the Department's methodology in weighing each criteria in the public interest balancing test is incorrect. I disagree, and note that Dr. Peebles bore the burden of proof on the public interest test, and was free to introduce competent, substantial evidence on each criteria. As discussed in Part II above, Dr. Peebles did not introduce any competent, substantial evidence as to any of the above. The Hearing Officer's conclusion of law lacks competent, substantial evidence to support it, and is contrary to unrebuted competent, substantial evidence. Therefore, I reject this conclusion of law.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the application of Petitioner to place fill in the waters of the state be approved in accordance with the drawings submitted with the application. DONE and ENTERED this 28th day of February, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida1 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-3725 The Agency filed proposed findings of fact which were read and considered. The Agency's findings were adopted or rejected for the reasons indicated as follows: Paragraphs 1-10 Adopted Paragraph 11 Adopted that it will damage fishing; however, this damage will be insignificant and will not truly affect tee fishing on the lake. Paragraph 12 Adopted The Applicant's letter was read and considered as oral argument on the issues presented at hearings. COPIES FURNISHED: Mr. Dale H. Twachtmann Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Dr. Peyton Z. Pebbles, Jr. 6527 Northwest 42nd Place Gainesville, FL 32606 William H. Congdon, Esq. Office of General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 =================================================================
Findings Of Fact Petitioner is the owner and developer of a parcel of land located on the eastern side of the northern end of Key Largo, Monroe County, Florida. Located in the middle of that parcel is a dead-end east-west canal approximately two feet deep at its eastern end where it opens to the Atlantic Ocean and approximately twenty feet deep at its western dead-end. The canal is approximately fifty feet wide. A plug at the mouth of the canal previously prevented boat traffic from entering and exiting the canal. Petitioner's predecessor in title permitted the plug to partially erode, and Petitioner's president had some of the boulders which helped form the plug removed. The digging of the canal, the placement of the plug, and the partial removal of the plug were performed without benefit of state and federal permits. Petitioner's development plan is that twenty single-family homes will surround the canal, with each home being serviced by a septic tank and a boat dock. On the oceanside of the partial plug is a small depressed area which was dredged at the same time that the canal itself was dredged. Surrounding that depressed area is very shallow water. Petitioner proposes to remove the plug from the existing canal and shallow the canal to a uniform depth of -10 feet and two years later to a uniform depth of -6 feet. Petitioner further proposes to dredge an access channel from the mouth of the canal northward for a distance of approximately 480 feet where it would join with an existing channel. The access channel proposed to be dredged would be approximately fifty feet wide and six feet deep at low tide. The area to be dredged to create the access channel is classified as Class III waters, is within the Florida Keys Special Waters, and is also classified as Outstanding Florida Waters. The waters outside the existing canal where Petitioner proposes to dredge the access channel are also located within John Pennekamp State Park, the site of a natural coral reef. Due to the disparity in depths between the shallow waters outside the existing canal which are only one or two feet deep and the depth of the existing canal which is as deep as twenty feet, the canal itself experiences a very long flushing time. The lengthy flushing time causes the waters in the existing canal to fall below minimum state water quality standards The area proposed to be dredged for the navigational access channel is thickly vegetated by a productive seagrass and algae community. The area is in excellent condition, and the seagrass and algae community is very healthy. The seagrass and algae communities serve as habitat for thousands of organisms, including juvenile lobster and other small plants and animals; serve as a food source for animals; stabilize sediments through their root structures; reduce pollution by filtering pollutants from the water; are a natural feature of the John Pennekamp State Park, and are part of the ecological unit that is important for the survival of reef corals. The proposed dredging of the access channel would destroy an area of approximately one-half acre. Excessive turbidity is often a problem with dredge and fill activities, and reef coral need clear water for survival. Once dredged, the proposed access channel would not be expected to revegetate. Further, the proposed dredged channel will violate state water quality standards for dissolved oxygen. The proposed navigational access channel would connect the mouth of the existing canal with the Post channel to the north of Petitioner's property. The Post channel dug in approximately 1971 is also six feet deep, violates state water quality standards for dissolved oxygen, and has never revegetated even though replanting of vegetation has been attempted. The destruction of the one-half acre area of healthy productive habitat would adversely affect fish and other marine wildlife, resulting in a decrease in fishery production and marine productivity. The residential subdivision will be a source of pollutants from, among other things, septic tanks, fertilizers, stormwater run-off from paved areas, boats, and boat engines, into the existing canal in violation of state water quality standards for Class III waters and would lower the ambient water quality of the adjacent Outstanding Florida Waters. The long flushing time of the canal, even if shallowed as proposed, will result in the waters of the canal failing to meet state water quality standards. Any pollutants or organic material entering or blown into the canal will remain in the canal to be broken down by bacteria which consume oxygen, resulting in low dissolved oxygen in violation of state water quality standards. Further, pollutants will be exported periodically into the receding waters outside the canal, resulting in degradation of those Outstanding Florida Waters. The project is not in the public interest since the project will result in water quality violations and in the destruction of an area of highly productive shallow water habitat. The adverse cumulative impacts of allowing riparian landowners along the Florida Keys to dredge access channels are overwhelming.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered: Denying Petitioner's application for a permit for its proposed project, and Dismissing Intervenor Izaak Walton League, Mangrove Chapter, as a party to this proceeding. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 5th day of November, 1989. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1989. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 88-1813 Petitioner's proposed findings of fact numbered 1 and 2(a) have been rejected as being contrary to the weight of the evidence in this cause. Petitioner's proposed findings of fact numbered 2(b) and 2(d) have been rejected as not being Supported by the evidence in this cause. Petitioner's proposed finding of fact numbered 2(c) has been rejected as being irrelevant to the issues under consideration in this cause. The Department's proposed findings of fact numbered 1-10 and 12-22 have been adopted either verbatim or in substance in this Recommended Order. The Department's proposed finding of fact numbered 11 has been rejected as being unnecessary for determination of the issues herein. Intervenor's proposed findings of fact numbered 1- 13, 16, 18, 20, and 21 have been adopted either verbatim or in Substance in this Recommended Order. Intervenor's proposed finding of fact numbered 15 has been rejected as being unnecessary for determination of the issues in this cause. Intervenor's proposed finding of fact numbered 19 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. COPIES FURNISHED: Pamela P. Garvin, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399 Cayetano F. Alfonso, President Sunland Estates, Inc. 17400 Northwest 17th Avenue Miami, Florida 33056 Maureen B. Harwitz, Esquire 2390 Bayview Lane North Miami, Florida 33181 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue There are two sets of issues to be considered in this matter which require separate determination. The issues in D.O.A.H. Case No. 83-2133 pertain to a notice of violation and orders for corrective action filed against Michael H. Hatfield related to the alleged construction of a causeway from a mainland shoreline to an island owned by Hatfield. In particular, that action by the Department alleges certain violations of environmental law and demands restoration of the area in which the causeway was constructed. The companion case, D.O.A.H. Case No. 84-0465, concerns Hatfield's request to construct a causeway from the mainland to the island in a location apart from the existing causeway. The Department has denied Hatfield's request for necessary permission to install that causeway.
Findings Of Fact Michael H. Hatfield is the owner of property in Marion County, Florida. That property is located on Lake Nicatoon, a 307 acre nonmeandered water body. Lake Nicatoon is a Class III water body as defined in Chapter 17-3, Florida Administrative Code. To gain access to the island from the mainland, Hatfield sought permission from the Department of Environmental Regulation to construct a causeway from the mainland to the island. The area between the mainland and the island is subject to water level fluctuations in that at times it is essentially dry and other times is under the waters of Lake Nicatoon. His application for environmental permits was filed on May 13, 1980. A copy of that application may be found as Department's Exhibit No. 4, admitted into evidence. His proposed project calls for the placement of approximately 525 cubic yards of fill in wetlands and littoral zones adjacent to the mainland and island. Per the application, the causeway would be 7 yards wide at the bottom and a length of approximately 73 yards and is to be constituted of sand and crushed concrete block. In particular, Hatfield wishes access to allow construction of a residence on the island and to gain entrance to the residence after construction. The Department of Environmental Regulation reviewed the application and on May 27, 1980, made a request to Hatfield to provide additional information related to his proposal. A copy of that request for additional information may be found as part of Department Environmental Regulation's Exhibit No. 3, admitted into evidence. Among the items requested was information from local government related to that entity's approval of the project in accordance with Section 253.124, Florida Statutes. This request was made based upon the perception by the Department of Environmental Regulation that Lake Nicatoon was found in the Florida Lakes Gazateer of Meandered Water bodies. The Department continued to operate on this erroneous assumption throughout the permit review process. Unknown to the Department, the lake was a nonmeandered lake which was discovered by Hatfield and verified on September 8, 1980, through an affidavit of the Division Director of State Lands for the State of Florida. A copy of that affidavit may be found as Hatfield's Exhibit No. 2, admitted into evidence. In effect, although the Department had made a good faith request for information pursuant to chapter 253.124, Florida Statutes, that information was not necessary because Lake Nicatoon is nonmeandered and not subject to Chapter 253, Florida Statutes, jurisdiction. Additionally, the requested hydrographic information pertaining to Chapter 253, Florida Statutes, was not needed. Among the other items requested in the way of additional information was item No. 6, pertaining to the placement of fill. That request was not complied with. Requested information related to a plan view was not complied with. Requested information in the category of "notes and drawings" was not complied with. Requested information pertaining to plans for complying with state water quality standards for Class III waters as related in Section 17- 3.121, Florida Administrative Code, was not complied with. These materials were relevant to the permit review process and the request for the information was never modified nor abandoned by the Department, notwithstanding discussions between the parties in an attempt to reconcile their differences in the permit assessment process. Those suggested alternatives to grant Hatfield access were not satisfactory to Hatfield and the original description of his project as set forth in his application of May 1980, has remained constant throughout the permit review process to include the final hearing. Generally, the parties' discussion of the installation or a bridge between the mainland and the island or the placement of a temporary steel road during the course of construction of his residence on the island did not promote a modified permit application. Finally the indication by staff members of the Department of Environmental Regulation that the project envisioned by his original application would not likely be approved did not cause a change in the obligation to respond to the request for additional information. Even though Hatfield became aware that it was unlikely that the staff would look with favor upon the project as proposed, in making its recommendation as to the issuance or nonissuance of the permit, the staff attitudes in the review process could only have become accepted with finality at the point of entering the Recommended Order. Consequently, it was incumbent upon Hatfield to respond to the request for additional information, in that the information sought was relevant to a consideration of the project which would be examined in the course of the final hearing. The discussions, related to the grant of permission to gain access by placement of a structure between the landslide and the island, entered into by the Department and Hatfield, briefly mentioned before, involved 1) the possibility of the construction of a bridge, 2) use of a metal roadway during the buildout of his residence and 3) his proposal as offered through the application. The bridge proposal advanced by Hatfield was for a span of 20 to 30 feet end the Department desired a span of 200 feet. The reason for the length of bridge required by the Department was to assure protection of a reasonable amount of the lake ecosystem between the landside and the island. Hatfield found the Department's proposed bridge length to be unacceptable due to financial reasons. He likewise did not like the idea of a temporary utilization of a steel roadway to the island during the construction of his residence. Hatfield preferred a permanent road allowing vehicular traffic from the mainland to the island. In conjunction with this alternative offered by the Department, Hatfield could later access the island by utilization of a boat on those occasions when the waters of Lake Nicatoon stood between the landside and the island. While Respondent's application for dredge and fill permit was being considered, an inspection of the property made in the summer of 1982, revealed that a causeway connecting the mainland and Hatfield's island property had been constructed. This causeway is depicted in red on Department's Exhibit No. 10, admitted into evidence, a series of aerial photographs. Ground shots of the causeway may be found as Department of Environmental Regulation's photographic Exhibits No. 8 and No. 9, admitted into evidence. The causeway was primarily constructed by the dredge of material and placement of the material immediately next to the dredge site with an overlay of offsite fill. Respondent was responsible for the construction of this causeway. The causeway is not found in the location contemplated by his permit application and permission was not given by the Department of Environmental Regulation to construct the causeway. This construction occurred in an area dominated by the vegetative species beak rush (Rhynchospora tracyi). Having placed the causeway in this location, Hatfield has created a stationary installation which caused pollution in the course of that construction and can reasonably be expected to be a future source of pollution, in that the dredging and placement of fill and the effects of the structure after construction have emitted and shall emit in the future, substances that are harmful to plant and animal life, in contravention of the Department of Environmental Regulation's rules. By this installation, an alteration in the chemical, physical and biological integrity of the waters of the state has been occasioned by the destruction of submerged land vegetational communities which provide water treatment, and food and habitat for fish and wildlife. When the fill was placed, the filtration and assimilation system of Lake Nicatoon was adversely affected through the removal of existing wetland vegetation. Were the applicant granted the opportunity to install the proposed causeway, the same adverse effects or problems could be expected with that installation. Having discovered the existence of the causeway, and after warning Hatfield that this installation was in violation of regulatory statutes and rules related to the Department's responsibility in environmental matters, Hatfield was served with a notice of violation and orders for corrective action from the Department of Environmental Regulation. The date of this action was June 1983. A copy of that document may be found as Department's Exhibit No. 3, admitted into evidence. In this same time frame, the Department continued to evaluate the permit application of Hatfield related to the proposed causeway and an application appraisal for that proposal was made on June 6, 1983. A copy of that appraisal may be found as Department's Exhibit No. 2, admitted into evidence. Subsequent to that time, and having failed to receive the aforementioned requested additional information from the Respondent, the Department issued its intent to deny the application related to the proposed causeway. A copy of the intent to deny may be found as Department's Exhibit No. 5, admitted into evidence. The date of the denial was November 4, 1983. A more detailed examination of the area in question on the northern shoreline of the lake on the mainland side, shows that natural vegetation has been replaced with a Bahla type of grass. The gradient dropping toward the lake proper reveals upland grasses giving way to submerged species such as maiden cane (Panicum hemitom), pickerelweed (Pontederia lanceolata) and pond lilies (Nymphaea). In this area, the transitional species to be found include St. John's wort (Hypericum fasculatum) and switch grass (Panicum virgatum). Between the landside and the island, in the direction of the island, there are less rooted plants. The dominant plants in this vicinity are pond lilies. The distance to be traversed between the landside and the island related to landward extent of the lake on the landside and island where the proposed causeway would be located is approximately 550 feet, and net the 225 feet described in the application. As you approach the island from the landside, the last approximately 150 feet along the proposed causeway's alignment is dominated by transitional freshwater species to include doheen holly (Ilex cassine), button bush (Cephalanthus occidentalis), St. John's wort (Hypericum fasculatum), and switch grass (Panicum virgatum). The island, itself, is dominated by live oak and sable palm. To summarize, the area between the landside shoreline along the lake and the island shoreline, is dominated by submerged and transitional freshwater species as found in Rule 17-4.02(17), Florida Administrative Code. In the area of the proposed causeway are found detrital feeders, the most numerous of which are amphipods. There ore also larval insects and gastropods, bivalves and freshwater shrimp. Crayfish, frogs and tadpoles are found in this area. In addition, species of fish include mosquito fish, least killfish, shiners, blue spotted sunfish, juvenile largemouth bass, silverside and juvenile catfish. Bird species observed in the area are blue heron, snowy egret, lympkins and ibis. Soft-shell turtles have also been observed in the vicinity of the project site. Should the construction of the causeway be allowed, short and long-term adverse effects on surface waters of Lake Nicatoon can be expected and these effects will be negative. With installation of the causeway, there would be a permanent elimination of the water bodies' littoral zone vegetative community which is important in converting available dissolved nutrients into food material in the aquatic ecosystem. The vegetation also assists in the cleansing of the ambient water and by that action reducing pollution loading. With the construction of the causeway, state water quality standards related to biological integrity, Section 17-3.121(7), Florida Administrative Code; nutrients, Section 17-3.121(17), Florida Administrative Code; and turbidity, Section 17-3.061(2)(r), Florida Administrative Code, can reasonably expected to be violated. Hatfield has failed to give reasonable assurances that the short and long-term impacts of the construction of the causeway would not violate and continue to violate water quality standards as alluded to. These problems as described exist while the unauthorized causeway remains. Hatfield, by actions involving private parties and the State of Florida, Department of Environmental Regulation, has sought necessary easements to gain access to his island property. While successful in this undertaking, these successes do not include the grant of a prohibition against the Department of Environmental Regulation performing its regulatory responsibility. In particular the decisions in the Circuit Court of the Fifth Judicial Circuit, in and for Marion County, Florida, Case No. 83-1826-C, Michael Hatfield, Plaintiff v. State of Florida, Department of Environmental Regulation, Defendant, granting partial Summary Judgment for the plaintiff and Defendant's Motion to Dismiss do not bar the Department from fulfillment of its regulatory charge. A copy of these decisions of court are found as Hatfield's Exhibit No. 7, admitted into evidence. In order to return the area where the unauthorized causeway has been placed to its prior existing condition, it would be necessary to remove the fill material and return elevations at the site to their prior level before the construction of the causeway. In addition, beak rush should be replanted in the areas where this dominant vegetation has been removed. An amount of $30.75 has been incurred in the way of cost to prosecute D.O.A.H. Case No. 83-2133
Findings Of Fact THE PARTIES The Respondent is the successor agency to the Florida Department of Environmental Regulation and has permitting authority over the subject project pursuant to Chapter 403, Florida Statutes. The Respondent's file number for this matter is 311765419. Petitioner, Alden Pond, Inc., is a subsidiary of First Union National Bank of Florida and is the successor in interest to Orchid Island Associates. John C. Kurtz is the designated property manager for this project and appeared at the formal hearing as Alden Pond's authorized agent. THE PROPERTY AND THE VICINITY Petitioner has record title to all of Government Lot 9 in Section 15, Township 31 South, Range 39 East, less the Jungle Trail Road right of way, and all of Government Lots 2, 3, 6, and 7, Section 22, Township 31 South, Range 39 East, less the road right of way for State Road 510. Petitioner does not own land below the mean high water line of the Indian River, which forms the western boundary of the property. Much of the property, approximately the northern half, abuts a part of the Indian River that has been leased by the State of Florida to the United States Fish and Wildlife Service as part of the Pelican Island National Wildlife Refuge. The Pelican Island National Wildlife Refuge was the first national wildlife refuge established in the United States and has been declared to be a water of international importance. Upland of the proposed project is a golf course and residential development. The Indian River at the project site is within the Indian River Aquatic Preserve, which is classified as Class II Outstanding Florida Waters. The Indian River in the vicinity of the project is part of the Intercoastal Waterway system, is navigable by large vessels, and is an important travel corridor for manatees. The Indian River in the vicinity of the project is a healthy estuarine system. Minor deviations from Respondent's dissolved oxygen standards have been recorded. These minor deviations are typical and represent natural conditions for this type of system. Water quality sampling from March 1994 yielded no samples in which deviations from Respondent's dissolved oxygen standards were observed. THE ORIGINAL PROJECT On February 21, 1990, Orchid Island Associates submitted to the Respondent an application for a wetland resource permit to construct a boat basin and canal on its property adjacent to the Indian River. The artificial waterway that Petitioner proposes to construct on its property will, for ease of reference, also be referred to as a canal. Petitioner proposes to dredge from the north terminus of the canal to the Intercoastal Waterway a channel, which will be referred to as the hydrological channel. Petitioner proposes to dredge from the south terminus of the canal to the Intercoastal Waterway a channel, which will be referred to as the access channel. The original project involved, among other features, a canal approximately 6,400 feet long, the dredging of the hydrological channel and the access channel, the construction of 44 docks to be located along the eastern side of the canal, and the dredging of an area adjacent to the canal for a 58 slip marina. The width of the canal was to range between 100 and 200 feet. The original project required the filling of 4.72 acres of wetlands and the dredging of 8.81 acres of wetlands for a direct impact on 13.53 acres of wetlands. On January 15, 1991, Respondent issued a preliminary evaluation letter pertaining to the initial application that contained the following conclusion: "the project cannot be recommended for approval." On September 12, 1991, Respondent issued a Notice of Permit Denial dated September 12, 1991, which stated that the application would be denied. This denial letter did not suggest any revisions that would make the project permittable and represented a strong position by the Respondent that the project as originally proposed should be denied. The September 12, 1991, Notice of Denial correctly described the project site and the initial proposal as follows: . . . The proposed project is located north of and adjacent to County Road 510, north and east of Wabasso Bridge and adjacent to the eastern shore of the Indian River. The Indian River at the project site is within the Indian River Aquatic Preserve, which is classified as Class II, Outstanding Florida Waters. The Pelican Island National Wildlife Refuge, also an aquatic preserve and an Outstanding Florida Water, is immediately west of the project site. Historically, the site of the marina and its associated upland development consisted of a wetland adjacent to the Indian River and a large citrus grove. Subsequently, the wetland was surrounded by a dike and impounded for mosquito control purposes. At some point in the past, a borrow pit 1/ was excavated within the landward (eastern) edge of the impounded wetland. Most of the citrus grove has been converted to a residential community associated with a golf course. * * * The proposed project included excavation of a 6,400 linear ft. canal along the upland/wetland edge between the impoundment and the adjacent upland, dredging the existing borrow pit to a depth of -8 ft. NGVD to create a boat basin that will connect it to the excavated canal, construction of 58 boat slips within the excavated boat basin, excavation of two flushing channels through a portion of the impoundment dike and wetlands within the impoundment to connect the excavated channel to the Indian River and a natural lake within the impoundment, excavation of a 700 ft. long access channel to connect the excavated canal to the Intercoastal Waterway through the seagrass beds along the southern boundary of the project site, filling of 4.72 ac. of wetlands at three locations within the impoundment to create uplands, and construction of a boardwalk along the southern edge of the excavated canal through the wetlands in the impoundment to provide access to the marina basin. To mitigate for the loss of wetlands, the applicant proposes to enhance 68 ac. of wetlands within the mosquito impoundment by returning the impoundment berm to grade and implementing a rotary ditching project and open marsh mosquito management to improve the hydrology of the wetlands in the impoundment, planting high marsh species, and donating the enhanced wetlands to the State of Florida for incorporation into the Pelican Island National Wildlife Refuge through a lease to the United States Fish and Wildlife Service. The September 12, 1991, Notice of Denial provided, in pertinent part, the following reasons for the denial of the project: The Department hereby denies the permit for the following reasons: Water quality data for the Indian River adjacent to the project site indicates that the dissolved oxygen (D.O.) standard is not currently being met. The proposed 8 ft. deep canal and marina basin to the Indian River would be expected to result in introduction of additional low D.O. waters into a system which already does not meet the D.O. standard, thereby resulting in further degradation of the water quality in the Indian River. In addition to the D.O. problem, the project would result in water quality degradation due to the pollutant loading of marina related pollutants from the boats docked at the 58 slips that are proposed as part of the project in the marina basin. Additional water quality degradation also may result from boats that are moored at docks that may be constructed at a later date by the owners of the 44 lots adjacent to the canal, pursuant to the exemption in Section 403.813(2)(b), Florida Statutes. This exemption provides that private docks in artificially constructed waters are exempt from dredge and fill permitting and may be constructed without a permit providing they meet the size criteria listed in the statute and provided they do not impede navigation, affect flood control, or cause water quality violations. The boats in the canal system and boat basin would be a chronic source of pollutants for the life of the facility. The proposed water depths and slip sizes will make the basin accessible for use by large boats which can be expected to have on-board sanitation devices. The hydrographic report submitted by the applicant indicates the proposed waters will flush with a 2.6 hr. duration. Although this flushing rate will prevent water quality pollutants from being concentrated in the waters of the basin, it also will have the effect of transporting boat related pollutants to the Indian River, thereby causing degradation of the Outstanding Florida Water. The project site is within Class II Waters, prohibited for shellfish harvesting, but is adjacent to Class II Waters, approved for shellfish harvesting. Discussion with the Department of Natural Resources, Bureau of Regulation and Development, indicates that the pollutant loading from the project would probably cause the adjacent waters to be reclassified as "prohibited for shellfish harvesting." The reclassification of the adjacent waters would lower the existing use of the waterbody. Rules 17-302.300(1), (4), , and (6), Florida Administrative Code, state that: Section 403.021, Florida Statutes, declares that the public policy of the State is to conserve the waters of the State to protect, maintain, and improve the quality thereof for public water supplies, for the propagation of wildlife, fish and other aquatic life, and for domestic, agricultural, industrial, recreational, and other beneficial uses. It also prohibits the discharge of wastes into Florida waters without treatment necessary to protect those beneficial uses of the waters. * * * Existing uses and the level of water quality necessary to protect the existing uses shall be fully maintained and protected. Such uses may be different or more extensive than the designated use. Pollution which causes or contributes to new violations of water quality standards or to continuation of existing violations is harmful to the waters of this State and shall not be allowed. Waters having water quality below the criteria established for them shall be protected and enhanced. However, the Department shall not strive to abate natural conditions. If the Department finds that a new or existing discharge will reduce the quality of the receiving waters below the classification established for them or violate any Department rule or standard, it shall refuse to permit the discharge. As a result of the above cited factors, degradation of water quality is expected. The applicant has not provided reasonable assurance that the immediate and long-term impacts of the project will not result in the degradation of existing water quality in an Outstanding Florida Water and the violation of water quality standards pursuant to Rules 17-312.080(1) and (3), Florida Administrative Code, and Rule 17-4.242(2)(a)2.b, Florida Administrative Code. Specific State Water Quality Standards in Rules 17-302.500, 17-302.510 and 17-302.550, Florida Administrative Code, affected by the completion of the project include the following: Bacteriological Quality - the median coliform MPN (Most Probable Number) of water shall not exceed seventy (70) per hundred (100) milliliters, and not more than ten percent (10 percent) of the samples shall exceed a MPN of two hundred and thirty (230) per one hundred (100) milliliters. The fecal coliform bacterial level shall not exceed a median value of 14 MPN per 100 milliliters with not more than ten percent (10 percent) of the samples exceeding 43 MPN per 100 milliliters. Dissolved Oxygen - the concentration in all waters shall not average less than 5 milligrams per liter in a 24-hour period and shall never be less than 4 milligrams per liter. Normal daily and seasonal fluctuations above these levels shall be maintained. Oils and Greases: Dissolved or emulsified oils and greases shall not exceed 5.0 milligrams per liter. No undissolved oil, or visible oil defined as iridescence, shall be present so as to cause taste or odor, or otherwise interfere with the beneficial use of waters. In addition the applicant has not provided reasonable assurance that ambient water quality in the OFW will not be degraded pursuant to Rule 17-4.242(2)(a)2.b, Florida Administrative Code. In addition, pursuant to Rule 17-312.080(6)(a), Florida Administrative Code, the Department shall deny a permit for dredging or filling in Class II waters which are not approved for shellfish harvesting unless the applicant submits a plan or proposes a procedure to protect those waters and waters in the vicinity. The plan or procedure shall detail the measures to be taken to prevent significant damage to the immediate project areas and to adjacent area and shall provide reasonable assurance that the standards for Class II waters will not be violated. In addition to impacts to water quality, the project is expected to adversely affect biological resources. A portion (estimated at between 0.4 and 0.5 ac.) of the access channel alignment is vegetated by seagrasses, the dominant species being Halodule wrightii (Cuban shoal weed). Seagrass beds provide important habitat and forage for a variety of wildlife species. The loss of seagrass beds will result in a loss of productivity to the entire system that would be difficult to replace. The 4.72 ac. of wetlands proposed to be filled and the excavation required for the proposed channels (approximately 38 ac.) are productive high marsh and mixed mangrove wetlands which are providing wildlife habitat and water quality benefits. These wetlands have been adversely impacted by the freeze of 1989, but they appear to be recovering well. The proposed mitigation would provide some benefits through exotic removal and increased hydrologic connection to the Indian River. However, these benefits would not be adequate to offset the adverse impacts of the proposed wetland losses for this project. The project site and the adjacent Pelican Island National Wildlife Refuge are used for nesting and foraging by a variety of species, including little blue heron (Egretta caerulea) (Species of Special Concern (SSC)--Florida Game and Fresh Water fish Commission (FGFWFC)), reddish egret (E. rufescens) (SSC-FGFWFC), snowy egrets (E. thula) (SSC-FGFWFC), tricolored herons (E. tricolor) (SSC-FGFWFC), brown pelicans (Pelecanus occidentalis) (SSC-FGFWFC), roseate spoonbills (Ajaja ajaja) (SSC-FGFWFC), least tern (Sterna antillarum) (threatened-FGFWFC), and wood storks (endangered-FGFWFC). The construction of the project and the increased boating activity due to the project would result in the disturbance of those species that use the wetlands in the project area. The Indian River adjacent to the project site is used by the West Indian Manatee (endangered-FGFWFC). The increased boat traffic would increase the chance of manatee deaths due to boat impact. In addition, the excavation of the access channel through the seagrass beds would decrease the available forage for manatees in the project area. For the above reasons, this project is also not clearly in the public interest, as required pursuant to Section 403.918(2), Florida Statutes, because it is expected to: adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; adversely affect the fishing or recreational values or marine productivity in the vicinity of the project; be permanent in nature; diminish the current condition and relative value of functions being performed by areas affected by the proposed activity. The applicant has not provided reasonable assurance that the project is clearly in the public interest. On September 12, 1991, the owner and holder of the mortgage on the Orchid Island development (which includes the real property on which the Petitioner hopes to construct the project at issue in this proceeding) instituted foreclosure proceedings. The circuit judge who presided over the foreclosure proceeding soon thereafter appointed an interim receiver to manage the property until a receiver who would manage the property for the duration of the foreclosure proceeding could be appointed. THE PROJECT MODIFICATIONS AND FACTS AS TO ESTOPPEL On October 31, 1991, representatives of Orchid Island Associates met with Respondent's staff to discuss this application. Trudie Bell, the Environmental Specialist assigned to supervise this application, and Douglas MacLaughlin, an attorney employed by Respondent, attended the meeting. Those attending the meeting on behalf of Orchid Island Associates included the interim trustee, the attorney for Orchid Island Associates, and Darrell McQueen, who at all times pertinent to this proceeding was the project engineer. Mr. McQueen was upset that the project was going to be denied and wanted to know what could be done to make it a permittable project. In response to Mr. McQueen, Ms. Bell, without making any promises, suggested the following modifications to the project that might make it permittable: moving the canal more upland, elimination of the boat basin/marina, reducing the depth of the artificial waterway, and increasing the width of the littoral zone. On November 11, 1991, the representatives of Orchid Island Associates responded to the Respondent's suggested modifications and agreed to make the modifications. In an effort to design a project that would be acceptable to Respondent, Orchid Island Associates proposed to the Respondent to make certain modifications to the design of the project. Petitioner has agreed to those modifications which include the following: Elimination of the boat basin and associated 58 dock marina and clubhouse, but with the addition of 18 relatively narrow residential lots, each of which would have a dock on the south end of the waterway. 2/ Reduction of the depth of the artificial waterway to -7 feet NGVD from the proposed -8 feet NGVD. Realignment of the artificial waterway as depicted on the sealed drawings submitted to Respondent and dated January 28, 1993. Increasing the width of the littoral zone to be created along the length of the artificial waterway to 40 feet on the west side and 10 feet on the east side. On November 12, 1991, John C. Kurtz was appointed the receiver of the Orchid Island Associates property and remained the receiver until the property was conveyed to Petitioner at a foreclosure sale on July 31, 1993. After it acquired the property, Petitioner employed Mr. Kurtz to manage the subject property. Mr. Kurtz has been active in the project since his appointment as the receiver of the property. On November 21, 1991, Petitioner met with Respondent's staff, including Ms. Bell, to discuss the modifications. At that meeting, the Respondent's staff reacted favorably to the modifications agreed to by Petitioner. Ms. Bell described the revisions as "excellent" and "a great idea" and stated that the project was "a nice project" and that it looked like the project was heading in the right direction. Ms. Bell also represented that the Respondent would grant the Petitioner extensions of time to allow for a formal revision if the project was deemed permittable. Ms. Bell kept her superiors informed of the status of her review. On December 11, 1991, Charles Barrowclaugh, an employee of the Respondent, made an inspection of the site and informed representatives of the Petitioner that he had briefed Carol Browner, who was Secretary of the Department of Environmental Regulation, as to the project and the proposed modifications. Mr. Barrowclaugh stated that he believed the project was permittable. Petitioner was encouraged by Mr. Barrowclaugh's comments and by the fact that he would incur the expenses of traveling to the site. Between December 11, 1991, and November 13, 1992, Petitioner provided information to Respondent pertaining to the revised project. This additional information included a description of the revised plan and a revised schematic drawing, but it did not include detailed drawings of the revised project. On November 13, 1992, Ms. Bell wrote to Mr. McQueen a letter that stated, in pertinent part, as follows: The Bureau of Wetland Resource Management has reviewed the revised plan and additional information submitted on September 16. The revised proposal appears to address all of the issues that made the original proposal unpermittable. The detailed 8.5 by 11 inch permitting drawings will have to be revised to reflect the revised proposal and submitted to the Bureau for review. Kelly Custer and Orlando Rivera will be reviewing the project in the future. Petitioner interpreted that letter to mean that the Respondent intended to permit the project. At the time she wrote the letter of November 13, 1992, Ms. Bell thought the revised project would be permitted. Petitioner relied on the oral representations made by Respondent's staff and on the November 13, 1992, letter in continuing pursuit of a permit. Absent these encouraging comments by Respondent's staff, Petitioner would have discontinued pursuit of the permit. Although Petitioner was understandably encouraged by the discussions its representatives had with Respondent's staff, it knew, or should have known, that the favorable comments it was receiving from members of Respondent's staff were preliminary and that additional information would be required and further evaluation of the project would take place. Petitioner's representatives knew that the staff with whom they were having these discussions did not have the authority to approve the application, but that they could only make recommendations to their superiors. In late 1992, Kevin Pope, an Environmental Specialist employed by Respondent, was assigned as the primary reviewer of the revised project. At the time he became the primary reviewer of the project, Mr. Pope did not make an immediate, independent evaluation of the project, and relied on what other staffers who had been involved in the review told him. Until he conducted his own review of the project, Mr. Pope believed that the project was "clearly permissible". Mr. Pope informed a representative of the Petitioner of that belief and told the representative that he was prepared to start drafting the permit once he received final drawings documenting the modifications to the project. Subsequent to that conversation, Mr. Pope received the drawings he requested. After he received and reviewed the final drawings, Mr. Pope determined that all issues raised by the denial letter had not been addressed. Among the concerns he had was the fact that the project would dredge into the Indian River to the Intercoastal Waterway and that part of the dredging activity (at the north end of the project) would be in Class II shellfish approved waters. Mr. Pope again contacted the state and federal agencies that had originally commented on the project, described the proposed modifications to the project, and requested comments. Most of the agencies continued to object to the project. On August 5, 1992, Mr. Pope held a meeting with the commenting agencies and with representatives of the Petitioner to discuss the objections to the project. 3/ The agencies provided additional comments after this meeting and most continued to oppose the project. Mr. Kurtz testified that on June 1, 1993, Stacey Callahan, an attorney employed by Respondent, told him that she was attempting to draft the permit for the project. Ms. Callahan asked for sample wording for a restrictive covenant or for an easement that would limit the number of boats that could use the proposed docks. Subsequent to that inquiry, Petitioner was informed by Mr. Pope that the project would be denied. Petitioner has not made any specific proposal to assure a limitation on the number of boats that will be able to dock in the proposed canal. In June of 1993, a large number of objections to the project were filed with Respondent by members of the public. In early July, 1993, Secretary Wetherell responded to those objectors with a letter stating, in part, that the "Department's letter of November 1992 indicating an intent to issue for the project was imminent appears to have been premature." On September 20, 1993, Mr. Pope informed Petitioner's attorney that the Respondent was not going to change its position that the project, even with the modifications, should be denied. The decision not to permit the modified project was made by Mr. Pope. The only permit application filed by the Petitioner was the application for the initial permit. No formal amended application that incorporates all of the changes that Petitioner discussed with Respondent's staff was filed. A total of $74,735 was spent on behalf of the applicant on this project between December 26, 1991, (the date of the meeting with Mr. Barrowclaugh) and July 31, 1993, (the date the property was conveyed to Petitioner). From July 31, 1993, through April of 1994, Petitioner spent an additional $47,488 on the application for this project. The expenditures after July 31, 1993, included engineering costs that were incurred before that date. These figures do not include the costs of this proceeding. THE REVISED PROJECT The revised project may be summarily described as follows: Petitioner proposes to construct a canal that will be approximately 6,400 feet long, up to 200 feet wide, and -7 NGVD deep as depicted on drawings that have been submitted into evidence. There will be a littoral zone 40 feet wide on the west side of the canal and a littoral zone 10 feet wide on the east side. A hydrological channel, proposed from the north terminus of the canal to the Intercoastal Waterway to enable a proper flow of water through the canal, will be some 200 feet wide, 70 feet in length, and -3 NGVD. Petitioner proposes to construct a barrier at the north terminus of the canal to prevent manatees and boats from entering the canal from the north and has agreed to maintain that barrier. An access channel, proposed from the south terminus to the Intercoastal Waterway to enable boats access to the canal, will be some 200 feet wide, 700 feet in length, and -7 NGVD. A total of 62 docks are proposed. The project includes a mitigation plan that will be discussed below. THE REQUESTED VARIANCE The construction of the hydrological channel would be in Class II conditionally approved shellfish waters. Dredging in Class II conditionally approved shellfish waters is prohibited unless a variance is issued by Respondent that would permit this otherwise prohibited activity. Petitioner's attorney submitted a letter to the Respondent on August 18, 1993, for a variance to construct the channel from the north terminus of the canal to the Intercoastal Waterway. That letter stated, in pertinent part, as follows: DEP Rule 17-312.080(17) states: "Permits for dredging or filling directly in Class II or Class III waters which are approved for shellfish harvesting by the Department of Natural Resources shall not be issued." This provision is applicable to the pending application by Orchid Island Associates. Accordingly, we discussed Orchid Island requesting a variance pursuant to Section 403.201, Florida Statutes, and Rule 17-103.100, Florida Administrative Code, as a means of overcoming this prohibition. Since the dredge and fill application is pending, you indicated it would be appropriate for Orchid Island to ask, during final review of this application, that the Department also consider a request for a variance pursuant to the above mentioned statute and rule. Please consider this letter that request. . . . Petitioner did not submit along with its request the fee required by Respondent to process that request. Respondent did not advise Petitioner that it would not process its request without the requisite application fee until the prehearing stipulation was prepared for this proceeding shortly before the formal hearing. There was no evidence that Petitioner attempted to check on the status of its request for a variance or that it expected Respondent to act on the request for a variance independent of its final review of the overall project. As of the time of the formal hearing, Petitioner had not submitted to Respondent the fee that Respondent asserts is required before the request for the variance will be processed. Respondent asserted that position in the prehearing statement that was filed shortly before the formal hearing. The evidence as to the flow of water through the proposed canal assumed the existence of the hydrological channel from the north terminus of the proposed canal to the Intercoastal Waterway and the existence of the access channel from the south terminus of the proposed canal to the Intercoastal Waterway. CONSTRUCTION OF THE PROJECT The revised version of the artificial waterway will be excavated primarily from uplands, but the excavation will require that 3.6 acres of wetlands be filled and 7.1 acres of wetlands be dredged. The direct impact on wetlands will be at least 10.7 acres. The mitigation plan proposes that the berms around the mosquito impoundment will be leveled, the berm ditches will be filled, and certain rotary ditches will be dredged. The amount of wetlands to be impacted by that proposed activity was not established. The artificial waterway will be constructed utilizing a series of separate construction cells, a rim ditch, and filtration chambers. All excavated material will be disposed of on uplands. The construction system will filter most solids. Turbidity suppression devices will be used to minimize any turbidity associated with the excavation of the access channel at the south terminus and the hydrological channel at the north terminus. Petitioner established that its proposed construction techniques are consistent with best management practices. The small body of water that is referred to as the former borrow pit in the denial letter of September 12, 1991, is known as Boot Lake. Petitioner proposes to dredge the eastern end of Boot Lake, consisting of an area 800 feet by 180 feet (3.3 acres), to create part of the canal. The access channel at the south terminus of the canal will be approximately 700 feet in length and will have to be hydraulically excavated in the Indian River to connect the canal to the Intercoastal Waterway. The hydrological channel at the north terminus of the canal will be hydraulically excavated to connect the canal to the Indian River. The connection will require approximately 70 feet of dredging to -3 NGVD, which is the minimum necessary to maintain the proper flow of water through the canal. HYDROLOGY OF THE CANAL The artificial waterway will function as a flow-through system driven by a difference in the water surface elevation (the head difference) between the north terminus and the south terminus. The flushing of the artificial waterway far exceeds the Respondent's flushing requirement benchmark, which is a flushing time of four days. If a hypothetical pollutant's concentration is reduced to 10 percent of its initial concentration in four days, the flushing is considered to be acceptable. The flushing time for the system is approximately 2.6 hours, which will produce five total volume replacements per tidal cycle. The predicted flushing of the artificial waterway is quite rapid and energetic. The predominate flow of water in the artificial waterway is from north to south. At times, however, the flow will be from the south to the north. At the request of the Respondent, Petitioner conducted a tracer dye study within the Indian River at the proposed south terminus of the artificial waterway. No tracer dye study was requested for the north terminus. Although there was some disagreement as to the import of the tracer dye study, it established that pollutants introduced into the Indian River from the canal would be rapidly dispersed in the Indian River. WATER QUALITY - THE CANAL The artificial waterway will be classified as Class III waters of the State. Water quality within the artificial waterway will reflect the current water quality in the Indian River. Petitioner has provided reasonable assurances that the water quality within the artificial waterway itself will not violate state standards. Two potential sources of pollutants to the artificial waterway have been identified. The first source is stormwater runoff through the stormwater management system associated with the upland development. The second is pollution inherent with the docking and operation of large vessels. Respondent interprets its rules so that discharge of pollutants into the artificial waterway will constitute indirect discharges to the Indian River. Because of the excellent flushing capacity of the canal, pollutants will not tend to accumulate in the canal. A pollutant entering the canal or a spill of pollutants into the canal will mix very little in the canal, probably less than five percent, so the pollutant will discharge from the canal into the Indian River as a plug. There was a conflict in the evidence as to whether pollutants introduced into the canal will enter the Indian River in measurable quantities. Testimony was elicited from Dr. Roessler, one of Petitioner's experts, that water entering the Indian River from the artificial waterway will not contain pollutants that are either measurably or statistically differentiable from the Indian River itself. That result depends, however, on the amount and the source of the pollutant introduced into the canal. Because of the rapid flushing of the canal, small spills or slowly released discharges of pollutants are not expected to result in water quality degradation in the Indian River. Since a pollutant introduced into the canal will exit in a plug essentially in the same concentration as it entered the canal, Petitioner has not provided reasonable assurances that large spills or discharges of pollutants from vessels or from other sources will not be discharged into the Indian River in concentrations that can be measured or that such large spills or discharges will not degrade the quality of the Indian River. Water from the canal will come out of both the north end and the south end of the canal. Some of the plume coming out of the north end may tend to hug the shoreline, with some of the plume reentering the canal when the tides change. Stormwater runoff contains significant amounts of fecal coliform, sometimes more than raw sewage. The stormwater management system associated with the upland development was permitted by the St. Johns Water Management District. The majority of the system is currently in place and functioning to retain stormwater runoff. The stormwater management system is designed to retain all of the first 4.75 inches of rainfall and most of the first 6.2 inches of rainfall. The design of this system exceeds the requirements imposed by the St. Johns Water Management District, which is that the first 1.5 inches of rainfall be retained. Stormwater management regulations are technology-based treatment criteria. If a system meets the retention requirement, it is presumed that no water quality will be violated by discharges through the system. Petitioner established that the stormwater management system was designed and constructed to retain at least three times the amount of rainfall required by the St. Johns Water Management District. Construction of the proposed canal will intercept two stormwater discharge pipes from the upland golf course and residential development. There was no evidence that the St. Johns Water Management System has reviewed this change in the system that has been permitted. The proposed change in where the outflow will be discharged could be significant since the discharge pipes are presently designed to discharge overflows from the system into wetland areas that provided additional natural treatment of the overflow before the overflow reaches the Indian River. With this change the overflow will be discharged during extraordinary storm events into the canal and thereafter into the Indian River without additional natural treatment. Because there will be modifications to the stormwater system the approval of that system by the St. Johns Water Management District should not be relied upon as providing reasonable assurances that no water quality violations will be caused by stormwater discharge. If this project is to be permitted, Petitioner should be required as a condition precedent to the issuance of the permit to have the proposed changes to the system reviewed by the St. Johns Water Management District and it should be required to obtain an amendment to the stormwater management system permit that would authorize the proposed changes. The project contemplates the construction of 62 docks. The size and the docking capacity of each dock has not been established. While Petitioner presented testimony that it is likely that only 50 percent of the docks will likely be used at any one time, that testimony is considered to be speculative. The number and size of boats that can or will be docked in the canal at any one time or on a regular basis is unknown. It is likely that each dock will have docking capacity for at least one vessel up to 60 feet in length and for a smaller vessel. The manner in which these docks will be constructed was not established. Chromatic copper arsenic, which is frequently used to coat docks and anti-fouling paints containing heavy metals used on boats are sources of contamination to shellfishing. Oils and greases from boats contain hydrocarbons which can adversely impact shellfish. These contaminants can have adverse impacts to shellfish at very low concentrations. Petitioner has agreed to prohibit live-aboard vessels and to prohibit the fueling and maintenance of vessels within the artificial waterway. Sewage containing fecal coliform dumped or spilled from boats or from stormwater discharge is a primary source of contamination for shellfishing waters. It is the practice of the Respondent's Shellfish Environmental Assessment Section to close waters to shellfishing in the vicinity of marinas, mainly due to potential contamination from untreated sewage. The Shellfish Environmental Assessment Section does not recommend the immediate closing of shellfishing waters when a project involves single family docks associated with a residence because it assumes people will use bathroom facilities in the house instead of on the boat. The Respondent does not have reasonable assurances that there will be houses associated with each of the 50 foot lots designated at the southern end of the canal. If a proposed facility has boat docks, but does not have houses associated with each dock, the Shellfish Environmental Assessment Section would recommend closure of shellfishing in the vicinity of the facility. The Shellfish Environmental Assessment Section would not recommend immediate closure of the shellfishing waters in the vicinity of this proposed project because it has assumed that each of the proposed docks will be associated with a house. If this project is to be permitted, reasonable assurances should be required that a residence will be constructed before or contemporaneously with the construction of a dock. The modifications made by Petitioner to the project will reduce the danger of pollutants from vessels in the artificial waterway. However, because the number and the size of the vessels that will be using the artificial waterway was not established, the extent of pollutants from vessels is unknown. Consequently, it is concluded that Petitioner did not provide reasonable assurances that measurable pollutants would not indirectly discharge into the Indian River from the canal. IMPACT ON WETLANDS Of the approximately 10.70 acres of wetlands that will be directly impacted by the proposed waterway, 4.10 acres are predominately impacted by invasive exotic (non-native) plants, 4.27 acres are somewhat impacted by exotic plants, and 2.23 acres are not impacted by exotic plants. The exotic plants found at the project site are primarily Australian Pine and Brazilian Pepper. The mitigation plan, which will be discussed below, proposes that the berms constructed around the mosquito impoundment area be removed and the rim ditches that abut the berms be filled. The amount of wetlands to be impacted by that activity was not established. The project contemplates that rotary ditches will be constructed at different places in the mosquito impoundment area after the berms are removed and the berm ditches filled. The areas to be impacted by the construction of the rotary ditches were not identified. The Petitioner proposes to dredge out the entire east end of Boot Lake for use as part of the canal. This area will be approximately 800 feet by 180 feet and will be 3.3 acres. Boot Lake is a fairly healthy biological system, about the same as the Indian River. It was found to contain 22 species of fish and seven species of birds, with brown pelican and the great blue heron dominant. Eleven species of crustacean, six species of mollusks, 24 vermes 4/ and one coelenterate were collected from the lake. Replacement of the eastern portion of Boot Lake with the canal will adversely impact those species. Between the Indian River and the proposed waterway is a mosquito impoundment constructed in the early 1960s. The mosquito impoundment and associated berms total approximately 105 acres. The exact area was not established since there is an unresolved issue as to the exact location of the mean high water line. 5/ The impoundment is breached in several locations and no longer functions efficiently as a mosquito impoundment. IMPACTS ON SEAGRASSES The excavation of the access channel from the south terminus to the Intercoastal Waterway will involve the removal of approximately 2500 square feet of a healthy, productive seagrass bed. Seagrasses are beneficial for wildlife habitat as they provide a substrate for algae and diatoms. Seagrasses are a direct food source for manatees and other species, and provide shelter and protection for fish. Seagrasses observed in this area where grasses will be eliminated are Halodule writtii, Syringodium filiforme, and Halophia johnsonii. Halophia, one of the identified species in this seagrass bed, is designated by the Florida Natural Areas Inventory as a rare and endangered species. Besides the seagrasses actually eliminated where the channel is to be constructed, other nearby seagrasses are also likely to be affected. The sides of the channel are likely to slough to some degree, which would adversely impact the seagrasses abutting the channel. The operation of power boats, even at slow speeds, will cause turbidity that will likely adversely impact seagrasses. Maintenance dredging, which will be required every few years, will cause turbidity that will likely adversely impact seagrasses. There are presently thousands of acres of seagrasses located within the Indian River. There has been a historical decline in seagrass in the Indian River Lagoon. Since 1950, there has been a 30 percent loss of seagrasses and seagrass habitat. IMPACTS ON SHELLFISH The proposed project will have an adverse impact on shellfish and shellfishing. At a minimum, the project will require dredging in a shellfishing area. The hydrological channel that will be dredged to connect the north terminus of the canal with the Intercoastal Waterway will be located in Class II waters that have been conditionally approved for shellfishing. Both commercial and recreational shellfishing occur in the Indian River adjacent to the project site. The predominate flow of water through the canal will be southerly. There will be, however, a predictable northerly flow of waters that will cause waters from the proposed canal and any associated contaminants contained in those waters to flow from the north terminus of the canal into the Class II waters that have been conditionally approved for shellfishing. The proposed project may introduce a significant amount of freshwater into the adjoining shellfishing waters of Indian River, primarily in the vicinity of the north terminus of the canal. Any additional freshwater discharges to shellfishing waters is a concern because fecal coliform bacteria survive longer in freshwater than saltwater. Three likely sources of freshwater that would be added by this project to the Indian River in the conditionally approved shellfishing area were identified by Respondent. First, the proposed canal appears to be intersecting near its north terminus with a sulphur spring or artesian well which produces fresh water with a high sulphur content. Fresh water will likely be introduced into the canal from this source and discharged into the shellfishing waters when the tidal flow becomes northward. Second, freshwater may be introduced into the canal from the overflow pipes from the surface water management system. This source of freshwater would not be significant. Third, additional freshwater may enter the area after the berms around the mosquito impoundment area are removed as contemplated by the mitigation plan. The extent of this source of freshwater was not established. If this project is permitted, the Shellfish Environmental Assessment Section will monitor this area for water quality to determine if the area will have to be closed for shellfishing. This additional monitoring, for which Respondent will pay, will be required because of the potential adverse impacts this project presents to shellfishing. Because of evidence of deteriorating water quality, the Shellfish Environmental Assessment Section is recommending that the shellfishing waters adjacent to the site be reclassified from "conditionally approved" to "conditionally restricted". In "conditionally restricted" waters, shellfish can still be harvested, but the harvested shellfish have to be placed in designated waters or in on-land facilities so the shellfish can cleanse themselves of fecal coliform before going to market. The conditions in the area of the proposed project are not yet bad enough to prohibit shellfishing. IMPACT ON MANATEES There are approximately 2,000 manatees living in Florida waters, with approximately 1,000 living on the east coast and approximately 1,000 living on the west coast. The manatee is an endangered species, and the long-term survival of the species is not secure. The Indian River in the area of the proposed project provides good habitat for manatees and is a major travel corridor for several hundred manatees. Indian River County is one of 13 key counties that has been designated by the Governor and Cabinet to address special manatee concerns. Manatees traveling back and forth in this area usually use the channel of the Intercoastal Waterway because it is deeper and allows manatees an easier travel route. Speed zones for boat traffic are an effective manatee protection mechanism. The artificial waterway will be posted as an idle speed zone. The area where the access channel connecting the south terminus of the canal with the Intercoastal Waterway will be dredged is presently designated as a slow speed zone and the access channel itself will be marked. Petitioner has agreed to implement Respondent's standard manatee conditions. Seagrasses are an important source of food for manatees. The project contemplates that 0.05 acres of seagrass will be dredged, but that Spartina will be planted in parts of the littoral zone. While manatees eat Spartina to some extent, they prefer seagrasses. Since there are thousands of acres of seagrass located in the Indian River, it is concluded that the elimination of 0.05 acres of seagrass associated with this project is negligible and will not adversely affect manatees. A barrier to navigation will be maintained at the north terminus of the waterway to preclude boat access and limit access to the waterway by manatees. Manatees would be unable to enter or leave the artificial waterway via the north terminus. The artificial waterway will not attract manatees and should not, in and of itself, adversely impact manatees. The main adverse impact to manatees from this proposed project is the threat of collisions by boats that leave the canal and enter the waters of the Indian River, including the Intercoastal Waterway. At least ten West Indian manatees have been killed by boats in Indian River County since 1981. Even with the speed limits, the increase in boating in this area will present an increased risk to manatees. IMPACT ON BIRDS No species of wading birds, including those listed as endangered or threatened, nests or roosts within the project site. The project site is not currently heavily utilized by wading birds, but several species of wading birds were observed foraging for food in Boot Lake. It is reasonable to expect that dredging of Boot Lake and the increased boat traffic will have an adverse impact on birds. Diving birds, such as the brown pelican and least tern, will benefit from the increased open waterway created by the canal, which should serve as a feeding habitat. Wading birds congregate and nest in rookeries. The area of the proposed project is within the foraging range of 14 active rookeries, and it is reasonable to expect that those rookeries will be disturbed by the increased boat use or human activity that the project will bring to this area. Officials of Pelican Island National Wildlife Refuge have observed such disturbances and are opposed to this project. The pressure of human and boating activities on bird rookeries in the Pelican Island National Wildlife Refuge, including human intrusion into buffer zones established to protect the birds, has resulted in a continuing decline of the bird population since 1960. When disturbed by boats or by humans, the parent wading bird will often leave the nest, which exposes the eggs or the chicks to attack by predators or to overexposure to sunlight. Boaters will often cause wading birds who are foraging for food to flush, which disturbs their search for food. Certain species of wading birds are flushed more frequently and for longer distances when flushed from narrow tidal creeks in Spartina marshes (a habitat similar to the proposed canal) than in open shoreline habitat. IMPACT ON FISH The existing ditches inside the mosquito impoundment berms presently provide a habitat similar to that of a tidal creek for a variety of fish, including juvenile snook, tarpon, red drum, black drum, lady fish, and mullet. The proposed project will result in the filling of these habitats and impoundments. As a consequence of that activity, these species of fish will be adversely impacted by the project. Although Petitioner proposes to construct certain rotary ditches that it asserts would provide a habitat similar to that provided by the existing ditches, Petitioner has not submitted any plans or drawings or other specific information concerning these rotary ditches and has not provided reasonable assurances that these proposed rotary will replace the habitat that will be eliminated by the filling of the existing ditches. CUMULATIVE IMPACTS Other projects have been permitted on the Indian River north and south of the proposed project that have increased boat traffic on the Indian River in the vicinity of the project. The Respondent has not identified any similar projects which have been permitted in the vicinity within the last five years. The only similar application pending before the Respondent in the vicinity of the project is for two docks north of the project site. Although Respondent established that boat traffic on the Indian River has increased, this project is unique in scope and design, and it is concluded that Petitioner has given reasonable assurances that no negative cumulative impacts will be associated with the project. OTHER PERMITTING CRITERIA The parties stipulated to the following facts that pertain to permitting criteria: The project will not adversely affect navigation or the flow of water. The project will not cause harmful erosion or shoaling. The project will be of a permanent nature. The project will not adversely affect any significant historical or archaeological resources. The project will not adversely affect the property of others. The proposed waterway will be located almost entirely on private property in areas not currently utilized for fishing or other recreational activities. Except for the impacts on shellfishing, birds, and fish discussed above, the project will not adversely affect the fishing or recreational values within the vicinity of the project. THE MITIGATION PLAN Petitioner has taken all reasonable steps to minimize the adverse impacts associated with the type project it is proposing. Because there will be adverse impacts to an Outstanding Florida Water, the project can be permitted only if it is determined that the mitigation plan offsets the adverse impacts and makes the project clearly in the public interest. Petitioner's mitigation plan was contained in the original application and was revised between October 1991 and January 1992. Respondent considered the current mitigation plan in its review of this project. The current mitigation plan consists of the creation of wetlands, the enhancement of wetlands, and the preservation and donation of wetlands owned by Petitioner within the mosquito impoundment. The estimated cost of creation and enhancement of the mitigation plan is $600,000. Petitioner proposes to create approximately 14 acres of wetlands by removing the mosquito impoundment berms and converting other uplands within the impoundment to wetlands. These areas will be revegetated with various wetland plant species including red, black, and white mangroves. In addition, Petitioner proposes to create a forty foot wide intertidal littoral zone along the entire length of the western side of the artificial waterway and a ten foot wide littoral zone along the entire eastern side of the artificial waterway. Approximately three acres of the littoral zone will be created from uplands. The littoral zone will be revegetated with 80 percent cord grass and 20 percent red mangrove. Petitioner proposes to implement an open marsh mosquito control management program consisting of the elimination of natural accumulations of water in low lying areas within the impoundment by rotary ditching small channels to allow these areas to drain and to allow predator fish access to the areas. Petitioner will remove exotic plant species throughout the impoundment and will revegetate with native species such as red, black, and white mangroves. Petitioner proposes to monitor the project area to assure that exotic plant species do not re-colonize. The mosquito impoundment area and the associated berms is estimated as being approximately 105 acres. Because of the difficulty in determining the mean high water line and because of the number of breaches in the berms, the precise acreage within the impoundment area that is not currently sovereign lands was not established. If accurately surveyed, it is possible that the amount of acreage within the impoundment owned by Petitioner may be determined to be up to 10 percent less than is currently estimated. For the purposes of this proceeding, it is found that 105 acres is a reasonable estimate of the area of the impoundment owned by Petitioner. After completion of the enhancement program, Petitioner proposes to donate all the property it owns within the impoundment to the State of Florida. Petitioner asserts that it would have the right to construct single family docks from its property directly into the Indian River if this project is not permitted and that these docks would not be subject to Respondent's permitting jurisdiction. The construction of such docks would have an adverse impact on manatees and seagrasses. As part of its mitigation plan, Petitioner offers to waive its right to construct single family docks from its property directly into the Indian River. EVALUATION OF THE MITIGATION PLAN The wetland in the existing impoundment area is presently a good biological system that contains a good diversity of plants and animals. While Petitioner's proposals will enhance this area, the evaluation of that enhancement should take into consideration the quality of the existing system. There are at least three existing breaches in the berm system. Through these breaches there is some tidal influences and the export of detrital material. Because of the relatively isolated nature of the mosquito impoundment, it currently contributes little to the productivity of the Indian River. The removal of the berm system will result in greater tidal influence in the impoundment area. As a consequence, much of the leaf litter from mangroves within the impoundment that presently accumulates on site would be exported as detrital material to the Indian River, which will add material to the food chain. It is expected that increased tidal influence will also result in an improvement in the dissolved oxygen levels within the impoundment. The reestablishment of tidal influence within the impoundment area will increase habitat for fish, shrimp, and crabs, and therefore benefit the Indian River. Removal of the impoundment berms to reestablish tidal influences within the impoundment area will increase and improve feeding and forage habitat for wading birds. Consequently, wading birds that nest in the vicinity of the project will be benefited. Increased tidal influence will likely result in better growth for mangroves which would create roosting sites for wading birds where none presently exist. Currently, Australian pines are the dominate species in areas within the impoundment area. Other areas of the impoundment are heavily populated by Brazilian pepper. Australian pines and Brazilian peppers do not serve as food sources for any native wildlife and have the potential to crowd out native plant species such as mangroves. If not removed, the potential exists for Brazilian pepper to become the dominate plant species. Removal of exotics and replanting with native species is a benefit to the Indian River system. With an appropriate monitoring plan, the exotic removal should be successful. If the project is permitted, the implementation of an appropriate monitoring plan should be a condition of the permit. Because of widespread mosquito control activities, the high marsh ecosystem is now rare in the Indian River system. The restoration of the impoundment area to an area of high marsh would be of benefit to the Indian River ecosystem. Prior to alteration by man, the mosquito impoundment was a high marsh ecosystem consisting primarily of black and white mangroves over an understory of succulent plants. There was a conflict in the evidence as to whether the Petitioner's proposals would result in the impoundment area returning to a high marsh area. While the impoundment area will be enhanced by the Petitioner's proposals, it is found that whether the area will be returned to a high marsh system is speculative. The mosquito impoundment is breached in various locations and, as a consequence, the impoundment is not functioning to control mosquitoes as it was originally designed. The current primary mechanism for mosquito control within the breached mosquito impoundment is aerial spraying of insecticides. The proposed removal of the existing berms will not adversely affect mosquito control and may positively affect mosquito control due to the increased accessibility of the impoundment by natural predators such as fish. This open marsh management plan is an effective means of controlling mosquitoes. The wetland creation proposed by Petitioner should have a high rate of success. Petitioner has agreed to implement a suitable monitoring plan to further guarantee the success of the proposal. If the project is permitted, the implementation of a suitable monitoring plan should be a condition of the permit. Scraping down the mosquito berms will create more wetlands, but the earth from the berms will be placed in the adjacent ditches, which presently serve as valuable tidal creek type habitat. Therefore, the mitigation itself will have some adverse impact. Petitioner's unspecified proposal to put in some rotary ditches to offset the loss of tidal creek habitat is inadequate in that there has been no specific proposal as to the location, size, shape, configuration, or acreage of the proposed rotary ditches. While planting of the littoral zones on the edges of the canal with Spartina provides some biological value, the growth of Spartina on the ten foot ledge on the east side will be impacted by boats and docks. The littoral zones will likely perform valuable wetland functions if properly planted and monitored and will likely become a productive wetland system that will provide habitat for wading birds. If the project is permitted, the Petitioner should be required to monitor the Spartina planting to ensure its successful growth. Even if the creation of the 13.9 acres of wetlands is successful, it will take years to become a mature biological system similar to the wetlands they are to replace. This time lag should be taken into account when evaluating the mitigation plan. There are adverse impacts from this proposed project that the mitigation plan does not offset. The mitigation plan does not offset the elimination of seagrasses, the loss of the Boot Lake habitat, the potential adverse impacts to shellfish and shellfishing, or the impacts to manatees. It is likely that property owners wishing to construct docks directly into the Indian River would have to get a permit from Respondent to gain access to the parts of the property where these docks could be constructed. Any proposal to extend docks into the Pelican Island National Wildlife Refuge would likely be prevented by the U.S. Fish and Wildlife Service. Whether such docks would, or could, be constructed is speculative, and this portion of the mitigation plan should be accorded little weight. As part of its mitigation plan, Petitioner proposes to donate approximately 105 acres to the State of Florida. This is considered to be a favorable aspect of the mitigation plan. The central issue in this proceeding is whether the mitigation plan offsets the negative impacts of this project so that the project becomes "clearly in the public interest." This issue is resolved by finding that even when the mitigation plan and the conditions that are recommended herein are considered, this project is "not clearly in the public interest."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order that adopts the findings of fact and conclusions of law contained herein and which denies the modified application for the subject project. DONE AND ENTERED this 31st day of August 1994, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 31st day of August, 1994.
Findings Of Fact The Petitioner owns property which fronts on Lake Serena in Putnam County, Florida. Petitioner has submitted an application to the Respondent to dredge an area waterward of the ordinary high water line of Lake Serena and to place the dredged material on another area waterward of the ordinary high water line. Approximately 13,000 square feet of surface area presently dominated by wetlands vegetation would be removed by the dredging activity. The Petitioner proposes to cover the area where the fill is deposited with white sand. Petitioner proposes to use the area as a sandy swimming beach. During the summer of 1976 the Petitioner commenced work on his proposed project without receiving a permit from the Respondent. The Respondent, through its agents, stopped the work, and this permit application proceeding ensued. Lake Serena is a relatively pollution-free lake. Most of the littoral or transitional zone Vegetation surrounding the lake has been replaced by sandy swimming beaches. Only approximately forty percent of the shoreline is an aquatic vegetated littoral zone. Aquatic vegetation in the littoral zone surrounding the lake serves an important and natural function in preserving the water quality of the lake, and the natural resources of the lake including fish and wildlife. The aquatic vegetation serves to filter runoff from uplands areas by assimilating nutrients that are in the runoff. Lake Serena is an oligotrophic lake. It is relatively low in nutrients. Aquatic vegetation in the littoral zone serves in part to maintain this condition. If the condition is not maintained the buildup of nutrients would cause an algae bloom, or buildup of algae plants on top of the lake. A buildup of algae on the lake would drastically decrease the oxygen levels of the lake. The algae itself uses oxygen. The algae also kills oxygen producing plants which thrive on the bottom of the lake because the algae cuts off light to these plants. As the algae dies, it sinks and decomposes and uses up more oxygen. An algae bloom of this sort, and the resulting diminishing of oxygen levels in the lake would constitute pollution. Removal of aquatic plants in the lake's littoral zone will also serve to diminish fish populations in the lake. Small fish use such an area as a nursery ground where they can hide from larger predators. The action of aquatic plants on nutrients also serves as an initial step in the food chain for fish. The littoral zone which the Petitioner proposes to dredge and fill is apparently not in its natural state. There was no direct testimony respecting past dredging activity, but there was hearsay testimony to the effect that a previous land owner had dredged what amounts to a sand bar to serve as a boat slip. The entire area is now dominated by aquatic vegetation. It is a viable part of the littoral zone of the lake, and serves the beneficial purposes set out in Paragraph 2 above. There was no evidence offered at the hearing from which it could be determined with any degree of certainty that the Petitioner's proposed project would have any finitely measurable impact upon water quality or wildlife resources in Lake Serena. Removal of all such littoral zones would, however, drastically change the ecology of the lake, and render it polluted. Sixty percent of the lake's shoreline has already been denuded of vegetation. Although it cannot be determined how much more such action the lake will tolerate, it is clear that there is a limit. If the Petitioner's project were granted, other similar projects would also be justified. Inevitably the lake's oligotrophic nature would be destroyed. While it cannot be concluded from the evidence that the Petitioner's project would have any precisely measurable effect upon water quality and upon the natural resources of Lake Serena, it can be determined that the only effect the project could have would be negative. Petitioner has not established that the project would not have an adverse impact upon water quality and natural resources of Lake Serena. Petitioner has apparently concluded that there is no other means for him to have a swimming beach on his property than through the project as he has proposed it. Other witnesses testified, however, that his property includes a site for a swimming beach on land that is not dominated by aquatic vegetation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That a final order be entered denying the Petitioner's application for dredge and fill permit. RECOMMENDED this 8th day of April, 1977 in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John Mussoline, Esquire CLARK & MUSSOLINE 501 St. Johns Avenue Palatka, Florida 32077 Vance W. Kidder, Esquire Department of Environmental Regulation 2562 Executive Center Circle East Montgomery Building Tallahassee, Florida 32301 Mr. Jay Landers, Secretary Department of Environmental Regulation 2562 Executive Center Circle East Montgomery Building Tallahassee, Florida 32301
Findings Of Fact Mr. Mills owns a 105 acre tract of land on which he raises cattle. This land is directly east of South Bull Pond in Putnam County, Florida. The land which he proposes to fill lies within the landward extent of South Bull Pond. The pond is a natural lake of approximately 350 acres which does not become dry each year. The lake has a maximum average depth of greater than 2 feet throughout the year. Its shoreline is owned by more than one person. South Bull Pond is a Class III water of the State of Florida. Petitioner's proposed project involves the excavation of approximately 5,000 cubic yards of sand and muck from the lake bottom. He plans to place the fill in an area adjacent to the dredge site but within the landward extent of the lake. The area to be excavated is 200 feet long and 50 feet wide. The area to be filled with spoil material is the same size immediately to the east of the dredge area. The excavation will be approximately three feet deep into the lake bottom. Mr. Mills' application indicates that the purpose of the proposed work is to keep his cows out of the bog and also to increase the value of his property. The proposed dredging and filling will result in the permanent elimination of approximately one-half acre of natural vegetation along the lake. This area consists of a natural berm formed by alluvial deposits and a wet bog landward of the berm. There is an opening through the berm which allows the free exchange of waters between the main body of the lake and the bog area. The top elevation of the berm is such that the berm area is submerged for long periods of time. Ordinary high water inundates the berm and passes over it into the bog which is at a lower elevation than the berm. The field appraisal of the proposed site was conducted by Mr. John Hendrix, a Department biologist, on May 5, 1981. The site consists of three areas: the lakeshore, the berm, and the bog. The dominate species along the lakeshore are Saw grass (Cladium jamaicensis), Water Lily (Nymphaea spp.), Pickerelweed (Pontederia lanceolata), and Spatter dock (Nuphar spp.). The dominant fresh water species on the berm are: Saw grass (Cladium jamaicensis), and Arrowhead (Sagittaria spp.). Two transitional fresh water species also grow on the berm: St. John's wort (Hypericum fasciculatum) and Button bush (Cephalanthus occidentalis). The dominant species of the bog, which is landward of the berm, are Water Lily (nymphaea spp.), Water shield (Brasenia schreberi), Royal fern (Osmunda regalis), and Arrowhead (Sagittaria spp.). The lake is presently mesotrophic. It has a large productive vegetative structure primarily along the shoreline. The nutrients are "tied up" or stored in the marshes and peaty sediments of this shoreline and are not freely circulating in the main water body. The shoreline vegetation provides filtration for the main water body. The plants physically entrap sediments and biochemically assimilate them. They also store nutrients which otherwise degrade the water in the lake. The proposed dredging and filling will degrade water quality in two ways: 1) The equipment used for dredging will disrupt the sediments. They will then discharge freely into the water column of the lake and release their stored nutrients. 2) The berm and bog areas will be destroyed so that they can no longer stabilize the shoreline or provide the filtration function. Adverse water quality impacts from the project will be both short and long term. The short terms impacts include expected violations of the following water quality criteria found in Chapter 17-3, Florida Administrative Code: BOD; dissolved oxygen; transparency; biological integrity; turbidity; pH; nuisance species; and both nutrients criteria. The long term impacts will include stimulation of shifting of the natural balance of the lake towards a more eutrophic state and violation of the water quality criteria for nutrients, dissolved oxygen, BOD and transparency. Petitioner wants to fill the bog to prevent injury to his cows. A workable alternative to filling the bog is to erect a fence across the property to exclude the cows from that area. The drawings submitted by Petitioner as part of his application show that the operation of the dredging machinery would be from the berm. During the hearing Petitioner indicated that such machinery would be operating from the lakeshore. This modification would create fewer short term violations of water quality criteria. However, the following criteria would still be violated: BOD, turbidity, nuisance species, biological integrity, dissolved oxygen, transparency and nutrients.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Regulation enter a final order denying Petitioner's permit application. DONE AND ENTERED this 14th day of October 1981 in Tallahassee, Florida. MICHAEL PEARCE DODSON 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 October 1981. COPIES FURNISHED: Jimmie L. Mills Route 2, Box 244 Hawthorne, Florida 32640 Silvia Morell Alderman, Esquire Cynthia K. Christen, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact By application dated August 28, 1984, Petitioner sought a permit from Respondent to deepen an existing ditch on his property from a current depth of one and a half feet to a proposed depth of three feet. The ditch is eight feet wide and eight hundred and fifty feet long and extends through a wetlands area to Lake Tohopekaliga which has been classified as a Class III waterbody. Petitioner intends to dredge approximately 377 cubic yards of material waterward of the ordinary high water elevation in order to make the existing storm drainage ditch navigable. This application was received by Respondent on September 11, 1984, and was accepted as complete on November 6, 1984. On January 9, 1985, an on-site inspection was concluded by Barbara Bess supervisor of dredge and fill permitting in Respondent's Orlando district office, who thereafter prepared an appraisal report dated January 23, 1985. As expressed in her report, Bess' primary concern with this application was the potential loss of fish and wildlife habitat which would result from the loss of grasses and macro-invertebrates resulting from the proposed project. Lake Tohopekaliga is a very popular and productive sportfishing lake, and the cumulative effect of such dredging activity, if it occurred around the lake would have a severely negative impact on the lake's food chain. This would in turn have adverse consequences for sportfishing and the water quality of the lake. Since similar drainage ditches do exist around the entire lake, there is a reasonable likelihood of similar projects occurring if this one is approved. Petitioner proposes that his dredging take place during a draw-down of Lake Tohopekaliga which has already been planned, and contends that the negative impact of the proposed deepening will be minimized since the ditch will be substantially dry during the draw-down. Petitioner's contention, however, is not supported by the evidence. Testimony from Barbara Bess, who was accepted as an expert on water quality standards and the biological impact of construction projects on water quality, and testimony from Ed Moyer, fisheries biologist with the Game and Fresh Water Fish Commission, established that Petitioner's ditch may not be completely dry during the draw-down, and that the proposed deepening will increase boat traffic due to the ditch's navigability, thereby reducing vegetation and harming the food chain in the immediate area of the ditch. The cumulative effect of similar projects occurring, even during the draw-down, will be negative for sportfishing and the water quality of the lake. Respondent issued its Intent to Deny on January 25,1985, in response to which Petitioner timely sought a hearing. The parties were allowed to submit proposed findings of fact and conclusions of law pursuant to Section 120.57(1)(b)4, F.S. A ruling on each proposed finding has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial, or unnecessary.
Recommendation Based on the foregoing, it is recommended that Respondent enter a Final Order denying Petitioner's permit application. DONE and ENTERED this 23rd day of May, 1985, at Tallahassee, Florida. DONALD D. CONN 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 23rd day of May, 1985. COPIES FURNISHED: Ross Gwin 1731 Juniper Circle St. Cloud, Florida 32769 Ron Cray 1731 Juniper Circle St. Cloud, Florida 32769 B. J. Owens, Esquire Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blairstone Road Tallahassee, Florida 32301
The Issue This case involves a challenge to St. Johns River Water Management District’s (District or SJRWMD) intended issuance of an Environmental Resource Permit (ERP) granting the City's Application No. 4-127-97380-1, for the construction and operation of a surface water management system for a retrofit flood-relief project known as Drysdale Drive/Chapel Drive Drainage Improvements consisting of: excavation of the Drysdale Drive pond (Pond 1); improvement to the outfall at Sterling Lake; and the interconnection of Pond 1 and four existing drainage retention areas through a combination of pump stations and gravity outfalls (project or system). The issue is whether the applicant, the City of Deltona (City or Deltona), has provided reasonable assurance the system complies with the water quantity, environmental, and water quality criteria of the District’s ERP regulations set forth in Chapter 40C-4, Florida Administrative Code,1 and the Applicant’s Handbook: Management and Storage of Surface Waters (2005) (A.H.).2
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order issuing to the City of Deltona an ERP granting the City's Application No. 4-127-97380-1, subject to the conditions set forth in the Technical Staff Report. DONE AND ENTERED this 17th day of March, 2006, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 2006.
Findings Of Fact Respondent William O. Reynolds filed with Respondent Department of Environmental Regulation an application to construct a weedgate and fence at the mouth of a dead-end canal in Atlantis Estates Subdivision located on Big Pine Key in Monroe County, Florida. When the Department noticed its intent to issue a dredge and fill permit to Reynolds, Petitioner James A. Abbanat filed his objection. That cause was referred to the Division of Administrative Hearings for conduct of a formal hearing and was assigned DOAH Case No. 84-1508. On March 8, 1985, a Recommended Order was entered in that cause find in, inter alia, that the proposed project would be constructed in Class III waters of the State (Outstanding Florida Waters), that the weedgate and fence should cause no state water quality violations and should not unreasonably interfere with navigation, that they should actually improve water quality and navigation within the canal and should not significantly decrease water quality outside of the canal, that the project would not be contrary to the public interest, and that the applicant had provided reasonable assurances that the project would not violate Department standards, rules, or applicable statutes. Although the permit application was not certified by a professional engineer registered in the state of Florida, the Recommended Order concluded that that technical deficiency should not form the basis for denying the permit but rather that the permit should be granted with conditions. On April 22, 1985, a Final Order was issued adopting the Recommended Order but denying the permit application solely due to the lack of certification of the permit application by a professional engineer registered in the state of Florida. Despite the denial of his application for a permit, Respondent William O. Reynolds caused to be constructed a weedgate and fence. At some undisclosed time Reynolds did, however, submit to the Department of Environmental Regulation a set of drawings for the fence and weedgate. Although the drawing for the weedgate as built was certified by a professional engineer registered in the State of Florida, no fence drawing was so certified and the fence as built was located differently than the fence as shown in the drawings. The drawings showed a fence extending from the weedgate through the cove at the entrance to the canal for a distance of 200 feet, while the fence as installed is 100 feet in length and is located within the canal itself. On August 19, 1986, Respondents entered into a consent order acknowledging the prior denial of Reynolds" application due to lack of certification of the permit application, reciting that certification had been obtained, and authorizing the project. Interested persons were not notified of the entry of the consent order. Accordingly, when Petitioner Abbanat learned of its existence and filed his objection to the entry of that consent order, the Department of Environmental Regulation afforded the required point of entry into administrative proceedings and referred the matter to the Division of Administrative Hearings for the conduct of a formal hearing. That objection initiated this cause. The weedgate as built is in substantial accord with the plans submitted to the Department by Reynolds and certified by Joel Rosenblatt, a professional engineer registered in the state of Florida. The design, location, and size of the weedgate as built is substantially similar to that proposed in DOAH Case No. 84-1508. The weedgate as built has the same system of cables and weights and is supported by support posts on each side. As built, the weedgate opens in the middle to permit unimpeded ingress and egress of boats. The weedgate causes neither interruption of water flow nor erosion. The effect of the weedgate as built on state water quality standards is the same as the effect determined in DOAH Case No. 84-1508, i.e., the presence of the weedgate causes no water quality violation either in the canal or in the water just outside the gate and fence. The presence of windblown wrack in the canal was the major cause of state water quality violations. The sole purpose of the gate and fence is to prevent wrack from entering the canal and decaying there causing lowered dissolved oxygen levels and anoxic and/or anaerobic conditions. There has been little or no wrack in the canal since the weedgate and fence were installed, and the weedgate and fence are beneficial to and appear to have improved the water quality in the canal. The 200-foot fence across the cove at the mouth at the canal shown in the drawings submitted to the Department of Environmental Regulation does not exist since it has been prohibited by the Department of Natural Resources. Instead, Reynolds constructed a 100-foot fence perpendicular to the north side of the weedgate and joined to the rip-rap on the north side of the canal which forms the south edge of the cove. The fence as built prevents wrack from being blown around the gate into the canal, does not affect the water quality in the canal or in the cove, and does not interfere with navigation. The cove itself collects wrack to some degree under natural conditions and without the fence to the south of it because all discontinuities on the Florida Keys eastern coastline tend to trap windblown wrack until it is moved elsewhere by wind or current. The cove does collect more wrack since the fence was installed than it did before the fence was installed; however, estimating the amount would be speculative. Although Petitioner's lot adjoins the canal, it does not adjoin the cove. The owner of the property which does adjoin the cove favors the existing weedgate and fence. The placement of the weedgate and fence does not interfere with navigation in or out of the canal. It is a policy of the Department of Environmental Regulation to issue a consent order for a project if the project has already been built and is of such design and quality that the Department would be able to issue a permit for it had a proper permit application been filed. The weedgate and the fence are of such design and quality that the Department would be able to issue a permit had Reynolds resubmitted his application showing the revised location of the fence and if the drawings were certified by a professional engineer. It was determined in DOAH Case No. 84-1508 that the project was not contrary to the public interest. Since that time the standard has changed from "not contrary to the public interest" to "in the public interest." Although the Department presented only conclusory evidence that it had received reasonable assurances that the public interest standard is met by the project as built, Petitioner allowed that evidence to stand uncontroverted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered approving the consent order signed by the Department of Environmental Regulation and William O. Reynolds on August 19, 1985, and ratifying the conditions contained therein. DONE and RECOMMENDED this 21st day of January 1987, at Tallahassee, Florida. LINDA M. RIGOT, 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 21st day of January 1987. APPENDIX DOAH CASE NO. 86-1091 The Department of Environmental Regulation's proposed findings of fact numbered 1, the first two sentences of 2, 3-5, 10-12, 14-17, 19, and 20 have been adopted either verbatim or in substance in this Recommended Order. The remainder of the Department of Environmental Regulation's proposed findings of fact have been rejected as follows: the third sentence of 2 as not being a finding of fact; the first two sentences of 9 as being unnecessary; the last two sentences of 9 as not being supported by the record; and 13 and 15 as being irrelevant to the issues herein. Respondent Reynolds' proposed findings of fact numbered 1, 5, and 6 have been adopted in this Recommended Order either verbatim or in substance. The remainder of Reynolds' proposed findings of fact have been rejected as follows: 2-4 and 5 as being unnecessary for determination herein, and 7 as being not supported by the record in this cause. Petitioner's proposed finding of fact numbered 5 and the first sentence of number 4 have been adopted in this Recommended Order either verbatim or in substance. The remainder of Petitioner's proposed findings of fact have been rejected as follows: 1 and 2 as being unnecessary; 3 and 6 as not being supported by the record in this cause; 5 and 10 as being contrary to the weight of the credible evidence; and 7 and the second and third sentences of 4 as not constituting findings of fact. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 James A. Abbanat 5561 S.W. 3rd Court Plantation, Florida 33317 William O. Reynolds Route 1, Box 661-E Big Pine Key, Florida 33043 Douglas H. MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 =================================================================
