The Issue The issue is whether Bayou Arbors, Inc. (Arbors), is entitled to a dredge and fill permit to construct docks in DeBary Bayou, Volusia County, Florida.
Findings Of Fact On January 8, 1986, DER received an application from Arboretum, a predecessor in interest of Arbors, to construct 12,758 square feet of docks in DeBary Bayou to provide ninety eight (98) boat slips, and to dredge 2,509 cubic yards of shoreline material from DeBary Bayou in areas within DER's jurisdiction under the proposed boat docks, and to place approximately 800 linear feet of concrete riprap along the shoreline after it was dredged. Following the initial application review process, which included on- site evaluations by several DER biologists, on April 14, 1986, DER prepared a Biological and Water Quality Assessment in which DER's staff recommended that the project be modified to delete the dredging, allowing the littoral zone to remain intact. On April 24, 1986, DER forwarded its Biological and Water Quality Assessment to Mr. Charles Gray, the property owner. In response to DER's recommendations, the Applicant submitted, and on April 30, 1986, DER received, a revised Application which deleted the originally-proposed shoreline dredging of 2,509 cubic yards of material as well as the placing of 800 linear feet of concrete riprap. This Application was submitted by Mr. Duy Dao, a Professional Engineer registered in the State of Florida. This Application proposed constructing approximately 17,000 square feet of docking facilities, providing ninety-eight boat slips, along approximately 2,580 linear feet of shoreline adjacent to twenty-four acres of uplands owned by the Applicant. The original and the revised drawings omitted a vertical scale from the cross-section drawings of the project. This omission gave the impression that the shoreline bank of DeBary Bayou was steeper than it actually is and that the water depths in DeBary Bayou adjacent to the north shoreline are deeper than they actually are. However, DER's biologists were on-site four times between February 25, 1986, and May 19, 1986. They observed the existing slope of the DeBary Bayou shoreline and the existing depths in DeBary Bayou, and the on-site observations negated the effect of the omission in the drawings. The omission in the drawings did not affect DER's evaluation of the project. On May 23, 1986, DER issued its Intent to Issue and Draft Permit No. 64-114399-4 to Arboretum. The Intent to Issue and the Draft Permit include the following Specific Conditions: Further construction on the Applicant's property along the DeBary Bayou shall be limited to uplands; Issuance of this permit does not infer the issuance of a permit for dredging in the Bayou at a future date, should an application for dredging be submitted; A deed restriction shall be placed on the condominium limiting boats moored at the facility to seventeen feet or less. A copy of the deed restriction shall be submitted to the Department within sixty days of issuance of this permit; There shall be no "wet" (on-board) repair of boats or motors at this facility; All boats moored at the dock shall be for the use of residents of the condominium only. Public use of the dock or rental or sale of mooring slips to non-residents of the condominium is prohibited; Manatee warning signs shall be placed at 100 foot intervals along the length of the dock(s); Turbidity shall be controlled during construction (by the use of siltation barriers) to prevent violations of Rule 17-3.061(2)(r), Florida Administrative Code. On June 29, 1987, Volusia County, DER and Arboretum entered into a "Joint Stipulation for Settlement" wherein Arboretum agreed not to construct more than twenty-six docks accommodating more than fifty-two boat slips along Arboretum's DeBary Bayou frontage of 2,580 feet. Furthermore, Arboretum agreed that it would modify the configuration and the design of the boat slips and the location of the boat docks; that it would post Slow Speed, No Wake zone signs and manatee education signs along DeBary Bayou from the 1-4 bridge west to a point 100 feet west of the western boundary of Arboretum's boat docks; and that as mitigation for the removal of vegetation from the littoral zone where the boat slips would be constructed, Arboretum would plant wetland hardwood trees. In addition to the Joint Stipulation for Settlement, on June 14, 1987, the property owners, Charles Gray and Sandra Gray, as part of their agreement with Volusia County, executed a "Declaration of Covenants, Conditions, and Restrictions" to which the Joint Stipulation for Settlement was attached as an exhibit. Said Declaration of Covenants, Conditions, and Restrictions, reiterated the Joint Stipulation's limitation of construction of boat docks in DeBary Bayou and further provided that said boat docks would not be constructed at the Arboretum project site in DeBary Bayou unless and until certain maintenance dredging set forth in Article II of the Declaration of Covenants, Conditions, and Restrictions occurred. Furthermore, Article III of said Declaration of Covenants, Conditions and Restrictions set forth certain prohibitions regarding constructing boat ramps on the Arboretum property and docking or storing boats along the DeBary Bayou shoreline except at the site of the proposed docks. In 1969, an artificial channel was excavated in DeBary Bayou adjacent to the north shoreline of DeBary Bayou by a dragline operating along the shoreline. At present, said channel has been partially filled by organic sediments originating in DeBary Bayou. There exists in Section 403.813(2)(f), Florida Statutes, an exemption from the DER's permitting requirements for the performance of maintenance dredging of existing man-made channels where the maintenance dredging complies with the statutory provisions and with the regulatory provisions found in Florida Administrative Code Rule 17-4.040(9)(d). The dragline excavation work performed in DeBary Bayou in 1969 created a structure which conforms to the definition of "channel" provided in Section 403.803(3), Florida Statutes. The maintenance dredging required by the Declaration of Covenants, Conditions, and Restrictions is to be performed by suction vacuuming of the silt sediment, from the 1969 channel and that dredged material is to be placed on Arbors' upland property at the project site. This maintenance dredging differs from the dredging originally proposed by the applicant in its application submitted in January 1986. The dredging originally proposed, which DER recommended against, was to be performed by back hoes and drag-lines which would have cut into the north shoreline of DeBary Bayou and would have affected the littoral zone along the project shoreline. The average water level in Lake Monroe and DeBary Bayou is approximately 1.8 feet above mean sea level. On April 18, 1987, transact studies in DeBary Bayou showed water levels at 3.2 feet above mean sea level and that water depths in DeBary Bayou to a hard sand/fragmented shell bottom ranged from approximately one foot along the south shoreline to approximately nine feet in deep areas in the former channel. The average depth of the channel is five feet below mean sea level. The water depth in DeBary Bayou ranges from approximately one to three feet. At times of average water levels, one to three feet of silt or unconsolidated sediment overburden covers the natural hard sand/shell bottom of DeBary Bayou. This silt and sediment overburden is composed of organic material and is easily disturbed. When it is disturbed, it raises levels of turbidity, although there was no evidence presented that the turbidity would violate state water quality standards. This silt and sediment overburden has been deposited at a faster rate than it would normally be deposited under natural conditions because of the Army Corps of Engineers' herbicidal spraying of floating plants in DeBary Bayou. As this silt and sediment overburden decomposes, it takes oxygen from the water. The presence of a strong odor of hydrogen sulfide indicates that the oxygen demand created by the sediment is greater than the available supply of oxygen at the sediment-water interface. This unconsolidated silt and sediment overburden does not appear to harbor either submerged vegetation or significant macroinvertebrate populations. The Shannon/Weaver diversity index of benthic macroinvertebrates at four locations in DeBary Bayou indicated lowest diversity at the project site and highest diversity at the 1-4 overpass, where a small patch of eel grass is growing. Removal of this silt and sediment overburden from the 1969 channel will enhance the system, enabling a hard bottom to be established, with a probability of subsequent establishment of a diversity of submerged macrophytes. Removal of the silt and sediment overburden from the 1969 channel will restore the natural hard sand/fragmented shell bottom in that area of DeBary Bayou. It is unlikely that boat traffic in the restored channel will cause turbidity which will violate state water quality standards. Removal of this silt and sediment overburden will improve water quality in DeBary Bayou by removing a source of oxygen demand. Removal of this silt and sediment overburden will create a better fish habitat by exposing some of the natural bottom of DeBary Bayou. Fish are unable to spawn in the unstable silt and sediment. Removal of this silt and sediment overburden will increase the depth of water in DeBary Bayou channel to between four to six feet. The maintenance dredging, required by the Declaration of Covenants, Conditions, and Restrictions, is limited by statute to the channel which was excavated in 1969. Therefore, a continuous channel will not be maintained from the project site eastward to Lake Monroe. At present, a sandbar exists at the confluence of DeBary Bayou and Lake Monroe. During low water, this sandbar restricts navigation into and out of DeBary Bayou to small craft. At present, boats can and do travel on DeBary Bayou for fishing and for other water-related recreational activities. However, due to water level fluctuations, boating on DeBary Bayou is easier during higher water periods. During lower water periods, navigation into and out of DeBary Bayou is still possible, but boaters must proceed using common sense and caution. The United States Fish and Wildlife Service (FWS) has no evidence that manatees presently use or have ever used DeBary Bayou. Adult manatees have an average girth of approximately three (3) feet. Without a continuous channel open to Lake Monroe, manatees are not likely to go up DeBary Bayou. Since the water at the sandbar at the mouth of DeBary Bayou at its confluence with Lake Monroe is generally less than three feet deep throughout the year, it is likely that these shallow waters will deter manatees from entering DeBary Bayou. DeBary Bayou is a spring-fed run from a spring a substantial distance upstream. The sheetflow of the spring water follows a circuitous route through marsh areas prior to reaching the area of this project. The proposed site is just west of the 1-4 overpass and Lake Monroe. The FWS's data show that the St. Johns River in Volusia County has an extremely low documented manatee mortality rate resulting from boat/barge collisions. Generally, boats greater than 23 feet long are more likely to kill manatees outright than smaller boats are. In marinas, manatees are very rarely killed by collisions with boats. Manatees and marinas are highly compatible. On August 1, 1986, the FWS issued a "no-jeopardy" opinion regarding Arbors' project. In this letter, the FWS stated that Arbors' project was not likely to jeopardize the continued existence of the manatee or to adversely modify the manatee's critical habitat. In the year since the FWS issued its no-jeopardy opinion, no manatee mortalities resulting from boat-barge collisions have been documented in the St. Johns River in Volusia County. The FWS recommended one boat slip per one hundred linear feet of waterfront, or twenty-six boat slips for the project. A single-family residence which would be entitled to one pier could berth an unlimited number of boats at that single pier. The FWS would have no control over the number of boats using that single pier. Arbors' project calls for twenty-six piers. The FWS's evaluation of Arbors' project is exactly the same as that agency's evaluation of any other marina project anywhere in areas designated as critical manatee habitat. All of the St. Johns River in Volusia County, Florida, is designated as critical manatee habitat. On July 16, 1986, after issuance of its Intent to Issue, DER received comments from the Florida Department of Natural Resources regarding Arbors' project and its potential impact on manatees. DER considered the possibility of boat/manatee collisions and had specifically considered this issue. DER did not agree with the broad and general concerns expressed by the Department of Natural Resources, and DER's rules have not adopted a specific requirement regarding a ratio between the length of a project's shoreline and the number of permittable boat slips. On July 16, 1986, the Department received a letter from the FWS concerning fisheries issues and navigation. This FWS letter was received after issuance of DER's Intent to Issue. Although DER considered these comments, DER disagreed with the FWS's recommendations regarding these issues. Water quality sampling and analysis showed that at present, there are no violations of DER's Class III water quality standard in DeBary Bayou, except for the dissolved oxygen criterion on some occasions during early-morning hours, and that result is to be expected. It is further not expected that there will be any water quality violations after the project is completed. If the work areas affected by driving piles to build floating docks and the work area around the maintenance dredging of the DeBary Bayou channel are contained within turbidity barriers, as required by general and specific conditions of the DER's proposed Draft Permit, it is anticipated that no violations of the Class III turbidity criterion will occur during construction of Arbors' project. By maintenance dredging the former DeBary Bayou channel, Arbors will remove the silt and sediment overburden from the channel and restore a deep (four to five feet below mean sea level) channel having a hard sand/fragmented shell bottom. Arbors' dock will be restricted to small boats whose operation in the deep channel will be unlikely to re-suspend silt and sediment and cause violations of the Class III turbidity criterion. Additionally, it is unlikely that any turbidity which is created by turbulence from boat propellers in a designated "No Wake, Slow Speed" zone will violate the Class III turbidity criterion. Although the entire project will be enhanced by the proposed maintenance dredging, such dredging is not a part of the permit application. From the evidence it appears that the project is permittable without the dredging. Although Arbors' project will result in the addition of some oils and greases associated with outboard motors to DeBary Bayou, the addition is not expected to result in violations of the Class III water quality standards. Additionally, release of heavy metals from anti-fouling paints should be minimal, and that release can be further controlled by specifically prohibiting over-water repair of boats and motors. Some addition of phosphorous to the waters of DeBary Bayou is anticipated due to use of phosphate-based detergents for washing boats. Additionally, minimal amounts of phosphorous may be added to DeBary Bayou from re-suspension of organic silts by turbulence from boat propellers. However, DER has no standards for phosphorous in fresh waters, and the minimal additional amounts of phosphorous expected from these sources are not anticipated to violate DER's general nutrient rule. Operation of boats at Arbors' proposed boat docks will cause no water quality problems which would not be caused by operation of boats at any other marina anywhere in Lake Monroe or anywhere else in the State of Florida. While WVC's expert, Robert Bullard, testified that Arbors' proposed boat docks could potentially cause violation of DER's Class III water quality criteria for turbidity, oils and greases, heavy metals and phosphorous, he was unable to testify that Arbors' project actually would cause such violation. His testimony in this regard was speculative and is not given great weight. No other WVC expert testified that Arbors' project was likely to cause violation of any criteria of DER's Class III water quality standards. It is anticipated that the shade cast by the boat docks will not have an adverse affect on water quality. Additionally, DeBary Bayou is a clear, spring-fed water body open to direct sunlight. The boat docks will cast shade which will enhance fish habitat. The proposed docks will not threaten any production of fish or invertebrate organisms. The mitigation plan proposed by the applicant and accepted by Volusia County and DER requires planting wetland hardwood tree species. These trees will certainly assist in stabilizing the bank of DeBary Bayou and minimizing erosion of the shoreline. Additionally, these trees will absorb nutrients from the water and will perpetuate the wooded wetland habitat along the DeBary Bayou shoreline. Arbors' own expert, Carla Palmer, also suggested the sprigging of eel grass in the dredged portion of DeBary Bayou. Such planting should be included as part of the mitigation plan. DER considered the cumulative impact of this docking facility. Four marinas are presently permitted on Lake Monroe and in the St. Johns River between Lake Monroe and Deland. DER considered these facilities' existence when it reviewed Arbors' application, and was satisfied that Arbors' boat dock facility would not have an adverse cumulative impact. There are no specific guidelines for a cumulative impact evaluation; accordingly, DER must apply its cumulative impact evaluation on a case-by-case basis. In the present case, there is no showing of adverse cumulative impacts from this project. Arbors' project will not adversely affect significant historical or archaeological resources recognized pursuant to applicable Florida or Federal Law. WVC was organized in March 1985, to oppose development in West Volusia County. WVC did not meet regularly and did not keep regular minutes of its meetings in the interim between organizing and filing the Petition in June 1986, for an administrative hearing on the Intent to Issue a permit for Arbors' project. When the Petition was filed, WVC did not have a membership roll, and was unsure how many members it had. Further, it is unclear as to how many members may have attended an "emergency" meeting to authorize filing said Petition. Approximately five months after said Petition was filed, WVC was incorporated and approximately nine months after the Petition was filed, WVC compiled a list of the people who were WVC members in June 1986. The emergency meeting WVC held in June 1986, to authorize filing said Petition was the first and the only such "emergency" meeting WVC ever held. The minutes of the emergency meeting have been lost. In June 1986, WVC may have had written rules authorizing emergency meetings and authorizing it to file suit, but its Chairman is unsure of this. Six of WVC's approximately 20 members may have lived within one mile of Arbors' project site in June 1986. Two of these members lived on waterfront property on Lake Monroe east of the 1-4 bridge. Some of these WVC members have never taken a boat west of 1-4 onto DeBary Bayou. WVC, as an organization, never sponsored outings or boat trips onto DeBary Bayou before filing the Petition. WVC's officers at the time of filing the Petition did not use DeBary Bayou for boating, fishing or swimming. No WVC members have ever seen manatees in DeBary Bayou. As with any other similar project on Lake Monroe, the boats which might be berthed at Arbors' project might add additional trash to the waters of Lake Monroe, might disturb the wildlife which WVC members might see on their property, and might cause wakes which might erode waterfront property. One of WVC's founders, who was an officer in June 1986, when WVC filed the Petition, stated that she would not be adversely affected in kind or degree any more than any other taxpayer in Florida. Friends timely intervened and its intervention was authorized by its membership at a regularly noticed meeting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order granting Permit Number 64-114399-4, subject to those specific conditions set forth in paragraph 6 hereof and as modified by the stipulation entered into between Arboretum, Volusia County, and Department of Environmental Regulation, as more particularly described in paragraphs 7 and 8 hereof, and to include within the mitigation plan the sprigging of eel grass in areas of the dredged portion of DeBary Bayou. DONE AND ENTERED this 16th day of September 1987, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 16th day of September 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-2463 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner and Intervenor, West Volusia Conservancy, Inc., and Friends of the St. Johns, Inc. 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(3); 2(5); 8(24); 13(8); 46(57); and 47(57). 2. Proposed findings of fact 3, 4, 7, 10, 11, 12, 28, 29, 32, 34, 35, 36, 40, 42, 43, 44, and 45 are rejected as being subordinate to the facts actually found in this Recommended Order. 3. Proposed findings of fact 5, 14, 15, 16, 17, 20, 23, 24, 25, 26, 27, 30, 31, 33, 39, and 41 are rejected as being unsupported by the competent, substantial evidence. 4. Proposed findings of fact 6, 9, 18, 19, 21, 22, 37, and 38 are rejected as irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Bayou Arbors, Inc. 1. Each of proposed findings of fact 1-56 are adopted in substance as modified in the Recommended Order, in Findings of Fact 1-56. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Environmental Regulation Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-11(1-11); 13-28(12-27); 29-38(29-38); 39(38); and 40-48(39-47). Proposed finding of fact 12 is rejected as unnecessary. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Richard S. Jackson, Esquire 1145 West Rich Ave. Deland, Florida 32720 Dennis Bayer, Esquire P. O. Box 1505 Flagler Beach, Florida 32036 Philip H. Trees, Esquire P. O. Box 3068 Orlando, Florida 32802 Vivian F. Garfein, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301-8241
Findings Of Fact The petitioners Petitioners are special taxing districts and political subdivisions of the State of Florida, which were created pursuant to Chapter 298, Florida Statutes. The petitioners and their pertinent structures and operations were authorized by Chapter 298, Florida Statutes, for the purpose of providing irrigation, drainage and flood protection for the landowners within their respective boundaries. In order to effect this purpose, the petitioners designed and operate their water control structures to pump excess stormwater and surface water directly to Lake Okeechobee (the "Lake") in the case of East Beach Water Control District (East Beach) and directly to the Rim Canal at the southern end of the Lake in the case of South Shore Drainage District (South Shore), East Shore Water Control District (East Shore), and South Florida Conservancy District (South Florida). East Beach covers a total area of approximately 6,542 acres located along the southeast shore of the Lake. Approximately 75-80 percent of the lands contained within the District are used for agriculture, with most of those lands planted in sugarcane. The remaining 20-25 percent of the drainage area is urbanized. The urban area includes the City of Pahokee. South Shore covers a total area of approximately 4,230 acres located along the Rim Canal at the south end of the Lake. Approximately 80-85 percent of the lands contained within the District are used for agriculture, with most of those lands planted in sugarcane. The remaining 15-20 percent of the drainage area is urban and industrial. The urban area includes a portion of the cities in South Bay, Lake Harbor, Bean City, South Shore Village, and sparsely scattered home sites throughout the District. East Shore covers a total area of approximately 8,136 acres located along the Rim Canal at the south end of the Lake. With the exception of lands developed as canals, levees, roads, and other service-related systems, the entire district is used for agricultural purposes. South Florida covers a total area of approximately 32,754 acres located along the Rim Canal at the south end of the Lake with 28,649 acres located in Palm Beach County and 4,105 acres located in Hendry County. Approximately 85-90 percent of the land is used for agricultural purposes and the remaining 10-15 percent is used for urban or industrial purposes. The City of Belle Glade constitutes a major part of the urban land with the remainder situated around the cities of South Bay, Lake Harbor and other scattered home sites. Here, the parties have stipulated that petitioners have standing to maintain this challenge. Background Before 1986, petitioners' discharges into the Lake had not been regulated by the respondent, Department of Environmental Regulation (Department). In 1985 the Governor of the State of Florida issued Executive Order Number 86-150. This executive order observed that the Lake Okeechobee Technical Committee, formed to study water quality and water supply conditions in the Lake, had found the Lake to be in danger of becoming hypereutrophic because of the excessive amounts of nutrients, especially phosphorus, it was receiving, and had recommended corrective actions to substantially reduce the nutrient load and provide for long-term monitoring, research and management needs for the Lake. To protect and preserve the Lake, the executive order directed, inter alia, that the Department "bring all private and publically controlled backpumping sources into the lake under permit review or under enforcement for operating without a permit." Pursuant to that executive order, the Department, in concert with petitioners, began the process of regulating petitioners' discharges into the Lake. The Department initially attempted to have the petitioners enter into consent orders; however, the petitioners objected to that concept. Ultimately, both the Department and petitioners agreed to the issuance of short-term operating permits (TOPs) containing specific conditions aimed at determining the composition of the discharges from petitioners' systems and at reducing the pollution loading into the Lake. The TOPs, issued December 30, 1986, and effective until September 23, 1988, were issued pursuant to the Department's regulatory authority over pollution sources contained in Chapter 403, Florida Statutes, and Rule 17-4, Florida Administrative Code. 2/ Pertinent to this case, Section 403.088, Florida Statutes, provided, and continues to provide, as follows: 403.088 Water pollution operation permits; temporary permits; conditions-- (1) No person, without written authorization of the department, shall discharge into waters within the state any waste which by itself or in combination with the wastes or other sources, reduces the quality of the receiving waters below the classification established for them . . . (2)(a) Any person intending to discharge wastes into the waters of the state shall make application to the department for an operation permit. Application shall be made on a form prescribed by the department and shall contain such information as the department requires. If the department finds that the proposed discharge will reduce the quality of the receiving waters below the classification established for them, it shall deny the application and refuse to issue a permit. . . (3)(a) A person who does not qualify for an operation permit or has been denied an operation permit under paragraph (b) of subsection (2) may apply to the department for a temporary operation permit . . . After consideration of the application, any additional information furnished, and all written objections submitted, the department shall grant or deny a temporary operation permit. No temporary permit shall be granted by the department unless it affirmatively finds: The proposed discharge does not qualify for an operation permit; The applicant is constructing, installing, or placing into operation, or has submitted plans and reasonable schedules of constructing, installing or placing into operation, an approved pollution abatement facility or alternate waste disposal system, or that the applicant has a waste for which no feasible and acceptable method of treatment or disposal is known or recognized but is making a bona fide effort through research and other means to discover and implement such a method; The applicant needs permission to pollute the waters within the state for a period of time necessary to complete research, planning, construction, installation, or operation of an approved and acceptable pollution abatement facility or alternate waste disposal system; There is no present, reasonable, alternative means of disposing of the waste other than by discharging it into the waters of the state; The denial of a temporary operation permit would work an extreme hardship upon the applicant; The granting of a temporary operation permit will be in the public interest; or The discharge will not be unreasonably destructive to the quality of the receiving waters. A temporary operation permit issued shall: Specify the manner, nature, volume, and frequency of the discharge permitted; Require the proper operation and maintenance of any interim or temporary pollution abatement facility or system required by the department as a condition of the permit; Require the permitholder to maintain such monitoring equipment and make and file such records and reports as the department deems necessary to ensure compliance with the terms of the permit and to evaluate the effect of the discharge upon the receiving waters; Be valid only for the period of time necessary for the permit holder to place into operation the facility, system, or method contemplated in his application as determined by the department; and Contain other requirements and restrictions which the department deems necessary and desirable to protect the quality of the receiving waters and promote the public interest. And, Section 403.927, Florida Statutes, provided, and continues to provide, as follows: 403.927 Use of water in farming and forestry activities.-- . . . it is the intent of the Legislature to provide for the construction and operation of agricultural water management systems under authority granted to water management districts and to control, by the department or by delegation of authority to water management districts, the ultimate discharge from agricultural water management systems. . . . The department may require a stormwater permit or appropriate discharge permit at the ultimate point of discharge from an agricultural water management system or a group of connected agricultural water management systems. . . (4) As used in this section, the term: * * * (b) "Agricultural water management systems" means farming and forestry water management or irrigation systems and farm ponds which are permitted pursuant to chapter 373 or which are exempt from the permitting provisions of that chapter. The agricultural water management systems owned and operated by petitioners fall within the definition of "agricultural water management systems" set forth in Section 403.927(4)(b), Florida Statutes. Consistent with the provisions of Section 403.088, Florida Statutes, Rule 17-4.070(1), Florida Administrative Code, provides: A permit shall be issued to the applicant upon such conditions as the Department may direct, only if the applicant affirmatively provides the Department with reasonable assurance based on plans, test results, installation of pollution control equipment, or other information, that the construction, expansion, modification, operation, or activity of the installation will not discharge, emit or cause pollution in contravention of Department standards or rules. However, for discharges of wastes to water, the Department may issue temporary operation permits under the criteria set forth in Section 403.088(3), F.S. Chapter 17-4, Florida Administrative Code, further delineates the specific procedures to obtain permits and the specific standards for issuing and denying permits. In July 1988, petitioners applied for an extension of their TOPs. The monthly water quality monitoring data petitioners had submitted to the Department reflected, however, that the discharges from petitioners' systems were in contravention of the Department's rules and standards. Accordingly, since petitioners had not met the obligations set forth in the TOPs, the Department advised petitioners that the TOPs would not be extended and that they were required to apply for new operating permits. The new permit applications Following the Department's refusal to extend the TOPs, petitioners filed applications for operating permits for their discharges, and the Department, consistent with its previous reviews, undertook its review pursuant to Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code. Effective July 1, 1989, however, Part IV of Chapter 373, Florida Statutes, was amended with regard to, inter alia, the definition of stormwater management systems so as to include pumped discharges such as petitioners. Further, pertinent to this case, Part IV of Chapter 373 provided: 373.416 Permits for maintenance or operation-- (1) . . . the governing board or department may require such permits and impose such reasonable conditions as are necessary to assure that the operation or maintenance of any stormwater management system, dam, impoundment, reservoir, appurtenant work, or works will comply with the provisions of this part and applicable rules promulgated thereto, will not be inconsistent with the overall objectives of the district, and will not be harmful to the water resources of the district. 373.418 Rulemaking; preservation of existing authority.-- It is the intent of the Legislature that stormwater management systems be regulated under this part incorporating all of existing requirements contained in or adopted pursuant to chapters 373 and 403. Neither the department nor governing boards are limited or prohibited from amending any regulatory requirement applicable to stormwater management systems in accordance with the provisions of this part. It is further the intent of the Legislature that all current exemptions under chapters 373 and 403 shall remain in full force and effect and that this act shall not be construed to remove or alter these exemptions. In order to preserve existing requirements, all rules of the department or governing boards existing on July 1, 1989, . . . shall be applicable to stormwater management systems and continue in full force and effect unless amended or replaced by future rulemaking in accordance with this part. Upon the amendment of Part IV, Chapter 373, Florida Statutes, petitioners amended their pending applications to reflect their desire that the applications be processed pursuant to the newly amended provisions of Part IV, Chapter 373, as they relate to stormwater management systems. The Department, acknowledging the amendments to chapter 373, processed the applications accordingly; however, in view of the provisions of section 373.418(1) which "incorporat[ed] all of the existing requirements contained in or adopted pursuant to chapters 373 and 403," the Department did not in fact change the standards by which these applications were reviewed, to wit: Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code. On March 14, 1991, the Department issued a notice of permit denial to each petitioner. In each of the denials, the Department noted the provisions of Section 373.416(1), Florida Statutes, ["the . . . department may require such permits and impose such reasonable conditions as are necessary to assure that the operation . . . of any stormwater system . . . will comply with the provisions of this part and applicable rules promulgated thereto . . . and will not be harmful to the water resources of the district"] and Section 373.418(1), Florida Statutes, ["incorporating all of existing requirements contained in or adopted pursuant to chapters 373 and 403"], and concluded that the applications should be denied for the following reasons: The Department has completed its review of the subject application, supporting documents and the discharge monitoring reports submitted by the applicant as required by Department Permit NO. IT50- 125678. Based on this review the Department has made the determination that the applicant has failed to provide reasonable assurances that the discharge from the agricultural stormwater management system proposed by the applicant will be in compliance with the aforementioned sections of Chapter 373, F.S. and the Class I Surface Water Quality Standards adopted by the Department pursuant to Chapter 403.061, F.S. and contained in Section 17-302.540, F.A.C. and the Antidegradation Policy for Surface Water Quality contained in Section 17-302.300(3), F.A.C. The Department's action is facially consistent with the provisions of chapter 373, and chapter 403 incorporated therein, as well as the existing rules adopted pursuant to such chapters which require, whether the system be exempt or not, that discharges comply with state water quality standards. See e.g., Sections 373.416, 373.418, 403.088 and 403.927, Florida Statutes, and Rules 17- 4.070(1), 17-25.060, 17-25.080, and Chapter 40E-4, Florida Administrative Code. Availing themselves of the point of entry accorded by the notice of permit denial, petitioners filed a request for administrative hearing, pursuant to Section 120.57, Florida Statutes, to contest the denial of their applications. Such proceedings are currently pending before the Division of Administrative Hearings, but distinct from this proceeding under Section 120.535, Florida Statutes. The Section 120.535 challenge The challenged policy, as alleged in paragraphs 19 of the petition, purports to be as follows: The Department has made a policy determination, which draws a distinction between "agricultural stormwater discharges" and other stormwater discharges regulated by Chapter 373, Florida Statutes, and the rules promulgated pursuant thereto. The Department has identified the Petitioners' discharge as "agricultural stormwater discharges" and has subjected the petitioners to a set of rules and criteria that the Department has not adopted but which are apparently different from the general stormwater regulations adopted pursuant to Chapter 373, Florida Statutes. Such articulation of the challenged policy is substantially identical to petitioner's statement of the issue identified in their proposed final order, as follows: The issue for determination in this case is whether the Department's policy to apply criteria different from that contained in its "Regulation of Stormwater Discharge" Rule 17-25, Florida Administrative Code, and/or Rule 40E-4, Florida Administrative Code, of the South Florida Water Management District (SFWMD), when seeking to regulate an agricultural stormwater management system, as defined in Chapter 373, Part IV, Florida Statutes, constitutes a rule . . . . The premises for the petitioners' challenge are their contention that the Department has drawn a distinction between the agricultural stormwater discharges of petitioners and other stormwater discharges, which is not supported by statutory or duly promulgated rules, and that the Department has applied criteria, which are not supported by statutory or duly promulgated rules, to evaluate petitioners' applications. The credible proof fails, however, to support petitioners' premises. Contrary to the assertions raised by petitioners, the statutory and duly promulgated rules heretofore discussed provide ample authority for the Department's action, and there is no credible proof that the Department is applying any criteria that is not apparent from an application or reading of such statutes and existing rules. Indeed, Rule 17-25.060(2), Florida Administrative Code, provides: The permit requirements of Chapter 17-4 or other applicable rules, rather than those of this chapter, shall apply to discharges which are a combination of stormwater and industrial or domestic wastewater or which are otherwise contaminated by non-stormwater sources unless: (a) the stormwater discharge facility is capable of providing treatment of the non- stormwater component sufficient to meet state water quality standards . . . . Here, the proof is compelling that the Department's decision was predicated on existing statutory and rule authority, and that it did not apply any criteria not promulgated as a rule or not contained within existing statutory authority to evaluate petitioners' applications, or treat petitioners' discharges differently than any other stormwater discharge contaminated by non-stormwater sources.
Findings Of Fact The Respondent is licensed to construct water wells. He constructed such a well on the property of Mr. Robert Phorte, Highway 90 West, Marianna, Florida, on June 18, 1976. The water well casing of that well was placed in a bore hole with a diameter in excess of the outside diameter of the water well casing, thus leaving an open annular space. That annular space was not filled with grout from bottom to top as required by Rule 16G-3.21(2)(d) and 17- 21.10(2)(d), F.A.C. The subject well obtains its water from a rock layer or other consolidated geologic formation in Jackson County, Florida. At the time Respondent constructed the subject well Mr. T. E. Langford, an inspector for the Northwest Florida Water Management District, was on the job site and observed the construction of the well. Mr. Langford was aware that the annular space around the subject well was not filled with grout, but for a small cap at the top of the well. However, the unrebutted testimony shows that Mr. Langford told Respondent that the well "was perfect and needed no grout."
Recommendation Respondent did not dispute that he failed to construct the subject well in accordance with the grouting requirements set forth above. However, it is noted that an inspector and representative of the Northwest Florida Water Management District was present on the job site throughout the construction of the well and, though aware that the well had not been grouted as required, made no attempt to suspend the construction of the well and, in fact, told Respondent that the well did not need grout. Therefore, it is hereby RECOMMENDED that the Respondent, Lester M. Basford, be instructed that hereinafter all wells constructed by him shall conform without exception to the rules for such construction including the grouting of wells. However, because of the presence on the job site at the time of construction and apparent acquiescence by the agent of the Northwest Florida Water Management District and in light of the lack of showing that failure to grout this particular well will directly lead to contamination of the aquifer or some other serious consequence, it is RECOMMENDED that no further action be taken against the Respondent on this violation. ENTERED this 31st day of March, 1977, in Tallahassee, Florida. CHRIS H. BENTLEY Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1977. COPIES FURNISHED: J. W. Holder, Esquire Barrett, Boyd and Holder Post Office Box 1501 Tallahassee, Florida 32302 Lester Basford Route 4 Graceville, Florida 32440
The Issue The central issue in this case is whether the Department of Environmental Regulation (Department) should grant a dredge and fill permit which has been requested by the Respondent, William R. Cullen (Applicant). That proposed permit has been opposed by the Petitioners (who will be referred to collectively as Petitioners for convenience sake).
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received, the following findings of fact are made: The Department is the state agency authorized to issue permits pursuant to Chapter 403, Florida Statutes. The Respondent, William R. Cullen, filed an application for a dredge and fill permit to construct a slip marina on June 4, 1985. The original request was subsequently amended to seek approval for a forty-two slip commercial marina. The project site for the Applicant's marina is located at Key Largo, Monroe County, Florida. The site is within Buttonwood Sound, Florida Bay. The property is owned by Mr. Cullen and his family. All of the proposed improvements will be constructed on submerged lands or uplands owned or controlled by the Cullen family. The project site is located within a commercial area of Key Largo and contains frontage on both the water, Buttonwood Sound, and the highway, U.S. Highway 1. The project site has a basin which was created by the excavation of materials used for road construction from the shoreline and the installation of an L-shaped rock jetty which runs roughly perpendicular and then parallel to the shoreline. This jetty was installed during the late 1960s. The water depths within the basin range from 3 feet to approximately 14 feet. The water within the basin is subject to the same tidal considerations as the waters within Buttonwood Sound. There is no interruption of the flow of water in and out of the basin from those waters of the Sound. The water within this basin is within an Outstanding Florida Water as defined in Rule 17-3.041, Florida Administrative Code. The Applicant's plan calls for the excavation of appproximately 30,170 square feet of upland area and the dredging of the existing basin for approximately 18,460 dredged square feet. During the construction phases, the Applicant proposes to install turbidity curtains to limit the adverse effects expected during that time. The improvements are intended to be a permanent alteration to the basin design and will permanently modify the marine life habitat within that basin. The Applicant proposes to remove portions of the existing jetty to allow additional water to flow through the basin unimpeded by the jetty walls. The removal of the jetty walls will expedite the dilution and flushing of potential pollutants from the basin on a tidal frequency. That flushing is purported to assure that the water quality within the basin will not be diminished. However, such pollutants will be flushed into Buttonwood Sound. Stormwater accumulating on the upland project is to flow toward a lower upland area and should not to be dumped into the basin. The proposed marina is to have fueling facilities and the Applicant has agreed to design that system to limit inadvertent spillage. Further, as a condition of the permit, the Applicant has agreed to abide by the Department of Natural Resources' spill contingency plan requirements. The proposed marina is designed to provide portable sewage pumpout facilities for each slip. A permanent pumpout facilities will also be available. The Applicant seeks to attract boats in the range of 30 to 50 feet in length at this facility. While there are a number of other marinas in other areas of Key Largo which might accomodate that size boat, the marinas in the immediate vicinity of this project site are designed for smaller craft. The area within the basin consists of unvegetated bottom, submerged rip-rap, sea grasses, and hardbottom/algae communities--the predominant classifications being the latter two. The deeper hardbottom areas are to be filled and portions of the sea grasses will be dredged in order to configure the proposed docks. Additionally, other sea grass areas will be shaded, and thereby disturbed, by the construction of the docks. There are no historical or archaeological features relevant to the proposed site. The area has not been designated as a critical manatee area, however, manatees do frequent the project vicinity and have been observed feeding immediately adjacent to the basin. The permit proposed for this project requires a water quality monitoring plan. In addition to sampling for coliform, diesel by-products, oils, greases, detergents, oxygen, copper, lead and zinc, the plan requires sampling for aluminum, cadmium, and chromium. The monitoring stations are to be located both within the basin (2 stations) and outside the basin (2 stations). Liveaboards or others continuously docked at the marina will create additional shading which will disrupt and adversely affect the sea grass system. In order to provide access to the marina, the Applicant intends to dredge a channel in an area containing sea grass which is undisputedly within the Outstanding Florida Waters. The Department deemed the subject application was complete on February 23, 1988. The Department did not apply the Keys Rule found in Rule 17-312.400, Florida Administrative Code, to this project. The Department also did not apply the Mitigation Rule found in Rule 17-312.300, Florida Administrative Code, to this project. Michael Dentzau has personally reviewed and processed 250-300 dredge and fill permits during his tenure with the Department. Of those projects he has reviewed, he has not recommended that dense sea grass beds of the type located within this project site be dredged in order to construct a commercial marina. Phillip Edwards was responsible for executing the Intent to Issue in this case. In determining that this project had provided reasonable assurances that water quality standards will not be violated, Mr. Edwards weighed the public interests criteria set forth in Section 403.918, Florida Statutes. Because he received letters purportedly from elected officials, Mr. Edwards presumed that the project was in the public interest. That assumption of fact has not been established by this record. According to Mr. Edwards, the adverse effects expected by this project could be adequately addressed by the permit conditions when weighed against the public interest in favor of the project. Since Mr. Edwards' assumptions as to the public interest in this project have not been established, his conclusion regarding the weight that interest should receive can be given little consideration. The project as proposed by the Applicant will not adversely affect navigation or cause harmful erosion or shoaling. The project as proposed by the Applicant will adversely affect fishing or marine productivity within the basin since it will permanently alter the basin biologically by destroying sea grass. The increased boat traffic within the Sound will also detract from the present recreational uses enjoyed by area residents. According to Mr. Edwards, it is very unusual for the Department to issue a permit when sea grasses will be adversely affected. In the 17 years in which he has reviewed permits, only two occasions merited approval when the destruction of sea grasses to the extent in this case would result. Neither of those cases were factually similar to the case at issue. In those cases, however, elected officials advised Mr. Edwards, as he presumed they had here, that there was a public need for the permit. Increased boat traffic will result in increased manatee mortality due to collisions. In order to assure water quality will not be degraded within a marina, the project should have a short flushing time comparable to healthy natural embayments. In this case, the flushing proposed by the Applicant is dependent, in part, on winds which may be inconsistent or relatively minimal during the summer months.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Environmental Regulation enter a final order denying the permit requested by the Applicant. DONE and ENTERED this 22nd day of August, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1990. APPENDIX TO CASE NOS. 89-3779 et seq. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY PETITIONERS: The first three sentences of paragraph 1 are accepted; the remainder is rejected as argument or irrelevant. Paragraph 2 is accepted. Paragraph 3 is accepted. With regard to paragraph 4, it is accepted that the Department deemed the application complete on February 23, 1988; otherwise, the paragraph is rejected as argument. With regard to paragraph 5, it is accepted that the habitat within the basin is the same as the habitat throughout Florida Bay and that the basin is not "enclosed" hydrologically; otherwise, the paragraph is rejected as argument or comment. Paragraphs 6, 7, 8, 9, 10, 11, and 12 are rejected as argument, conclusions of law, or comment. The paragraphs do not recite facts pertinent to this case. Paragraphs 13, 14, and the first two sentences of paragraph 15 are accepted. The remainder of paragraph IS is rejected as argument. The first two sentences of paragraph 16 are accepted. The remainder of the paragraph is rejected as comment or argument. Paragraph 17 is accepted. Paragraph 18 is rejected as argument. To the extent that paragraph 19 accurately describes Van de Kreeke's assessment of the report it is accepted; otherwise rejected as irrelevant, comment, argument, recitation of testimony or unsupported by the record. The report upon which comment is directed was not offered in this cause to prove its truth/accuracy. Paragraphs 20 through 22 are rejected as comment, argument, recitation of testimony or unsupported by the record-- see comment to paragraph 19 above. Paragraphs 23 through 26 are accepted. Paragraphs 27 and 28 are rejected as argument, comment, or contrary to the weight of the evidence. Paragraphs 29 and 30 are accepted. Paragraph 31 is rejected as argument or contrary to the weight of the evidence. Paragraphs 32 and 33 are accepted. Paragraph 34 is rejected as hearsay, irrelevant, or argument. Paragraph 35 is rejected as comment or argument. Paragraph 36 is accepted. Paragraphs 37 through 40 are rejected as argument or contrary to the weight of the evidence. Paragraphs 41 through 43 are accepted. Paragraph 44 is rejected as contrary to the record. Paragraph 45 is rejected as argument. Paragraph 46 is rejected as argument or contrary to the weight of the evidence. Paragraph 47 is accepted but is comment. Paragraphs 48 and 49 are accepted. Paragraph 50 is rejected as repetitive. Paragraph 51 is rejected as argument or conclusions of law. The first three sentences of paragraph 52 are accepted. The remainder of the paragraph is rejected as argument. The first sentence and that portion of the second sentence of paragraph 53 that ends with the word "authenticity" is accepted. The remainder of the paragraph is rejected as argument or conclusions of law. Paragraphs 54 and 55 are accepted. Paragraph 56 is rejected as irrelevant or hearsay. Paragraph 57 is rejected as hearsay. Paragraph 58 is rejected as argument, comment, or irrelevant. Paragraphs 59 through 66 are accepted. Paragraph 67 is rejected as contrary to the weight of the evidence. Paragraph 68 is rejected as contrary to the weight of the evidence. Paragraphs 69 and 70 are accepted. Paragraph 71 is rejected as repetitive. Paragraph 72 is rejected as argument. The first sentence of paragraph 73 is accepted; the remainder is rejected as contrary to the weight of the evidence. Paragraph 74 is accepted. Paragraphs 75 through 77 are rejected as contrary to the weight of the evidence. Paragraphs 78 and 79 are accepted. Paragraph 80 is rejected as repetitive. With the inclusion of the words "and hardbottom and algae" paragraph 81 is accepted. Paragraph 82 is accepted. Paragraph 83 is accepted. Paragraph 84 is rejected as contrary to the weight of the evidence. 5l. Paragraphs 85 through 89 are accepted. With the substitution of the word "not" for the word "ever" in the last sentence of paragraph 90, it is accepted. Paragraphs 91 through 94 are accepted. Paragraph 95 is rejected as not supported by the record or contrary to the weight of the evidence. Paragraphs 96 through 100 are accepted. Paragraph 101 is rejected as repetitive. Paragraphs 102 through 106 are rejected as argument, comment, or irrelevant. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraph 1 is accepted. Paragraph 2 is rejected as contrary to the weight of the credible evidence. The waters within the basin are of the same origin as they were prior to the creation of the jetty; no artificial body of water was created. With regard to paragraph 3 it is accepted that the jetty was constructed in the late 1960s. Paragraph 4 is accepted. With regard to paragraph 5 it is accepted that that is the applicants proposal no conclusion as to the likelihood of that is reached. Paragraph 5 is accepted. Paragraph 6 is accepted. Inevitably, however, spills will occur and must be considered as an adverse affect of the project. Paragraph 7 is accepted. Paragraph 8 is rejected as unsupported by competent evidence or contrary to the weight of the evidence presented. Paragraph 9 is rejected as contrary to the weight of the evidence. Paragraph 10 is accepted. Paragraph 11 is accepted but is inadequate to offset the adverse affects to manatees. Paragraph 12 is accepted but is inadequate to limit the adverse affects to sea grass. Paragraph 13 is rejected as contrary to the weight of the evidence. Paragraph 14 is rejected as contrary to the weight of the evidence. Paragraph 15 is accepted. Paragraph 16 is accepted. Paragraphs 17 and 18 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE APPLICANT: Paragraphs 1 through the first sentence of paragraph 6 are accepted. The second sentence of paragraph 6 is rejected as contrary to the weight of the evidence. Paragraphs 7 through Il are accepted. Paragraph 12 is rejected as irrelevant. Paragraphs 13 through the first sentence of paragraph 17 are accepted. The remainder of paragraph 17 is rejected as contrary to the weight of the evidence. Paragraph 18 is accepted. Paragraph 19 is rejected as unsupported by the record or contrary to the weight of the evidence. Paragraph 20 is accepted. Paragraphs 21 through 26 are rejected as contrary to the weight of the evidence. Paragraph 27 is rejected as contrary to the weight of the evidence or unsupported by competent evidence. The first sentence of paragraph 28 is accepted, the remainder rejected as speculative, comment, or unsupported by the record. The first sentence of paragraph 29 is accepted, the remainder rejected as contrary to the weight of the evidence. Paragraph 30 is accepted. Paragraph 31 is rejected as contrary to the weight of the evidence. Paragraph 32 is rejected as contrary to the weight of the evidence. Paragraph 33 is accepted but is irrelevant. Paragraph 34 is rejected as contrary to the weight of the evidence. Paragraph 35 is accepted; however, sea grasses not disturbed by dredging will still suffer adverse affects from shading and silting. Paragraph 36 is accepted but see comment to paragraph 35 above. Paragraph 37 is accepted. Paragraph 38 is accepted. Paragraph 39 is accepted but is irrelevant. Paragraph 40 is accepted. Paragraph 41 is accepted. Paragraph 42 is accepted. Paragraph 43 is rejected as irrelevant. Paragraph 44 is rejected as contrary to the weight of the evidence. Paragraph 45 is accepted but it should be noted that is not the extent of the proposal. Paragraph 46 is rejected as contrary to the weight of the evidence. Paragraph 47 is accepted. Paragraph 48 is rejected as contrary to the weight of the evidence. Paragraph 49 is rejected as contrary to the weight of the evidence. COPIES FURNISHED: Pamela Presnell Garvin Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Charles Lee Florida Audubon Society 1101 Audubon Way Maitland, Florida 32751 Robert Routa P.O. Box 6506 Tallahassee, Florida 32314-6506 Linda McMullen McFARLAIN, STERNSTEIN, WILEY & CASSEDY, P.A. 600 First Florida Bank Building Tallahassee, Florida 32301 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 =================================================================
The Issue Whether or not the applicant has provided reasonable assurances that the proposed project meets the requirements of Chapter 403 F.S. and Chapter 17 for issuance of a dredge and fill permit, and if so, how those assurances may be incorporated into the permit as finally issued. BACKGROUND AND PROCEDURE On May 3, 1989, the applicant, Johnny P. Hires, applied to the Department of Environmental Regulation (DER) for an "after the fact" dredge and fill permit to authorize the existence of a dock and associated structures which had already been constructed on Miller's Creek in Duval County, Florida. On July 28, 1989 DER executed its Notice of Permit Denial for the project. On May 29, 1990, negotiations between Hires and DER resulted in a Notice of Permit Issuance which approved the project subject to a specific condition (Specific Condition No. 7) to which Mr. Hires had already agreed. On June 8, 1990, DER received Gilmour and Gray's petition challenging DER's approval of the permit. On June 13, 1990, the petition was referred to the Division of Administrative Hearings for formal hearing pursuant to Section 120.57(1) F.S. and was assigned DOAH Case No. 90-3690. Prior to formal hearing, DER personnel reassessed the agency position once again with the result that at formal hearing DER asserted that Specific Condition No. 7 of the proposed permit was not stringent enough and sought to present evidence that Specific Condition No. 7 should be modified if the permit is to be issued at all. Neither Petitioners nor Hires objected to this procedure, so the parties' positions at hearing were, by agreement, as follows: Mr. Hires wanted the proposed permit finalized as drafted; the Department wanted the proposed permit issued, with a modified Specific Condition No. 7; and Petitioners wanted the proposed permit denied.
Findings Of Fact Mr. Hires constructed a dock, boathouse, and three catwalks in February or March of 1989, without a permit, within the landward extent of Miller's Creek. The dock is 40 feet by 5 feet with a 24-foot "L" at the waterward end. The catwalks form two boat slips, which are 16 feet by 32 feet and 8 feet by 24 feet. These slips are more or less covered by a roof 32 feet by 24 feet. The boathouse is as yet incomplete. Miller's Creek flows into the St. Johns River near the base of the Hart Bridge in Jacksonville, Florida. This location subjects the project to DER's jurisdiction of Class III (recreational use) waters. It is also near Atlantic and Beach Boulevards. Mr. Hires' property is on the west side of the Creek. At low tide, the creek bottom is exposed, except for a channel which is located near the eastern edge of the creek. The channel is approximately 110 feet from the boat slips. DER's original permit denial stated: Use of the slips by boats would result in continuous bottom scour by prop dredging of the area within the slips and between the slips and the channel. This area is approximately 110 feet in length. Prop dredging creates turbidity and moves bottom material into other areas of the creek which can alter the physical, chemical and biological nature of the water body. The movement of bottom material into the existing channel will cause shoaling within adjacent sections of the creek, altering habitat and affecting flows of water and navigation. Increased turbidity in the water column results in reduced light penetration and photosynthetic oxygen production which together with the resuspension of organic bottom material can increase oxygen demand and release pesticides, heavy metals and hydrogen sulphide into the water column. Therefore the project can be expected to have a long-term detrimental impact on water quality and biological resources of the river. Specific Condition No. 7 of the proposed permit issuance document requires that: At no time shall any motorized vessel utilizing the dock disturb the bottom sediments causing prop dredging or generating turbidity which exceeds the State Water Quality Standard. Mr. Hires has indicated his intent to comply with Specific Condition No. 7 and sincerely believes that he will be able to do so. DER has adopted water quality standards within Ch. 17 F.A.C. These may apply to primary turbidity, that is, turbidity due to actual construction of the project, or secondary turbidity, that is, turbidity resulting from subsequent use of the completed project. Turbidity is the resuspension of bottom material into the water column. Prop dredging from motorboats causes turbidity and changes the bottom contours of a waterway. The amount of turbidity which is generated depends, among other things, upon the kind of sediment which comprises the bottom of a waterway. The bottoms of water bodies in Florida range from fine particles, called mud or silt, to larger particles, known as sand. The creek bottom of Miller's Creek is composed of mud and silt. Because of the lighter weight of mud and silt particles, they are more easily resuspended and stay resuspended longer than the larger, sand particles. The environmental impacts of turbidity depend, among other things, upon pollutants, such as heavy metals, which may become mixed with the natural sediments. Pollutants are more likely to be trapped in fine sediments, such as mud and silt, than they are likely to be trapped in coarser, sandy sediments. Runoff from Beach and Atlantic Boulevards and possible past contamination from a nearby shipyard make sediment contamination in Miller's Creek a distinct possibility. Neither DER nor Mr. Hires has performed a sediment study to determine whether pollutants were present. In approximately May of 1989, a small "access trough" was prop dredged over the 110 foot distance between the channel and Mr. Hires' dock. No permit was issued by DER for this dredging and, if a permit application for such prop dredging were submitted, no permit would be issued. The tidal range of Miller's Creek is approximately 1.5 feet. Thus, at high tide, the water is reasonably expected to be 1.5 feet above the creek bottom that is exposed at low tide. No study of the depth of the water in the access trough was presented to DER, although Mr. Hires estimated its depth at high tide to be 4 feet. Mr. Hires represented, and there is no evidence to refute his statement, that the maximum use of his own boat in this area over the last year preceding formal hearing (September 1989-September 1990) has been twelve times. Despite the credible evidence that the access trough was created by prop dredging, Mr. Hires maintained that it was not possible for his boat, which is equipped with a tunnel hull design, to further dredge the area because he can only operate his boat on idle speed on high tide in this area. Because the props on Mr. Hires' boat are recessed upward from the bottom of the boat, Mr. Hires maintained his boat would not further dredge the access trough or the remainder of Miller's Creek. However, without accurate information as to natural water depth and only vague information as to what might occur if the tide changed while Mr. Hires was out in his boat, what might occur if Mr. Hires used another boat, or what might occur if other types of boats docked at the Hires dock, Mr. Hires' information about his current boat does not constitute a reasonable assurance that no further prop dredging of Miller's Creek will occur. Mr. Tyler submitted that Hires could pole or row his boats from his dock to the channel when there is sufficient water so as to avoid prop dredging. Mr. Hires volunteered to post a bond to ensure that there would be no scouring from his use of motorized boats from his dock to the channel, but there was insufficient expert evidence to establish how high a bond would be reasonable or that DER would regard such bonding as any more substantial assurance than the applicant's policing himself under Specific Condition No. 7 as now drafted. There also was no evidence that bonding has been a successful inhibitor of prop dredging in the past, that any insurer is available to issue such a bond, or that Mr. Hires could post a sufficient cash bond. Upon the expert testimony of Jeremy Tyler and the keen observations of the lay witnesses, it is found that, through natural processes, the access trough may be reasonably expected to, with time, silt in and return to a depth consistent with the existing creek bottom. It is further found that prop dredging may be reasonably expected to cause adverse environmental impacts at this location. Upon Mr. Tyler's expert testimony, it is further found that Hires' dock and the dock's associated structures which have already been installed are not reasonably expected to cause any adverse environmental consequences. Contrary to DER's initial permit denial document, there is no vegetation in the area which might be adversely affected by shade from the dock and associated structures. If the pilings were driven into place at low tide, some temporary turbidity would have been generated by the dock and boathouse construction. However, no evidence of such turbidity can be seen at the present time. The only habitat effects of the constructed items and those planned but not completed would be the loss of the habitat which is displaced by the pilings themselves, an effect which, at this location, is inconsequential. The non-expert testimony of Petitioners with regard to endangered species was without appropriate predicate and is not probative with regard to habitat. No competent evidence was offered by Petitioners to suggest that the dock and associated structures themselves would adversely affect water quality or the public interest test criteria.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED the Department of Environmental Regulation enter a Final Order establishing the Department's proposed permit issuance action as final, provided, however, Specific Condition No. 7 of the draft permit should read: "At no time shall any motorized vessel utilize the dock." DONE and ENTERED this 18th day of October, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1990. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioners' PFOF: Covered in preliminary material. Accepted. Subordinate. Accepted in part; remainder rejected as mere argument. Respondent Hires' PFOF: Covered in preliminary material. First sentence rejected as not proved. Second sentence accepted in part and rejected in part as set out in the Recommended Order. Third sentence accepted so far as it goes but is rejected as a whole for the reasons set forth in FOF 12. Accepted that the offer was made; rejected that it provides reasonable assurances. Respondent DER's PFOF: 1-11 Accepted as modified to more accurately reflect the record evidence as a whole. Copies furnished to: COPIES FURNISHED: Kay E. Gilmour Lois O. Gray 1347 Morier Street Jacksonville, Florida 32207 Johnny P. Hires 1321 Morier Street Jacksonville, Florida 32207 William H. Congdon Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue Whether Building permit no. 93-2-4072 issued to Respondents William Lledo, Owner, and Key Marine Equipment, Inc., General Contractor by Monroe County violated Monroe County Comprehensive Plan provisions and Land Development Regulations.
Findings Of Fact On April 28, 1996, Petitioner, Department of Community Affairs (Department), received Monroe County Permit 93-2-4072 issued to Respondents, William Lledo (Lledo) and Key Marine Equipment, Inc., to construct a seawall with a five-foot wide cap which would serve as a docking facility. The project is proposed to be constructed on an undeveloped piece of real property owned by Lledo. The property is known as Lot 37, Sombrero Anglers Club South Subdivision, Boot Key, Monroe County, Florida. The property is located within the Keys Area of Critical State Concern. The proposed seawall/dock will not be supported by pilings or other supports and will not act to stabilize a disturbed shoreline. The shoreline at the subject property is not eroding. An eroding shoreline shows signs of the water undercutting the shoreline and contains no vegetation on the shoreline and submerged shelf. The subject property’s shoreline and adjacent submerged shelf are vegetated. The project will not be replacing a deteriorating seawall or bulkhead. The project, as proposed, requires the placement of fill in a manmade canal below the mean high water line. No principal use or structure has been established on the property nor is there any plan to construct a principal use on the property.
The Issue As stated by the Hearing Officer the issue in this case is whether the District should issue a surface water management permit to Russell E. and Marilyn F. Scott, and Caloosa Television Corporation for the construction and operation of a surface water management system to serve a television signal tower and control building in Southeast Lee County, Florida. There are no significant water resource impacts related to the management of surface water by the proposed project. The harm at issue in this case is the potential for wood storks and other wading to strike the tower and guy wires which are not structures related to management and storage of waters. The parties disagree as to whether the District has jurisdiction to consider the bird impacts related to collisions with the tower and guy wires, and if so, whether the tower and guy wires will have a significant adverse impact on the water resources of the state through a reduction of wood storks, an endangered species, and other wading birds which through feeding on fish remove biomass from such water, thereby maintaining water quality. In determining jurisdiction in this case, the parties disagree on the meaning of "works" and "surface water management system" as used in Chapter 373, F.S. and Rule 40E-4, F.A.C. The petitioners argue that since one set of guy wires will be placed across one end of the cypress wetland located on the subject property, the entire project including the guy wire and tower is a "works" and part of the surface water management system, which is subject to the permitting jurisdiction of the District. The District and respondent Caloosa Television Corporation contend that the tower and guy wires are not structures related to surface water management and are not "works" nor part of the surface water management system, and therefore, bird mortality, as a result of hitting the tower and guy wires, is not subject to the permitting jurisdiction of the District. FINDINGS ON EXCEPTIONS At the Governing Board meeting of October 6, 1988, the petitioners waived Findings of Fact exceptions 1 and 2 of Petitioners' Exceptions to Finding of Fact, Conclusions of Law, and Recommended Order. Therefore, Findings of Fact exceptions 1 and 2 are rejected. The petitioners' exceptions 1, 2, and 3 to Conclusions of Law of the Recommended Order are rejected as set forth in the District's Response To Exceptions Filed by Petitioners filed on September 27, 1988, and attached hereto as Exhibit B and made part of this Final Order. The Governing Board accepts the exceptions filed by the District and the respondent, Caloosa Television Corporation, as set forth herein under Conclusions of Law.
Findings Of Fact On or about September 14, 1987, Caloosa filed Application Number 09147- B, for a surface water management permit, with the District. This application was for the construction and operation of a surface water management system to serve a 1249 foot high television transmission tower and control building in southeast Lee County, Florida. The proposed location of Caloosa's project is approximately one mile north of the boundary of the Corkscrew Swamp Sanctuary, which is owned and operated by Audubon, and specifically, approximately two and one-half miles north of a wood stork colony located within the Sanctuary. This rookery is the largest rookery of wood stork, a federally endangered wading bird, in the United States. The project site is 60 acres in size, and approximately square in shape. It is improved agricultural land, with a circular cypress wetland of about 5.5 acres located near the center of the site. Extending outward from the cypress wetland are two ditches, one running due east and the other due west. The existing surface water flow varies with the seasons and intensity of storm events. During dry seasons, the rainfall runoff flows into the cypress wetland and percolates into the ground. However, during wet seasons, water builds up in the cypress wetland and flows into the two ditches. In larger storm events, the project site is entirely under water, and sheet flows occur to the southwest. The proposed project should have a negligible impact on the existing surface water system since the total impervious area will only be approximately one acre, or 1.7 percent of the total project area of 60 acres. The project consists of a radio tower and guy wires, a 3150 square foot control building, fill pad and parking area, guy wire anchor slabs, and approximately 1650 feet of lime rock road with an equalizer culvert to maintain existing flow. Three sets of six guy wires will extend from the 1249 foot high tower and connect to the ground at anchor slabs located near the edge of the project site. The entire project is located outside of the limits of the existing wetland, but one set of guy wires does cross the western edge of the cypress wetland. Caloosa proposes to use the tower as a "community tower" which will be capable of supporting more than one transmitting antennae. In addition to Caloosa's antennae, the tower will be able to support up to five commercial radio stations and up to sixty two-way communication antennae. Caloosa has had contacts from several commercial radio stations and governmental agencies which have expressed interest in co-locating their antennae on Caloosa's tower. After review of this application, District staff advised Caloosa, on November 23, 1987, that it was recommending approval of the application since it was felt that any impact from the project on wood storks would not result from the construction and operation of this project. At hearing, the District supported the issuance of this permit, but urged that the tower and guy wires are not a part of the surface water management system over which the District has any permitting jurisdiction. Audubon timely filed its request for a hearing on the District's intent to issue this permit, and at hearing opposed the issuance of this permit to Caloosa, urging that the tower and guy wires were an integral part of the surface water management system, and therefore subject to the District's permitting jurisdiction. The wood stork and other wading birds are an important link in the biological and ecological chain. They are the main mechanism for removing certain species of fish from ponds, lakes and waters of the state. If there is no predation by wading birds, then an increase in the biomass of the water system would be expected, water quality would decrease, and fish kills would result. Ponds that receive biomass reduction by wading birds have a reduction in fish biomass of approximately 75%, with no loss in species, while ponds that do not receive wading bird predation lose almost all individual aquatic animals through reduced water quality resulting from retention of up to 94% of the biomass from dead fish. The reduction in biomass is in direct proportion to the number of birds feeding in a pond, and therefore a 5% reduction in birds will result in a 5% lessening of the biomass reduction. Water quality will be reduced by a lowering of oxygen levels in such waters due to the excessive retention of nutrient laden biomass. During the nesting season, wood storks feed in various ponds and wetland areas that surround the rookery. Their primary feeding areas are within ten miles of the rookery. The proximity of these sites allow the birds to make several flights per day between the colony and the feeding site, and to do so with less energy expended than with feeding sites that are farther away. Caloosa's project site is located between the rookery and a primary feeding area to the north that is within ten miles of the rookery. The proximity of this feeding area allows the birds to fly low, at tree top level, to the site, without the use of thermal updrafts that they use to attain altitudes of up to 5000 feet when traveling greater distances. Thus, if the tower is built, it would be likely that wood storks would fly in the direction of, and at the height of, the tower to reach this primary feeding area. However, it was not established how many such birds actually feed in this nearby area, or how many fish are in these ponds and wetlands. The wood stork colony at Corkscrew Swamp Sanctuary has been experiencing a decline in productivity from approximately 6000 nesting pairs in 1960 and 1966, there has been a steady decline in the number of nesting pairs in the colony, and in 1987, there were no nesting pairs in the colony. During 1988, 750 nesting pairs have been observed. The steady decline in the wood stork colony population is the result of already existing developmental pressures and changes in drainage patterns which have adversely affected the birds' feeding habitats. For nesting to be successful, two adult birds are required per nest during the nesting season, which usually occurs from November to March. This allows one adult bird to be away from the nest obtaining food while the other adult keeps the nest warm and safe from predators. If a nest is left unattended through the loss of one adult bird, it is likely that the entire nest will be lost since the fledglings are very vulnerable throughout the nesting season to predators and changes in temperature. There are usually two or three fledglings per nest. For this reason, the loss of five adult birds per year, for example, results in a total loss to the colony of between ten to fifteen fledglings. This loss compounds each year, as birds lost one year are not available to reproduce in following years. Generally, transmission towers can pose a hazard to birds due to the potential for collisions. Illuminating such towers at night does not decrease this danger since the birds are simply attracted to lights. Strobe lighting has also been tried, but it appears that birds ignore, or are not deterred, by strobes. In this case, Caloosa has agreed to accept conditions placed upon the approval of this project by the Lee County Board of Zoning and Adjustments on March 16, 1987, which include placement of aircraft warning balls on the guy wires and the tower itself, habitat improvement including the creation of a wetland and a wildlife through way, if necessary, and commencement of a monitoring system to identify any problems with wood stork mortality as soon as possible. A very extensive study of bird kills and transmission towers was conducted over a thirty year period involving the WCTV tower in Tallahassee, Florida. The WCTV tower was found to kill 3.9 wading birds per year on average. Based in part upon this data, the U.S. Fish and Wildlife Service concluded that wood stork collisions with the tower will not result in significant mortality, and an "incidental take" of five wood storks per year should result. This is a level of mortality which is noteworthy, since any loss to an endangered species is significant, but is clearly below that which would cause jeopardy to the species. Although Audubon correctly pointed out that the conditions present in the WCTV study do not exactly match those present in this case, such as the fact that there are almost three times as many wading birds in the area of the Caloosa tower as were in the area of the WCTV tower, as well as the differences in the geographical relationship of the tower to nearby wading bird colonies and feeding areas, nevertheless, the WCTV study is relevant and should be considered by the District since it is the most exhaustive study of its kind ever conducted. Caloosa presented evidence of a study it conducted over approximately a one month period in May and June, 1988, of a comparable existing radio tower, the WHEW tower, located near the subject property to the east. Although substantial wood stork and other wading bird activity was observed around the WHEW tower, there were no collisions of wood storks with this 1010 foot high tower. While not a scientific study in the strictest sense, and although it was not conducted for as extensive a period as the WCTV study, nevertheless, the District should consider the WHEW study conducted by Caloosa since it involves a comparable tower in close proximity to the subject property, and the person who conducted the study for Caloosa and who testified at hearing, Robert E. Gatton, appeared particularly credible. The Federal Communications Commission has approved the location of Caloosa's tower. I5. The Florida Game and Fresh Water Fish Commission has recommended that the proposed location for Caloosa's tower be changed to an alternate site which would present a less serious obstacle to the Corkscrew wood stork nesting colony and other wading birds. This recommendation is based on the policy that the mortality of even one wood stork is too much and may present a danger to the population of the wood stork rookery. It was not shown, however, that a basis in fact exists for concluding that the loss of five or fewer wood storks per year would present such a danger. The Commission's recommendation is also based upon a concern that transmission towers will proliferate in the area, and thereby further interfere with the flight paths of wood storks and other wading birds to their feeding locations. However, the fact that Caloosa is seeking to construct a "community tower" to be shared with several governmental agencies, as well as broadcasting stations, will actually serve to decrease this potential proliferation. While there is a potential for wood storks or other wading birds in the area to be killed or injured by striking Caloosa's tower or the guy wires while in flight, the extent of this danger is speculative, but would not appear to exceed five wood storks per year. Under these circumstances, there would not be a significant threat to the population, or continued viability, of the Corkscrew rookery. It has not been shown, by the evidence in this record, that any loss of wood storks and other wading birds caused by this project will result in fish kills through a significant reduction of predation and the resulting failure to remove accumulated biomass in ponds and waters in the area. It was not demonstrated that a fish kill will, or is even likely, to occur. While the loss of five wood storks would result in a certain amount of biomass not being removed from the area's wetlands, nothing in the record suggests that this amount will have an adverse impact on the state's water resources or will otherwise be significant. Therefore, any relationship between the tower proposed by Caloosa and impacts associated with biomass accumulation is purely speculative and de minimis. Fish kills occur naturally as water levels in seasonal marshes and ponds lower in the dry season. The water quality impact of such kills is relatively short-lived, lasting up to two months or until the next wet season begins, at which time water quality parameters return to normal. The evidence produced at hearing does not establish that the project and its surface water management system will have any significant or measurable effect on drainage of surface water runoff from the subject property, or on adjacent properties. The drainage system proposed by Caloosa will utilize the existing ditches and the natural cypress pond on the property. It was established that the post-construction effect of the project on drainage would be insignificant. There are, therefore, no drainage impacts associated with this project.
Recommendation Based upon the foregoing, it is recommended that the District enter a Final Order approving Caloosa's application for surface water management permit number 09147-B, subject to the conditions, agreed to by Caloosa, which were imposed by the Lee County Board of Zoning and Adjustment in its approval of this proposed development. DONE AND ENTERED this 29th day of August, 1988, in Tallahassee, Leon County, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5578 Rulings on Audubon's Proposed Findings of Fact: 1. Adopted in Findings of Fact 1, 3. 2-3. Adopted in Finding of Fact 4, but otherwise Rejected as a conclusion of law rather than a finding of fact. 4-5. Adopted in Finding of Fact 5, but otherwise Rejected as unnecessary, irrelevant and as a summation of testimony. 6. Adopted in Finding of Fact 2. 7-8. Adopted in Finding of Fact 7. 9-10 Adopted in Finding of Fact 8. 11. Adopted in Finding of Fact 11. 12-15. Adopted and Rejected, in part, in Finding of Fact 12. Adopted in Findings of Fact 8, 10, but otherwise Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 9. Adopted in Findings of Fact 10, 12, but otherwise Rejected as cumulative and as argument on the evidence. Rejected in Finding of Fact 13, and otherwise as simply a summation of the testimony and argument on the evidence. 20-21. Adopted in Finding of Fact 6. 22-23. Rejected in Findings of Fact 15-17. 24. Adopted in Finding of Fact 15. Rulings on Caloosa's Proposed Findings of Fact: Adopted in Findings of Fact 1, 2. Adopted in Finding of Fact 4. Adopted in Finding of Fact 13. Adopted in Finding of Fact 1. Adopted In Finding of Fact 5. Adopted in Finding of Fact 19. Adopted in Finding of Fact 5, but otherwise Rejected as a conclusion of law and as simply a summation of testimony. Adopted in Finding of Fact 16. 9-10. Adopted in Finding of Fact 12. Adopted in Findings of Fact 12, 13. Adopted in Finding of Fact 11. Adopted in Findings of Fact 4, 15. Adopted in Finding of Fact 6. 15-16. Adopted in Finding of Fact 17. 17. Adopted in Finding of Fact 18, but otherwise Rejected as irrelevant and as cumulative. Rulings on the District's Proposed Findings of Fact: 1-2. Adopted in Finding-of Fact I. 3. Adopted in Finding of Fact 2. 4-5. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 3. Adopted in Finding of Fact 8. Adopted in Findings of Fact 12, 14, 16. Adopted in Finding of Fact 12. 11. Adopted in Finding of Fact 13. 12. Adopted in Finding of Fact 16. 13. Adopted in Finding of Fact 15. 14. Adopted in Finding of Fact 11. 15. Rejected as irrelevant. 16. Adopted in Finding of Fact 11. 17. Adopted in Finding of Fact 6. 18-19. Adopted in Finding of Fact 5. COPIES FURNISHED: Charles Lee Senior Vice President Florida Audubon Society 1101 Audubon Way Maitland, Florida 32751 Russell P. Schropp, Esquire Post Office Box 280 Fort Myers, Florida 33902 James K. Sturgis, Esquire Post Office Box 24680 West Palm Beach, Florida 33416 John R. Wodraska Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416 =================================================================
Findings Of Fact Petitioner is the record owner of Lot 11, Block 4 and Lot 12, Block 2 of Ramrod Shores Marina Section subdivision on Ramrod Key in Monroe County, Florida. These lots lie across Angelfish Road from each other. They both lie across Mariposa Road from Torch Ramrod Channel which leads into Niles Channel which leads into the Gulf of Mexico to the north; to the south Torch Ramrod Channel leads into Newfound Harbor which opens onto the Atlantic Ocean. Mariposa Road appears on a subdivision plat filed in the official records of Monroe County in 1960, and on revisions of the original plat, one of which was filed in 1963, and the more recent of which was filed in 1969. On the two earlier plats, it is recited that "[r]oads shown hereon not previously dedicated or owned by the State or County are hereby dedicated to the perpetual use of the public." The evidence did not show whether Monroe County or any other governmental body had accepted the dedication of Mariposa Road. Cape Sable Corporation, a predecessor in title to petitioner, trucked in oolite fill to construct Mariposa Road; and repaired the road after occasional washouts, a practice which petitioner's immediate predecessor in title, James Brown, continued. Because the rock which was used to build Mariposa Road is loosely packed, water from the channel percolates through the road even when it is not high enough to move across the road in a sheet, which sometimes happens. There are also low lying places in the road through which tidal waters flow onto petitioner's property. Salt water up to a foot deep regularly stands on petitioner's property, which is overgrown with spider mangroves and red mangroves. The mangroves stabilize the shoreline on account of their root systems, which also serve to filter out certain substances which would otherwise run off into the channel. Decaying plant matter produced by the mangroves supports various microorganisms which constitute an early link in the food chain that results in commercial fisheries. Killifish, needlefish, jelly fish and wading birds all frequent petitioner's property in its present state. Covering petitioner's lots with fill would destroy or displace the marine life now flourishing there. Respondent has requested James Brown to remove the fill along Mariposa Road, citing Chapter 403, Florida Statutes, and the Army Corps of Engineers has taken similar action under applicable federal laws. Mr. Brown evinced an intent at the hearing not to comply with these requests, but to work instead to persuade Monroe County to blacktop Mariposa Road. Paving Mariposa Road with blacktop would involve compacting rock or otherwise creating an underbed impermeable to water. Mr. Brown envisions Mariposa Road being upgraded to the level of State Road 4, which it intersects, before being paved. If Mariposa Road were upgraded and paved in this fashion, it would act as a dam keeping tidal waters out of petitioner's lots, unless culverts were installed. In the event Mariposa Road is upgraded and paved and no culverts are installed, the marine habitat which now exists on petitioner's property would be doomed and filling the lots would hasten the process at worst.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioner's application for fill permit unless and until Mariposa Road is upgraded, without installation of culverts, and paved, so that it acts as a dam impervious to the waters of Torch Ramrod Channel. DONE and ENTERED this 17th day of February, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 904/488-9675 COPIES FURNISHED: Mr. Edward B. Johnson, Jr., Esquire 410 Fleming Street Key West, Florida 33040 Mr. Louis F. Hubener, Esquire Montgomery Building 2562 Executive Center Circle East Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION FRANCIS X. ATWATER, Petitioner, vs. CASE NO. 77-1409 DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
The Issue Whether or not Petitioner is entitled to a dredge and fill permit to construct a dock and seawall by provision of reasonable assurances that the project is in the public interest.
Findings Of Fact On May 8, 1989, the Petitioner, Kathryn Haughney, applied to DER for a permit to construct a dock and seawall on the shore of the Halifax River in Volusia County. The portion of the Haughney property where the dock and seawall would be constructed is separated from the Haughney home by John Anderson Drive, which parallels the river's edge and is separated from the river by a ribbon of undeveloped property at that location and to the south. A house is located at water's edge on the lot to the north of the proposed construction site. The Haughney home itself is set well back from John Anderson drive on the side of the street away from the river. The Halifax River is classified as a Class III water body under DER rules. The particular part of the Halifax River where the Haughney property is located and where the dock and seawall are proposed is also within the Tomoka Marsh Aquatic Preserve, which is an Outstanding Florida Water under DER rules. The dock as proposed by Petitioner will be 320 square feet. DER denied the permit application on July 19, 1990, but in so doing did not deny the application on the basis of the proposed dock, which, because of its dimensions, is exempt from DER permitting requirements. The seawall as proposed is to be 137 feet long. Petitioner applied to extend it 16 feet out into waters of the state at the northern end, gradually increasing to 34 feet into waters of the state at the south end. Additionally, 5 feet of riprap would also extend out into waters of the state along the seawall's entire length. The waters of the state that would be filled by the proposed seawall contain lush wetland vegetation that provides habitat for a number of macroinvertebrate species which are part of the food chain feeding fish and wading birds such as egrets and herons. Fiddler crabs and colonies of mussels have been observed on the site. The area to be filled provides a valuable habitat for fish and wildlife. There was no mitigation offered by Petitioner to make up for the loss of habitat to be occasioned by the proposed construction. Although Petitioner asserted DER had named no "endangered species" and that the Environmental Protection Administration had not designated this area as "endangered," those federal concerns were not at issue. If such federally designated species or location designation existed in the locale, it might militate against granting this application for permit, but in the negative, it is irrelevant. A vertical seawall exists immediately north of Petitioner's shoreline. The shoreline to the south remains undeveloped. (See Finding of Fact 2). Construction of seawalls, especially those that extend out from the existing shoreline, typically causes erosion on adjacent shorelines, and additional seawalls exaggerate wave energy and can have a cumulative erosive effect. The foregoing fact is found in reliance upon the testimony of Don Medellin, an Environmental Specialist II for DER, and Barbara Bess, an Environmental Manager for DER, both accepted as experts in environmental aspects of dredge and fill permits. The assertion that actual erosion on the property to the south has already occurred was contained in a letter from Petitioner's southern neighbor (DER Exhibit 6). Petitioner's representatives objected to consideration of this exhibit as "hearsay." They are correct and current erosion to the south is not found as a fact. Nonetheless, actual erosion in a pocket on the north end of Petitioner's shoreline has been shown by the direct testimony of Emmett and Martha Haughney, who assert that their property is eroding due to the existing seawall and that Petitioner wants a permit for a seawall to alleviate this erosion. Their evidence is confirmed by the personal observations and testimony of Mr. Medellin and Ms. Bess. Further, upon their testimony, it is accepted that this minimal pocket of erosion is most likely due to the existing seawall to the north and that if the Petitioner builds a seawall to the specifications now set out in the permit application, there is potential for similar and perhaps cumulative erosion to the shoreline to the south of Petitioner's lot. Neither the city nor county involved has land use restrictions which would prohibit Petitioner's proposed seawall except that Volusia County advocates riprap requirements if this permit application were granted. In its Notice of Permit Denial, DER advised Petitioner as follows: The Department has determined that the follow- ing changes to the project may make the project permittable: The vertical seawall should be eliminated and replaced with coquina rock riprap revet- ment. The riprap should be located further landward and conform to the slope of the existing embankment. Backfilling on the north property line is acceptable provided the fill area does not extend more than 10 feet westward in the most eroded area. Accordingly, the riprap could extend to the adjacent seawall and gradually extend in a more landward direc- tion to prevent excessive elimination of the littoral zone vegetation. Whatever alternative the applicant elects to choose, the removal or elimination of littoral zone vegetation must be offset in the form of mitigation if the impacts can not be reduced any further. Finally, the agent should eliminate the use of generic drawings which must be continually revised. All drawings should reflect the existing and proposed conditions and the impacts associated with the project. Petitioner's contractor, Andy Harris, testified to other alternatives that could be used by Petitioner in constructing her seawall, but the evidence of Mr. Medellin and Ms. Bess is persuasive that the alternative measures proposed by Mr. Harris would not provide the reasonable assurances the law requires DER to obtain from Petitioner.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order affirming its July 19, 1990 Notice of Permit Denial. RECOMMENDED this 25th day of April, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7215 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's letter to Hearing Officer (filed March 22, 1991) The first paragraph complains that a VCR was unavailable in the hearing room so that Petitioner's videotape could not be shown. Petitioner should have made arrangements for showing the tape and did not. Likewise, Petitioner never offered the tape in evidence (for viewing by the Hearing Officer afterwards in preparation of this Recommended Order). Therefore, it very properly was not considered. The next 3 paragraphs refer to the Casden letter (DER Exhibit 6), which is covered in FOF 8-9. The remaining paragraphs are rhetoric and legal argument upon which no ruling need to made under Section 120.59(2) F.S.; however, they are alluded to in the Conclusions of Law. Petitioner's letter to DER Counsel (filed March 25, 1991 by DER, suggesting it was Petitioner's proposed findings of fact) 1-3 For the reasons set out above, the Petitioner's videotape was not considered. The subject of erosion to the degree proved at the hearing is covered in the Recommended Order. 4-5, PS 1-3 Mere rhetoric and legal argument upon which no ruling need be made under Section 120.59(2) F.S.; covered in the Conclusions of Law to the degree appropriate. Respondent's PFOF: 1-11 Accepted as modified to reflect the greater weight of the credible and probative record evidence as a whole. That which is rejected is rejected as not proven or not persuasive. Unnecessary or irrelevant material has likewise been excluded. COPIES FURNISHED: Douglas MacLaughlin Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kathryn Haughney 2301 John Anderson Drive Ormond Beach, FL 32074 Emmett and Martha Haughney 2301 John Anderson Drive Ormond Beach, FL 32074 Carol Browner, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
