Findings Of Fact On July 19, 1991, the Petitioner, Cahill Pines and Palm Property Owners Association, Inc. (Cahill), filed a permit application with the Department of Environmental Resources, predecessor to the Respondent, Department of Environmental Protection (Department), for a permit to remove two earthen plugs in the Cahill canal system, located in Big Pine Key, Monroe County, Florida. The plugs were to be removed to a depth of -5.5 feet N.G.V.D. Kenneth Echternacht, a hydrologist employed by the Department, had performed a hydrographic review of the proposed project and reduced his findings to writing in a memorandum dated June 25, 1993. Mr. Echternacht recommended that the project not be permitted. On August 20, 1993, the Department issued a notice of its intent to deny Cahill's application to remove the plugs. The notice included six proposed changes to the project which would make the project permittable. Cahill requested an administrative hearing on the Department's intent to deny the permit. On March 3 and 4, 1994, an administrative hearing was held on the issue of whether a permit should be issued. The hearing officer entered a recommended order on May 9, 1994, recommending that a final order be entered denying the permit. The Department issued a final order on June 8, 1994, adopting the recommended order of the hearing officer and denying the permit. See Cahill Pines and Palm Property Owners Association v. Department of Environmental Protection, 16 F.A.L.R. 2569 (DER June 8, 1994). In the final order the Department found that the following findings of Mr. Echternacht were "scientifically sound and credible conclusions": The estimated flushing for the presently open portion of the waterway was calculated to be 14.5 days. The flushing for the open section exceeds the 4 day flushing criterion by approx- imately 3.6 times. Clearly, the open portion poses a potential problem to the maintenance of acceptable water quality. For the presently closed sections of the waterway, the calculated flushing time was found to be 38.6 days. Again, this system would pose a significant potential for contamination to adjacent open waters if opened for use. The waters behind the barrier that presently appear to pose no problem would clearly become a repository for contaminants associated with boat usage. Because of the exceptionally long flushing time, contaminants would build up over time. Below standard water quality throughout the waterway would be expected and, associated with this, below standard water would be exported into adjacent clean water on each ebbing tide. The final order also found the following facts: 13. Neither the water in the open canals nor the water in the closed canals is presently of substandard quality. * * * Petitioner's plug removal project will also spur development in the Cahill subdivision and lead to an increase in boat traffic in the Cahill canal system, as well as in the adjacent waters of Pine Channel. Such activity will result in the discharge of additional contaminants in these waterways. As Echternacht stated in his June 25, 1993, memorandum that he sent to O'Connell, '[b]ecause of the [canal system's] exceptionally long flushing time, [these] contaminants would build up over time' and result in a significant degradation of the water quality of not only the Cahill canals, but also of Pine Channel, into which Cahill canals flow. This degradation of water quality will have an adverse effect on marine productivity and the conservation of fish and wildlife that now inhabit these waterways. Consequently, in the long run, the removal of the plugs will negatively impact fishing opportunities in the area. On the other hand, the project will have a beneficial effect on navigation and recreational boating and related activities. It will have no impact on historical and archaeological resources. On April 10, 1995, Cahill submitted a permit application to the Department to remove portions of the two canal plugs. Cahill proposed to leave an island in the center of each plug. The islands would be stabilized with riprap, and mangrove seedlings would be planted in the riprap. By letter dated April 21, 1995, the Department returned the April 10 permit application to Cahill along with the $500.00 processing fee. The Department advised Cahill that the application was not substantially different from the 1991 permit application which was denied by final order. The Department further advised that Cahill could resubmit the application and application fee if it wanted the permit to be processed but the Department would deny the application on the basis of res judicata. On May 17, 1995, Cahill submitted a revised permit application along with the processing fee. A circulation culvert had been added to the project. Ken Echternacht performed a hydrographic review of the proposed project. In a memorandum dated May 25, 1995, Mr. Echternacht recommended that the permit be denied for the following reasons: The proposed 24-inch culvert connection would not be expected to be visible hydraulically. A 24-inch diameter culvert, length 181 ft would be expected to have a friction factor several orders of magnitude greater than the adjacent canals. As such, water would not be expected to pass through the connector unless there were a sizeable head to drive the flow. No studies and/or supporting documentation have been provided to support the design in terms of the documenting the amplitude and repeatability of the flow driving force. Cutting holes through embankments do not necessarily result in flushing relief. As stated in 1, above, any and all proposed design modifications to the proposed waterway must be accompanied by adequate design justifi- cation based on hydrographic modeling supported by site specific data support. The culvert design proposed does not meet the above require- ment. The proposal is nothing new. In the hearing, ideas such as the above were suggested. However, as was stated in the hearing any and all such proposals must be supported by proper engineering study. On July 7, 1995, the Department issued a Notice of Permit Denial, denying the May, 1995 permit application on the basis of res judicata, stating that the May 1995 permit was not substantially different from the 1991 permit application which had been denied and that no studies had been submitted by Cahill that would support that the use of the islands and culvert would increase the flushing rate to the four day flushing criterion established in the hearing on the 1991 permit application. At the final hearing counsel for Cahill stated for the record that the use of the islands and the culvert would not increase the flushing rate to four days.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Cahill Pines and Palms Property Owners Association, Inc.'s application for a permit to remove two plugs separating the open and closed canal sections of the Cahill canal system, placing an island in the center of each plug, and adding a 24 inch culvert connection. DONE AND ENTERED this 31st day of July, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4377 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-7: Accepted in substance but not necessary to be incorporated in the recommended order. Paragraph 8: The evidence presented showed that there is a dispute of whether the waters are now of substandard quality. For the purposes of this hearing, it is not necessary to determine whether the water quality is presently substandard. Based on the assumption that the water quality is not substandard, Petitioner has failed to show that the change in the design of the project is sufficient to warrant the rejection of the applicability of the doctrine of res judicata. Petitioner has failed to show that the addition of islands and a culvert will eliminate the potential for future contamination of the waters. The second sentence is accepted in substance but not necessary to be incorporated in the recommended order. Paragraphs 9-11: Accepted in substance but not necessary to be incorporated in the recommended order. Paragraphs 12-15: Accepted in substance to the extent that for the purposes of this hearing the water quality is assumed not to be substandard. Paragraph 16: Rejected as unnecessary. Paragraphs 17-27: Rejected as subordinate to the finding that for the purposes of this hearing the present water quality is assumed not to be substandard. Paragraphs 28-30: Accepted in substance. Paragraph 31: Accepted in substance to the extent that the changes in the design will not increase the flushing rate to four days. Paragraphs 32-33: Accepted to the extent that they were findings in the final order on the 1991 application. Paragraphs 34-35: Accepted to the extent that the slow flushing rate is one of the criteria to be considered. The increase of development and boat traffic are also contributors to the potential of contamination building up. Petitioner has not demonstrated that the use of islands and a culvert will eliminate the potential for contamination. Respondent's Proposed Findings of Fact. Paragraphs 1-10: Accepted in substance. Paragraphs 11-14: Rejected as unnecessary. Paragraph 15: Accepted in substance. Paragraph 16: Accepted in substance as corrected. Paragraph 17: Accepted. Paragraphs 18-21: Accepted in substance. Paragraph 22: Accepted. Paragraph 23: Rejected as unnecessary. COPIES FURNISHED: David Paul Horan, Esquire Horan, Horan and Esquinaldo 608 Whitehead Street Key West, Florida 33040-6549 Christine C. Stretesky, Esquire John L. Chaves, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kenneth J. Plante, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard, Douglas Building Tallahassee, Florida 32399-3000
Findings Of Fact Both Hewitt Contracting Company, Inc., (Hewitt), and Vogel Brothers Building Company, (Vogel), submitted a bid on Florida Department of Transportation, (FDOT) project number 105003631, for the construction of a minor bridge in Hillsborough County, Florida. Both Hewitt and Vogel had been pre-qualified by FDOT to bid on its projects, The determination of pre-qualification was done for FDOT by Charles Goodman, a registered professional engineer. Pre-qualification is not done on a project by project basis but instead is determined on a particular work category in advance. Vogel was low bidder for the project in issue and Hewitt was second low bidder. Hewitt timely filed a notice of protest and formal protest based on its claim that Vogel was not properly pre-qualified for minor bridge construction. Vogel has no experience building bridges for FDOT or for any other state and the instant project was the first project for FDOT in which Vogel had bid as a prime contractor. However, the company has been in business in Wisconsin since the 1920's and has performed numerous construction projects at various locations throughout the country. Those that have required heavy pouring of concrete have been primarily parking garages, pedestrian walkways, and wastewater treatment plants. Within those types of categories, several construction techniques were used which are similar if not identical to those used in bridge building. Vogel has, however, no pile driving experience which would be used in this project. Vogel does not own all of the equipment that would be necessary to construct this project. Ownership is not required, however, so long as the applicant is willing and able to provide the equipment through other means such as lease or rental. Though Vogel has presented no evidence of specific rental agreements, it has the financial capacity to rent the required equipment and there is little doubt it could do so. By the same token, Vogel does not currently employ any personnel in Florida who have experience in the construction of bridges similar to the project under consideration nor does the company presently employ any professional engineers totally registered as such in Florida. It does, however, employ professional engineers registered elsewhere with experience that would be pertinent to this project and, as it has done in the past, would, if necessary, bring those personnel to Florida to assist in this project. During the time Mr. Goodman was performing as a qualification engineer, he reviewed all 900 contractors doing business with FDOT at least twice and some, three times. In performing the qualification review, he looked only at the applications of the various contractors and did not talk to any of the company representatives. By the same token, he did not discuss the applications with anyone in the department. The decision on approval was his alone. Mr. Goodman was aware of Vogel's prior experience and the fact that it had constructed several pedestrian overpasses and recognized that the company's experience with the classical type bridge such as is involved here is limited. However, he was satisfied that while Vogel does not own all of the equipment necessary for completion of this project, it does own enough equipment to complete part of the work and the remainder of the items on the FDOT equipment list which it does not own, it can procure from outside sources. He is also aware of the fact that Vogel does not have any experience driving piles of the size required for this project. It does, however; do mass pours of concrete and is involved in larger construction projects such as water and sewage treatment plants. Most of its experience is in the construction of commercial buildings in Wisconsin. In his analysis, Mr. Goodman used an evaluation sheet in conjunction with the table contained in Rule 14-22, F.A.C., to come up with an ability factor. This does not, however, have any substantial impact on approval. In the instant case, out of a possibility of 25 points, Vogel was awarded 0 points on bridge construction as it pertained to both completed and ongoing projects. In fact, Vogel was awarded points only in those experience areas not related to bridge projects. As to organization and management, it received 10 points in each out of a possible 15 points for each. These awards related to the company's skills in general. Since Mr. Goodman's consideration was based only on what was contained in the application, he does not know if any personnel have experience in constructing bridges as are called for in this project. His decision was based on his conclusion that Vogel had done similar work on other projects equivalent to the least of the qualifications for bridges, (pedestrian overpasses, parking garages, and water plants), which involved techniques similar to those used in construction of the least complex bridge. This information upon which Mr. Goodman relied came from Vogel's brochure and he is not personally aware of the projects or when and where they were constructed. The FDOT policy was to require an applicant to meet the equipment and experience even for minor bridges, and in this case, in Mr. Goodman's opinion, Vogel, which had built box culverts which are legally defined as a minor bridge at a low level, qualified. In making their analyses, FDOT evaluators are required to look at minimums, not optimums, and Vogel's experience, in the opinion of Mr. Goodman, satisfied the requirements at the lowest level. Even though this project involved procedures it had not previously done, Vogel's qualification was determined on the basis of general requirements and not on the basis of the specific requirements of this project which had not been identified at the time qualification was established. Mr. Goodman did not verify any of the statements made in Vogel's application with Vogel or any other individual, nor did he attempt to contact any reference or other party to inquire regarding Vogel's ability to construct the project. Mr. Goodman's decision to qualify Vogel was reviewed, prior to the hearing, by Mr. Kayser, the current qualification engineer for FDOT. He looked at Vogel's application and based on what he saw, (their ability to procure the required equipment; the types of projects they have completed in the past; and the intricate techniques involved therein), is of the opinion that Vogel is capable of completing this project successfully. If he were doing a qualification evaluation on Vogel today, he might require some verification of certain items, and request evaluations of the quality of the work they have done, but that would be all. The fact that most of the work Vogel has done is out of the state does not bother him, nor does the fact that the contractor is from out of state. Many of the successful contractors with whom FDOT has done business are in the same category. Had Vogel built only buildings, he might have had some concern. However, the diversity of their projects, including many where the work and techniques used are similar to that used in bridge construction, makes him comfortable with them, and he would not attempt to decertify or disqualify Vogel. In support of Petitioner's point of view, Mr. Andrew Clark, executive vice president of a general contracting firm specializing in heavy bridge construction, feels Vogel does not have the experience to construct bridges, major or minor. While it can pour concrete, it does not have the people qualified and necessary to do bridge work. There is more to building a bridge than pouring concrete and Vogel does not appear, to Mr. Clark, to have the experience or equipment sufficient to properly finish the concrete surface. For example, though it might be able to rent a screed, it does not have the people qualified to use it properly. It does not have the experience to drive piles and it does not have the equipment necessary to do that job nor do its proposed suppliers of rental equipment. Mr. Clark, however, is a competitor and was, in fact, a bidder on this project. In the event the award to Vogel is set aside and a re-bid authorized, Mr. Clark's company would be in a position to bid again. Mr. Clark also looked at the equipment listed in Vogel's brochure and determined that most of the equipment on that list is not used in construction of either major or minor bridges. By the same token, the projects listed on Vogel's experience list do not qualify it to do bridge work since they are not similar and the techniques utilized therein are not necessarily the same. Mr. Clark is of the opinion that the project in issue is not the typical minor bridge project. The design is somewhat different and requires the use of different techniques. He feels Vogel's experience would not prepare it to successfully accomplish the project. Though FDOT follows up its award by numerous inspections during the construction phase, in his opinion these inspections are inadequate since they generally relate to the materials being used by the contractor and not to the contractor's workmanship. Mr. Clark's opinions are supported by those of Mr. Barrett, president of another construction company which deals primarily in bridge construction. In Mr. Barrett's opinion, Vogel's experience in construction of water and sewage treatment plants and parking garages does not qualify it to build bridges since the company has no expertise in the techniques need for that type of construction. Petitioner has been qualified to do minor bridge construction since 1962 and has constructed approximately 75 minor bridges within this state. It's personnel include numerous people who have extensive experience in pouring bridge decks and driving bridge pilings. It has the needed equipment, including cranes, pile drivers, welding equipment, and screeds, and more important, the experienced people who know how to use it properly. Having reviewed Vogel's prior projects and equipment owned, Petitioner's owner, Mr. Hewitt, cannot see where Vogel is qualified by experience or equipment to do bridge construction. In his opinion, Vogel is a building contractor, not a bridge builder. He is satisfied that the skills developed in general contracting do not qualify an individual to do bridge work. These skills are different, and the level of subcontracting is different. In addition, construction standards and tolerances are much stricter in bridge projects than in other general contracting projects. Petitioner raises a legitimate question regarding Vogel's ability to do this particular job. However, it's evidence is in the form of testimony of individuals who, though individuals of long experience in their fields, were not offered as experts in the area. Further, all except one, have an interest in the outcome of this case. On the other hand, Vogel has been shown to be a competent and successful builder and there is no evidence to show that the pre- qualification process utilized by FDOT here was either inappropriate or improperly applied.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered awarding the contract on State Project No. 105003631 to Vogel Brothers Building Company. RECOMMENDED this 24th day of August, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 24th day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2898BID 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 to this case. FOR THE PETITIONER 1. & 2. Accepted and Incorporated herein 3. & 4. Accepted and Incorporated herein 5. - 8. Accepted and Incorporated herein Accepted except for the statement that letters from rental companies were not submitted & 11. Accepted and Incorporated herein 12. - 14. Accepted and Incorporated herein Accepted but not probative of any material fact & 17. Accepted but not probative of any material fact Accepted but incomplete Rejected as contra to the weight of the evidence Rejected as a comment on the evidence and not a Findings of Fact Accepted but not probative of any material fact Rejected as irrelevant & 25. Rejected as contra to the weight of the evidence Accepted but not probative of any material fact FOR THE RESPONDENT AND INTERVENOR 1. & 2. Accepted and incorporated herein 3. & 4. Accepted and incorporated herein & 7. Accepted and incorporated herein Accepted and incorporated herein Accepted & 11. Accepted and incorporated herein Accepted Accepted and incorporated herein Not established Accepted but not probative of any material fact Accepted and incorporated herein Accepted and incorporated herein COPIES FURNISHED: Crit Smith, Esquire 215 South Monroe Street Tallahassee, Florida 32301 Brant Hargrove, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32302 Ronald E. Cotterill, Esquire 1519 North Dale Mabry, S-100 Lutz, Florida 33544 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact Seago Group, Inc., the Applicant/Intervenor, owns a tract of land in Lee County Florida, which is completely surrounded by creeks and canals, including Indian Creek on the north. The Intervenor intends to develop the parcel and is seeking a permit from the Department to construct a bridge over Indian Creek to provide access. There is presently a cul-de-sac at the end of Indian Creek Drive on the north side of the creek. The bridge would extend Indian Creek Drive over the creek onto the applicant's property. The Intervenor held an option to purchase land for the right-of-way on the north side of the creek. The Petitioners own property adjacent to Indian Creek Drive. The Petitioner Helwig owns property upon which be resides, and which adjoins the proposed bridge site. The Petitioner Rowe owns property upon which he resides several lets up Indian Creek Drive from the proposed bridge site. The Intervenor originally made application to construct a road over Indian Creek at a different, but nearby location using a culvert rather than a bridge. The Department's staff appraised the application and recommended that it be denied because deposits of fill around the culverts would have eliminated productive submerged creek bottoms, interfered with the ability of the aquatic habitat to support fish and wildlife populations, and eliminated shoreline vegetation which serves to filter runoff which enters the creek, thus helping to preserve good water quality in the creek. The application was withdrawn by the Intervenor before final action was taken on the Department's staff recommendations. The Intervenor thereafter filed the instant application. The application was to construct: ... A 26 ft. wide by 50 ft. long vehicular bridge constructed with 21" prestressed slabs on pile bent abutments over Indian Creek in Lee County, Florida. The application further provided: All work will be conducted on upland with no need for any equipment or material required to be in the water. All equip- ment and material will be delivered by upland access. The application did not reflect that Intervenor had previously sought a permit for the culvert constructions, but the Department was clearly aware of the previous applications and its appraisal of the bridge application was treated as a supplement to the appraisal of the culvert application. In its Notice of Intent to Issue the Permit, the Department erroneously designated the bridge as a "two-span" bridge. The application is actually for a one-span bridge. In its notice the Department added the following specific conditions: Turbidity screens shall be used during construction. Drainage at bridges approaches shall be by swale and no ditches shall be constructed. Drainage shall meet county specifications. No dredging or filling in Indian Creek. No bridge construction shall take place until ownership or easement is obtained through Mr. David Ruch's property pursuant to letters on file with the Department. The Intervenor has acceded to the specific conditions and agreed to comply with them in the event the permit is ultimately issued. All of the pilings for the proposed bridge would be constructed at or above the mean high water line of Indian Creek. Some turbidity could be expected during construction, however, the use of turbidity screens would eliminate any significant impact upon the water quality, fish and other wildlife resources of Indian Creek during construction. The only potential source of pollution from the bridge after construction would be from runoff entering Indian Creek from the bridge. The amount of runoff that would result from a 50 ft. long by 26 ft. wide bridge is negligible. The limited impact that such runoff could have upon the creek can be eliminated by having drainage flow through a swale system. Since the Intervenor has agreed to utilize a swale system, it does not appear that the bridge would have any adverse impact upon the water quality of Indian Creek or any other water body. Neither does it appear that the bridge would adversely affect fish and wildlife resources. Since all bridge pilings would be constructed at or above the mean high water line, transitional zone vegetation can continue to flourish along the shoreline. The planned clearance between the creek elevation at mean high water and the bridge is seven feet. The bridge would thus impede traffic by any boats that protrude more than seven feet above the water line. This presents no significant navigational impact in Indian Creek. There are two avenues for navigating from the bridge site on Indian Creek to the Caloosahatchee River. One of these avenues is presently obstructed by a bridge with an elevation less than that proposed by the Intervenor. The other avenue is obstructed by a very shallow area that will not permit navigation by other than very small vessels. The Department in the past has denied applications to dredge that shallow area. The Intervenor and the Department have submitted Proposed Findings of Fact. To the extent that these proposed findings have not been included in the foregoing Findings of Fact, they are hereby adopted as fully as if set forth herein.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: The respondent Mariner Properties, Inc., also referred to herein as the "applicant", is the owner of South Seas Plantation, a vacation resort located on Captiva Island. This resort development comprises some 300 acres, with two miles of gulf-front beaches and four miles of bayfront. Located on the northern end of the Island is an existing large yacht basin or marina with facilities for docking boats up to 100 feet in length. While this marina does have slips for about eight small boats (under 24 feet in length), the facility is not well suited for the docking of small boats because of the height of the docks. Fueling services are available at this marina and an active search and rescue service operates out of the marina, with no charge to boaters in distress. A smaller boat basin exists on the southern portion of the Island, which basin was enlarged by the applicant pursuant to a permit issued by DER in 1975. The applicant has also been granted a permit to construct boat docking facilities within the small boat basin. Finger slips for about 43 small boats - - up to 24 feet in length, are planned, but construction has not yet begun. The small boat basin will not have fueling facilities for the boats. If the requested permit is granted, the rescue service which operates out of the larger yacht basin plans to dock one of its service boats in the small basin. The small basin will also serve as a refuge area for small boaters during a storm or inclement weather. In May of 1977, Mariner Properties, Inc., submitted its application to the DER to modify an existing permit by dredging an access channel to connect its small boat basin to the waters of Pine Island Sound. In its present modified form, the applicant requests a permit to maintenance dredge a channel 250 fee long, fifteen feet wide, to a depth of -3.0 feet, mean low water. Approximately 195 cubic yards of material will be excavated to construct this channel and the spoil will be unloaded on an upland area. The project will involve the destruction of almost 4,000 square feet of seagresses. Mr. Kevin Erwin, an environmental specialist with the Department of Environmental Regulation, made site inspections and performed a biological assessment of the area as it relates to the proposed project. It was his conclusion and recommendation that the application be denied based on the expected significantly adverse immediate and long-term impacts upon water quality and marine resources. Mr. Erwin was concerned with the elimination of almost 4,000 square feet of productive vegetated estuarina bottoms. Seagrasses provide an essential habitat to many marine species, act as an important nursery and feeding ground for young fish and shrimp, stabilize marine bottoms and contribute nutrients to the foodweb. The witness further felt that there was a potential for water quality violations within the channel. Mr. Erwin did observe cuts or propeller scars in the grass beds adjacent to the proposed channel. Such cuts or scars take a long period, up to fifteen years, to heal. He felt that boat traffic to and from the small boat basin should be restricted by a marked easement, as opposed to a dredge channel. Mr. Erwin's District Manager, Phillip R. Edwards, reviewed the subject application and observed the area in question. It was his oral recommendation to Tallahassee that the permit be granted. Mr. Edwards observed the seagrass cuts in the area adjacent to the proposed dredging project and concluded that more damage would result without a channel. While Mr. Edwards agreed that a potential for water quality standards existed, he felt that a channel would minimize the overall damage caused by boats continuing to travel over the adjacent seagrass areas. Mr. Forrest Fields, an environmental specialist with DER, reviewed the present application and Mr. Erwin's biological assessment of the area. He did not concur with Erwin's conclusion regarding violations of water quality standards, and felt that the applicant had given reasonable assurances to the contrary. Mr. Fields was of the opinion that a minimal channel would be less damaging to grass beds than the uncontrolled ingress and egress of boats utilizing the small boat basin. The public interest concerns of the basin being opened to the boating public and the basin being used by a rescue service without charge to boaters in distress were also expressed in the notice of intent to issue the permit prepared by Mr. Fields. Mr. Ross McWilliams, an environmental specialist with DER who reviews the work and recommendations of Mr. Fields, also recommended that the permit application be granted. Mr. McWilliams balanced the definable public loss which would ensue from the elimination of the 4,000 square feet of grass beds against the public benefit to be gained for the availability of the project to the boating public and the operation of a marine rescue service form the small boat basin. It was his conclusion that the proposed project would not be contrary to the public interest. A considerable portion of the testimony of this proceeding was devoted to the issue of whether a previous channel existed on the proposed site. Taken as a whole, the evidence establishes that the area which the applicant seeks to deepen is presently deeper than the surrounding grass flats. Aerial photographs received into evidence indicate by a straight while line some human activity and that the area in question has been used as a channel. All expert witnesses agreed that at least the shorewared 20 to 25 feet of the area appeared to have been disturbed. It could not be conclusively determined whether and when a channel had been dredged and, if so, the extent of the same. It is clear, however, that the specific area had been used as an access channel for the small boat basin in question. The area over which the applicant seeks to dredge is a shallow grass flat inhabited by turtle grass (Thallasia) and Cuban Shoal weed (Halodule), and is a very productive area in the marine ecosystem. The waters are within the Pine Island Sound Aquatic Preserve, A Class II body of water. No rules, regulations or management plan have been promulgated by the Department of Natural Resources for the Pine Island Sound Aquatic Preserve. The proposed channel is to be of a "box-cut" design with a flat bottom and vertical walls. Such a design is likely to create the need for frequent maintenance due to the possibility that the soft sides will slough inward. If further maintenance dredging becomes necessary, a permit for the same from the Department of Environmental Regulation would be required. If granted authority, the applicant would accomplish the dredging by utilizing either the "mud cat" type of dredge or a clam shell dragline mounted on a barge. Turbidity curtains will used to minimize the effects of loosening the bay bottoms and proliferation of silt by the dredging operation. All material excavated from the proposed channel will be deposited on an upland site. The petitioners in this cause either own or manage waterfront property within the Pine Island Sound Aquatic Preserve, and utilize the waters thereof. They have adequately demonstrated their substantial interest in the proposed project.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the Department of Environmental Regulation issue to Mariner Properties, Inc. a permit for the channel dredging project to the conditions set forth in Section III (B) of the Department's Proposed Order of Issuance executed on November 0, 1978, and subject to any forms of consent which may be required under Florida Statutes, Section 253.77. Respectfully submitted and entered this 11th day of April, 1978, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: David Gluckman Casey J. Gluckman 5305 Isabelle Drive Tallahassee, Florida 32301 Kenneth G. Oertel Truett and Oertel, P.A. 646 Lewis State Bank Building Tallahassee, Florida 32301 Ray Allen Assistant General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32301 Secretary Jake Varn Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION SANIBEL-CAPTIVA CONSERVATION FOUNDATION, ROBERT RAUSCHENBERG and FLORIDA AUDUBON SOCIETY, Petitioner, vs. CASE NO. 78-2422 DEPARTMENT OF ENVIRONMENTAL REGULATION and MARINER PROPERTIES INCORPORATED, Respondent. / By the Department:
The Issue The issue in this matter is whether the Joint Application for Environmental Resource Permit and Authorization to Use State-Owned Submerged Lands and Federal Dredge and Fill Permit to dredge sediments from specified areas in the Anclote River and surrounding bayous and lagoons should be granted.
Findings Of Fact Petitioner Henry Ross resides at 1005 South Florida Avenue, Tarpon Springs, Florida. The City of Tarpon Springs (City of Tarpon Springs or City) is located on the Gulf of Mexico and is a coastal community with 56 miles of shoreline. The City of Tarpon Springs is known as the "sponge capital of the world" and has a sponging industry that dates back to the early 1900s. Other activities within the City are recreational boating and shrimp and other commercial fishing operations. The Department of Environmental Protection (Department) is the agency of the State of Florida charged with the responsibility of regulating activities in, on, or over surface waters and wetlands of the state pursuant to Chapter 373 and the rules promulgated thereunder. Pursuant to these responsibilities, the Department is responsible for reviewing and taking final agency action on all environmental resource permit or dredge and fill permit applications. The City's Application, filed with the Department in December 1998 and at issue in this proceeding, is an environmental resource permit application for authorization to use state-submerged lands. The Application initially sought authorization for new dredging and maintenance dredging of approximately 16,888 cubic yards of sediment from 11 locations in or adjacent to the Anclote River and surrounding bayous and lagoons. These areas are Outstanding Florida Waters and are identified as follows: Area 1, Tarpon Bayou; Area 2, Kreamer Bayou (Upper Tarpon Bayou); Area 3, Kreamer Bayou (West Chesapeake Point); Area 4, Kreamer (Bayshore Access); Area 5, Sunset Lagoon; Area 6, Anclote River; Area 7, South Tarpon to Spring Bayou; Area 8, Minetta Bayou; Area 9, Innes Bayou; Area 10, Spring Bayou; and Area 11, Lake Lutea. Consistent with its procedures, the Department sent copies of the Application to all the appropriate agencies for comments and then initiated its own review of the Application. Copies of the Application were sent to Protected Species Management, formerly within the Department, but currently under the Florida Wildlife Conservation Commission; the Army Corps of Engineers; the Department of Community Affairs; and State Lands, an office in the Department responsible for determining how much of the project occurs on state submerged lands. These various offices responded by sending comments to the Department. Based on the agency comments, as well as the Department staff person’s own knowledge and experience, the Department requested additional information from Blasland, Bouck and Lee, Inc. (B.B.L.), the engineering firm that prepared the application on behalf of the City. Also of importance to the Department was the issue of whether the project proposed in the Application was new dredging or maintenance dredging. In order to make this determination, the Department requested additional information from B.B.L. and/or the City about past dredging in the area. This determination was necessary in order to ensure that the statutory criteria for issuing the permit was satisfied. If the City's proposed project were "new" dredging, there was a likelihood of increased boating traffic in the area. On the other hand, if the proposed project were maintenance dredging, there would likely be no increased boating traffic. B.B.L. and/or the City responded to the Department's request, indicating that there was not adequate evidence or information of past dredging. In the absence of such evidence or information, the Department relied on other information to determine if the proposed project was maintenance dredging or new dredging. Specifically, the Department reviewed the Application and other information submitted by the City and/or B.B.L., and aerial photos of the area from 1989, provided by the Army Corp of Engineers. The Department staff also considered observations made and information obtained as a result of their field inspections of the areas. Based on its review of all pertinent information, the Department found that, with the exception of Area 6, the areas designated for the proposed dredging activities were existing navigational channels and were currently functioning as such. Ultimately, the Department determined that the proposed project was a maintenance dredging project and that the purpose of the project was to have the City maintain these existing navigational channels, regardless of their origin. During the Department's 1999 field inspection, the Department staff looked at the depth and width of all existing channels. With regard to depth, the Department believed that the City should not dredge any deeper than the present channels. The Department's decision regarding the width and length of the channels was based on the existing depth of the channels; existing habitat values; the Department's site inspection; current site conditions; the current bathymetry provided by the City, which the Department confirmed; and consideration of what is necessary for safe and common navigation. With respect to Area 6, the Department found that there had been some degree of boating traffic in that area in the past. However, the Department concluded, based on its field inspection, that area had not been maintained adequately to consider it a functioning navigational channel. Therefore, dredging in Area 6 would be considered new dredging. After the Department staff conducted the 1999 field inspection, the Department sent a letter to the City, which recommended how the project could be modified and how some of the potential impacts could be minimized or avoided. Some of the Department's concerns involved the proposed dredging depths and widths of the channels discussed in paragraph 12, and the sensitive habitats in the areas to be dredged. The City addressed the concerns raised by the Department in a June 1999 letter and, in September 1999, the City modified its Application to address those concerns. The City's Application, as modified, significantly changed the whole concept of the project. In light of the modifications, the project changed from one that would increase boating traffic to one that would maintain current boating traffic. Because the Department concluded that the maintenance dredging proposed in the modified Application would not increase the frequency or size of boats using the areas or channels, there will be no secondary impacts associated with new or increased boating traffic. In response to the Department's concerns and requests, the City modified its Application to reduce the initially proposed dredging depths of the channels. For example, in some instances, the City had initially proposed that the depth of the channels be five feet, but subsequently, reduced the depth to three feet. Based on these modifications related to depths and widths, at this time, the City will not dredge Areas 1, 7, 8, and 10 because no dredging is necessary to maintain current depths of the channels. However, if there is accretion or accumulation of sediment at some of those locations, the City will have the right under the permit proposed to be issued, to dredge those areas during the term of the permit. Any dredging, however, would have to be consistent with the terms of the permit. At this time, only three areas have evidence of accreted sediments (accumulated silt) and will be dredged: Area 5, Sunset Lagoon; Area 9, Innes Bayou; and Area 11, Lake Lutea. The City's Application, as modified, reduces or minimizes the impact on the environment in the areas to be dredged, as well as the impact on sea grasses and manatees in those areas. Moreover, the proposed maintenance dredging project will reduce the risks for manatees associated with shallow water by increasing the water depths to safer levels. The Save the Manatee Club (STMC) opposes the proposed dredging project. The STMC considers the proposed project as new dredging and its typical response to such projects is that new dredging may affect manatees or manatee habitats in a negative manner. In this case, the STMC recommended that the Department deny new dredging because the cumulative effect from increased boat traffic will be adverse to manatees and will have more than a negligible effect on the species. Notwithstanding its opposition to the project, the STMC recommended measures to protect manatees should the project be approved. Most of these measures were included in the conditions incorporated in the Notice of Intent to Issue Environmental Resource Permit. In reviewing the City's modified Application, the Department considered the cumulative impact of the proposed project. Contrary to the opinion of the STMC, the Department reasonably determined that because this proposed project involves maintenance of existing navigational channels, there is little potential for cumulative impacts to be an issue. The Florida Wildlife Conservation Commission (Commission) is required to review and comment on all environmental resource applications relative to how the projects will impact manatees. After carefully reviewing and considering the modified Application, the Commission determined that the project, as proposed in the modified Application, varied significantly from the original Application and concluded that "the areas to be dredged are limited to those considered maintenance dredging," and that sea grasses have been avoided. The Commission also concluded that the conditions in the Notice of Intent to Issue regarding manatees' protection are adequate to offset the expected impacts to manatees from the proposed activity. The Notice of Intent to Issue includes the following conditions which minimize the impact to manatees: (1) a manatee observer must be designated and this observer must be in the water when the proposed work is being done; (2) if a manatee is sighted within 50 feet of the dredging activity, the activity will stop until the manatee is out of the area; (3) a log which details the sighting of manatees will be maintained; (4) work will not be performed after sunset because manatees cannot be seen during that time; (5) in-water work will be performed from March to November when manatees are less likely to be in the area; (6) when possible, work will be performed using a hydraulic dredge; and (7) boat traffic within the area will operate at a slow speed during the dredging activity. To ensure that conditions regarding sea grass had not changed since the Department's field inspection more than two years prior to this proceeding, Department staff conducted another field inspection of the area on April 11, 2003, four days prior to this hearing. That field inspection focused on Area 6 because it was conducive to some presence of sea grass. The findings of the April 11, 2003, field inspection were consistent with past reports and field inspections, which revealed that the quantity and density of sea grass were extremely low. During the April 1999 inspection, only a few sprigs of sea grass were observed within or adjacent to the potential dredge area. Due to the continued low density of sea grass, the planned dredging activities do not pose any direct negative impacts to the environmentally-protected aquatic vegetation, including sea grasses. The Department has reasonable assurances that the State water quality standards will not be violated by the proposed permit. Initially, the Department had to establish whether sediments at the proposed areas to be dredged contain pollutants. To make this determination, the Department first used a tiered approach established by the Army Corps of Engineers and the Environmental Protection Agency. This tiered approach requires looking at the location of the proposed areas to be dredged and then looking at the consistency of the sediments in that area. Depending on the result of these reviews, additional testing might be required. In this case, the three sites where the proposed dredging was to be done were identified and grain-size analyses of sediments from each of the areas were completed. These analyses provided information regarding the percentage of fine sediments in the areas proposed to be dredged. The higher the percentage of finer sediments, the greater the potential that the sediments contain pollutants. Based on the grain-size analyses, the sediments from the three areas proposed to be dredged--Area 5, Sunset Lagoon; Area 9, Innes Bayou; and Area 11, Lake Lutea--were coarse enough that they did not have much potential to contain pollutants. Therefore, additional testing of those sites was not necessary. The Department then considered the City's modified Application in terms of how the water quality and quantity will be maintained during the dredging process. For the dredging project, the City proposed using "closed bucket" clamshell dredging and utilizing double floating silt barriers as the containment method. Upon review, the Department authorized the "closed bucket" clamshell dredging for this project. This method is an intermediate method of protecting against pollutants that may be generated by the dredging project. Although hydraulic dredging is a cleaner process, the "closed bucket" clamshell method is more appropriate for this dredging project because it involves "spot" dredging to remove high spots and to maintain the currently existing navigational depths. Pursuant to conditions included in the Notice of Intent to Issue, the City must meet State water quality standards during the dredging events. If the State water quality standards are exceeded, the State has the power to enforce the water quality standards and to shut down any dredging operation that clearly exceeds that criteria. Mark Peterson is currently, and has been for the past two years, the environmental manager of the Department's Environmental Resource Permitting Section. Prior to this, Mr. Peterson was an environmental specialist with the Department. Mr. Peterson has a bachelor of science degree in biology from University of South Florida and a bachelor of science degree in horticulture from Florida Southern College. During his employment with the Department, Mr. Peterson has reviewed thousands of applications for environmental resources permits, exemptions, or authorizations to use State submerged lands. Mr. Peterson has made site visits to locations involved in instances where permits have been issued, with the exception of about two of the 500 approved applications, exemptions, or authorizations. About 50 of the projects were similar to the project at issue in this case. Mr. Peterson has been the Department's primary reviewer of the City's Application and modified Application for this proposed dredging project since its inception. Based upon Mr. Peterson's review of all relevant documents and analyses, the comments of appropriate agencies, and his field inspections of the site, the project, as proposed in the modified Application and the Notice of Intent to Issue Environmental Resource Permit, meets the public interest test set forth in Section 373.414(1). It is specifically found that: The activity will not adversely affect the public health, safety, and welfare or the property of others; The activity will not adversely affect the conservation of fish and wildlife, including endangered or threatened species or their habitat; The activity will not adversely affect navigation or the flow of water or cause harmful erosion or shoaling; The activity will not adversely affect the fishing or recreational values on marine productivity in the vicinity of the activity; The activity will be of a temporary nature because the channels tend to silt over time (over months, sometimes over many, many years; The activity will not adversely affect in any manner any significant historical and archaeological resources under the provisions of Section 267.061; and The activity will not affect the current condition and relative value of functions being performed by areas. In order to begin this dredging project, the City also needed to get approval from the United States Corps of Engineers and the Pinellas Water and Navigation Control Authority. These agencies have approved permitting the project.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent Department of Environmental Protection enter a final order granting the Application of the City of Tarpon Springs, as amended, and issuing Environmental Resources Permit No. 52-01481903-001. DONE AND ENTERED this 7th day of October, 2003, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of October, 2003. COPIES FURNISHED: Doreen Jane Irwin, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Henry Ross 1005 South Florida Avenue Tarpon Springs, Florida 34689 Thomas J. Trask, Esquire John G. Hubbard, Esquire Frazer, Hubbard, Brandt & Trask, LLP 595 Main Street Dunedin, Florida 34698 Kathy C. Carter, Agency Clerk Office of the General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue Whether the Department of Environmental Regulation, upon all of the information presented before it, properly issued its Notice of Intent to Deny the request for a permit channelizing the subject streams within the Mills Creek Watershed. FINDINGS OF FACT 1/ It is the Petitioner's contention that the Petitionerhas failed to demonstrate, as a matter of law, its entitlement toa permit for channelization of the Mills Creek Watershed initially because the project will entail an alleged loss of watershed and wildlife habitat "particularly since there are no restrictions on private drainage connection". As stated supra, in the Background section., one of the agencies that has commented on this project, the St. Johns River Water Management District, at its August 18, 1976, meeting endorsed the Mills Creek project with the recommendation that no direct connections of laterals, drainage ditches and/or secondary connections be allowed within the boundaries of the flood plain as they presently exist. There is at present a local ordinance pending to comply with this proviso which has been endorsed by the chairman of the Board of County Commissioners for Nassau County. And, aside from this fact, DER is authorized to incorporate finite limits into drainage permits to prevent excessive drainage into any project in which a permit is required. And, as stated, the county has acquiesced with the suggestion by Gerald Herting of DER that such constraints he placed in the permit provided favorable action is taken by DER. Testimony introduced during the hearing in the case reflects that provisional permits are not uncommon. (Testimony of Landon Ross and Douglas Bailey of DER and the Office of Environmental Protection, of FG&FWFC,respectively.) Stephen Gatewood, an environmental specialist, analyzedthe Mills Creek project plans and also visited the site. He testified that the subject project was well planned ecologically in terms of soundness and, based on the manner in which the plans are drawn and the construction will be implemented, the least amount of environmental damage will result. He compared the Taylor Creek channelization project with the subject project and while noting that there were differences, he testified that he was unable to give his blessings to the subject project, inasmuch as the Taylor Creek project had been "a bad experience". The similarity between the two projects is the fact that there are effluents flowing from dairies on both projects although Gatewood was unable to show what impact effluents flowing from the dairy situated in the Mills Creek area had on this project. Doctor Shireman, a professor of fishery sciences and a biologist with the University of Florida, sampled the fish population in both the channelized and non-channelized portions of the project streams for the last year. Doctor Shireman stated that the fish population was representative of the fish populations in lakes and streams throughout Florida and also indicated that if the county ordinance was passed and lateral inlets into the channel were controlled, the channelization project would have minimal impact on tie lower parts of the stream. Moreover,experts from the Department and the Petitioner agreed that thepotential water quality damage would be minimal at worst. Section 17-4.28, F.A.C., adopted pursuant to Chapter 403, F.S., places the burden upon the Petitioner to affirmatively show and demonstrate to DER that its channelization project will not result in violations of the water quality criteria, standards, requirements and provisions of Chapter 17-3, F.A.C., over the short and long term periods. Also, Section 17-4.29 F.A.C., adopted pursuant to Chapter 253, F.S., requires the applicant to affirmatively demonstrate to the Department that, based upon a biological and hydrographic survey, the project will not interfere with the conservation of fish, marine and wildlife, or natural resources. Finally, the project must be designed so as not to violate Section 403.161, F.S., which prevents the causing of pollution, harm or injury to human health or welfare, animal, plant or aquatic life or property. In this regard, the evidence introduced at the hearing revealed that essentially all of the water quality studies and the majority of the studies associated with the aquatic system were carried out by Doctor Shireman through a cooperative agreement between the University of Florida and SCS. Doctor Shireman, as stated, analyzed the fish population in the channelized and non-channelized areas of this project and found the fish and aquatic population to be representative of similar lakes and streams in this State and, further, that there was no measurable difference in the fish population in the channelized area, an area which had been completed approximately seven years ago, and the non-channelized areas. This study encompassed a period ofapproximately one year. It was also noted that for the most part, measured data indicated that the water quality in the channel system met the criteria for Class III waters. Also, as stated earlier, the channel supported good fish populations and samplings of the stations in the channelized portions conducted by Doctor Shireman provided no basis for a finding that the constructed channels were in any manner degrading water quality despite the fact that the channels had been constructed for approximately seven years. The studies also revealed that through an examination of the benthic organisms and fish life found in all channels and receiving waters, an acceptable quality free from detrimental levels of toxic materials was prevalent. The Department also expressed a concern that channelization would drastically reduce the number and size of fish due to increased sedimentation and the loss of stream bed niches and pits. The Department offered its position that dredging homogenizes the bed structure, reduces roughness and diversity and destroys diversity of the current pattern. Sampling of the subject project streams indicate that in the watershed 39 different species of fish were discovered, 30 of which were found in the channel sections. The data also revealed that there was little specie difference in the benthic organisms between channel and unchanneled portions of the watershed. There was no evidence introduced of any increased sedimentation taking place in the previously constructed channels. The Department also expressed concern over clear-cutting during construction, with resulting increases in the water temperatures, wetland reduction, streamside foliage destruction and turbidity. Respecting this concern, Jesse Livingston, a registered civil engineer involved in the design and implementation of the project, testified that the Mills Creek area was designed and redesigned to address and satisfy the concerns of the various commenting agencies and that the project was not designed to drain the swamp as the commenters feared. To the contrary, he testified that the hydrologic grade line of the channels was set two feet above the normal ground in the area and in fact the planners envisioned a design to flood the swamps to increase the wetlands. He testified that a detailed geological investigation was made of the channel by taking soil samples during field investigations to determine permeabilities and soil types to determine a safe velocity for the channel's design. Mr. Livingston testified without contradiction that the project was designed so "that the side slopes would remain essentially as planned; taking precautions to ensure that the channel bottoms do not degrade and by stabilizing the channel. In so doing he commented that the bed load would continue moving through the channel system which ultimately would fill the downstream channels". He testified that limited turbidity would occur during the process of construction but by use of proper construction techniques, the channel system would be stabilized and no significant amount of turbidity would result. He testified that pipe drops were designed and set along the channel to control the manner in which water entered the swamps and ultimately into the channel. Respecting the allegations and concerns expressed of clear-cutting and increasing water temperatures during construction, Livingston testified that the channels were designed to be constructed from one side and thereby eliminating the amount of clearing which was a sure way to control clearing and also minimize any temperature increases along the channel. This method, according to Livingston, also provides essentially the same cover to foliage due to the fact that the channelization would all occur on one side. Testimony introduced also revealed that the streamside foliage had begun to fully recover within the channelized area and that the streamside foliage which would be temporarily lost during the construction phases would fully recover to vegetation within one growing season. Finally, he testified that provisions would be made to curtail turbidity within allowable limits. His testimony reveals that the bottomland hardwoods would not be disturbed due to the graded side inlet pipes which was done at the request of FG&FWFC. He concluded that the ecological change in the swamp diversity would be temporary, lasting only temporarily beyond the construction phases.
Conclusions As the Petitioner (applicant) points out, the Department's reviewers seem to have taken a textbook approach in reviewing the available data in reaching its decision of its intent to deny the permit for the Mills Creek channelization project. While there were some shortcomings in data which largely stem from the difficulty in ascertaining the impact of the effluents of the dairy in the area, the weight of evidence tends to support a conclusion, by competent and substantial evidence, that the project would not degrade the air and waters of this State. The Petitioner, through various meetings with all of the State and Federal agencies commenting on the design of this project, addressed all issues and designed the project so as to meet and satisfy the concerns of interested parties. The available data also revealed that in those areas wherein potential problems may arise in the future,the agencies are armed with sufficient authority to remedy and correct such problems. The engineers for this project designed it based on the guidance and consultations of all agencies who were interested in the ecological welfare of this area and took great pains to see that air and water quality would not be degraded. The local county officials have also given their approval to limit lateral connections by upland owners and the overall project design appears to be in keeping with the letter and spirit of Chapters 403 and 253 and Sections 17-3 and 4, Florida Administrative Code. For all of these reasons, I am forced to conclude that the Petitioner (applicant) has met its burden of establishing that the requested permit for the channelization project herein will not result in a degradation of air and water quality and, therefore, the permit should be issued. In keeping with the recommendations by the St. Johns River Water Management Board, I shall recommend that the permit be issued with the proviso that no lateral connections be made to the channelization project by upland owners.
Recommendation Based on the foregoing findings and conclusions of law, it is hereby recommended that the Department of Environmental Regulation cause to be issued a permit authorizing the applicant herein to channelize the remaining section of the Mills Creek project as requested with the proviso that the channelization operations be stayed until the Board of County Commissioners of Nassau County pass an ordinance that provides that no direct connections of laterals, drainage ditches and/or secondary connectors be allowed within the boundaries of the flood plains as presently exist. RECOMMENDED this 26th day of June, 1978, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact Respondent James Tucker seeks a modification of a previously approved permit to extend the depth of the dredging proposed to -8 feet from the previously approved -5 feet. Respondent proposes to maintenance dredge a 35 x 275 foot canal aid entrance channel into Santa Rosa Sound to a maximum depth of -8 feet; to permanently moor the USS Showboat, a motorless concrete ship to piling driven in the canal; to place riprap around the ship with a 3 foot drainage pipe leading through the riprap on both sides of the vessel to allow drainage to pass the vessel and enter Santa Rosa Sound; and thereby to create a holding pond between U.S. 98 and the vessel. Tucker owns the property containing the canal located immediately west of Petitioner's property. The canal serves as a drainage conduit for several acres in the vicinity of and including U.S. 98 Highway and drainage enters the canal by a 3 foot culvert under U.S. 98. The canal is largely full of sediment and is anaerobic. Although fish are caught in the Sound off the church's and Respondent's property, there are no grass beds that would be disturbed by the proposed dredging. Witnesses who testified to the existence of grass beds had not actually entered the water to verify the existence of such beds. While there are numerous other sources of pollution entering Santa Rosa Sound, including the City's discharge of sewage effluent, the discharge through the canal here under consideration is significant. By dredging the canal, mooring the vessel therein, and installing riprap around the vessel, a holding pond will be created between the vessel and the end of the canal which abuts U.S. 98. While the volume of this holding pond is not as large as would be required to adequately accommodate the drainage area served, the proposed holding pond will improve existing conditions. The 3 foot conduits to be installed in the riprap will provide drainage from the settling pond to Santa Rosa Sound, which drainage should contain less pollutants entering Santa Rosa Sound than now enter. The proposed project would improve the water quality of Santa Rosa Sound. The dredging at the entrance of the canal of state owned lands will cause no appreciable biological damage to the bottom and the dredged area will be allowed to return to its normal depth after the vessel is moored, i.e. there will be no maintenance dredging to maintain this -8 foot depth. Respondent Tucker will install silt screens and maintain turbidity limits within those prescribed by DER during dredging. Tucker has also consented to a condition to be placed in the permit that he be required to maintain the settling pond by future dredging when necessary. Although the City Council of Ft. Walton Beach voted to deny any request to relocate the USS Showboat to any place in Ft. Walton Beach, Exhibit 8 indicates that the property containing the canal is zoned C-2 and relocating the vessel to this site would be in conformity with the City's zoning laws.
The Issue The issues presented in this hearing concern the request by Ortega Island, Inc. to be granted permission, by the State of Florida, Department of Environmental Regulation, to construct a bridge across the Stockton Canal in Duval County, Florida. The permit review is under the general authority of Chapters 253 and 403, Florida Statutes, and associated rules.
Findings Of Fact In July, 1980, Ortega Island, Inc., hereinafter referred to as Respondent, filed an application with the State of Florida, Department of Environmental Regulation, which would allow it to construct a bridge giving access from a mainland area to an adjacent spoil island known as Ortega Island. The spoil island was created in 1959. This proposed project is found in Duval County Florida. The island is approximately 42 acres in size and is adjacent to the Ortega River in an area roughly two and a half miles from the confluence of the Ortega and St. Johns Rivers. The body of water to be spanned by the proposed bridge is known as the Stockton Canal, a man-made canal. That canal is connected at its north and south ends to the Ortega River. The State of Florida, Department of Environmental Regulation, which will now be referred to as the Department, reviewed the initial application of July, 1980, and a revision of May, 1981. The review was conducted by the Northeast District Office of the Department. A further modification was offered through a revised construction plan which dates from May, 1982. Respondent's Composite Exhibit No. 4 is constituted of the initial applications related to the project design and certain comments made by the Department of Environmental Regulation. Respondent has sought the approval of its permit application based upon the belief that the project involves dredging below the mean high water line and filling above the mean high water line of waters of the state. Consequently, Department approval has been sought pursuant to those Sections 253.123 and 403.087, Florida Statutes, and the related provisions in Chapters 17-3 and 17-4, Florida Administrative Code. In the initial permit application of July, 1980, the applicant had proposed to construct a 20-foot concrete span, eight feet high, which was to be connected to the mainland and Ortega Island by the placement of fill material, thereby building causeways which extended approximately 55 feet into the canal from each end of the shore. This would have entailed the placement of 3,000 cubic yards of fill waterward of the mean high water line and reduced the canal width to 20 feet at the area of the bridge site. The Department did not look with favor upon the elimination of marine habitat by the construction of causeways and the attendant adverse impacts in the hydrographic regime in the Stockton Canal. This is shown in the Department's remarks found in Respondents' Exhibit No. 8 admitted into evidence. To address those concerns, the Respondent employed Dr. Barry Benedict, an expert in the field of hydrographic engineering, who conducted hydrographic studies of the Stockton Canal. These studies are found as part of Respondents' Exhibit No. 6 admitted into evidence. In summary, Dr. Benedict recommended that the bridge span be no less than 48 feet. Pamela Sperling, the hydrographic expert of the Department, reviewed these materials and concurred that a minimum span length of 48 feet would be necessary. This is reflected in a memorandum offered by Ms. Sperling, which is Respondents' Exhibit No. 10 admitted into evidence. The May, 1981, revision of the project calling for 52 foot bridge span is the result of the Benedict study and the remarks of Sperling. That proposal would allow for 39 foot causeways on each end of the bridge and 2,000 cubic yards of fill material waterward of the mean high water line. Notwithstanding the acceptance of the hydrographic improvements related to the new provision, the Department still was concerned about adverse impacts to marine habitat which would occur with the placement of fill on related biological resources. Likewise, the Florida Game and Freshwater Fish Commission, National Marine Fisheries Service, United States Department of Interior, and United States Environmental protection Agency had expressed concern about this destruction. Those comments are found in Respondents' Exhibit Nos. 13 through 16 respectively, as admitted into evidence. In the face of these reservations, the May, 1982, revision was made, which would allow a total span of the waterway, eliminating causeways and fill material below the mean high water line. Following the May, 1982, revision, the Department issued its notice of intent to grant the permit. Notification was made on September 10, 1982, a copy of which may be found as Respondents' Exhibit No. 17 admitted into evidence. The permit application appraisal by the Department was conducted by Tim Deuerling, who is an Environmental Specialist who assesses dredge and fill permit applications. Mr. Deuerling additionally has expertise in the field of biology and water quality analysis related to dredge and fill activities. His appraisal of the project is based upon several visits to the site, and his impressions of the site are outlined in a report of October 30, 1980. A copy is found as Respondents' Exhibit No. 8 admitted into evidence. On April 1, 1983, a further revision was offered to the permit application. The initial aspect of that revision concerned stormwater disposal for a concrete bridge. The remaining aspect of the revision was the suggestion that a timber bridge be considered as an alternative structure. The April 1, 1983, revision formed the basis of the consideration of the project by way of final hearing. The Petitioners protested consideration of the April, 1983, revision contending that the revision was not appropriately reviewed by the agency, in that it constituted a substantial revision in the application process and was not the application which the agency had accepted in indicating its proposal to grant the permit in September, 1982. The hearing was allowed to go forward over the objection of the opponents to the permit, it having been determined by the Hearing Officer that the revisions of April, 1983, were not so remarkable that they would require a new permit application or further agency study and review prior to the formulation of proposed agency action in deciding to grant or deny the permit request. Further, it was determined that the April, 1983, revision could be considered without the necessity of additional notification of the issues to be considered in the hearing, there being an adequate opportunity for the applicant to develop the record in favor of those modifications and to allow the Department, Petitioners, and Intervenor to form the needed record response. In the dispute as considered at the final hearing, the petitioners and Intervenor contended that the project should not be allowed because it fails to comply with requisite provisions of 253 and 403, Florida Statutes, and the associated rules related to those statutes. In addition to the protest which has been made by those individuals having party status in this instance, there have been other written statements in opposition which may be found as Respondents' Exhibit No. 18 admitted into evidence, a composite exhibit. Those objections by Petitioners and Intervenor are more specifically detailed and discussed in further sections of this Recommended Order. Under the April 1, 1983, proposal, the concrete bridge is composed of a system of hollow cord deck members supported by concrete piles. There are six pile bents and four of those are within the waterway. The spacing between the piles is 24 feet minimum horizontal clearance, with the bottom of the bridge deck being eight feet above the water at the lowest clearance point. The bridge span is 130 feet, to allow the bridge construction to be completed without the placement of fill below the line of mean high water on either end of the bridge. The bridge approaches under the new proposal are constituted of asphaltic concrete roadways supported by fill material and that fill material is separated from the waterway by the use of sheet pilings. Water drainage from the deck surface of the concrete bridge would flow through a collection system, which is part of the bridge structure. The water, which is released from the bridge surface on the mainland side, would be transported to a stilling and percolation basin also serving a residential area of approximately 42 acres. The water from the 42 acres now flows through a grass swale before entering the canal. The project design would accommodate the 42 acre flow and the .35 acres from the bridge. The water from the 42 acre plot and the bridge project flows into the Stockton Canal after receiving some water treatment in the transport process. The volume of the percolation basin is 620 cubic feet. The establishment of this percolation basin will not adversely affect the adjacent properties in the 42 acre tract by prohibiting the flow patterns from that property or sufficiently change the quality of stormwater treatment from the adjacent property to cause adverse impacts on receiving waters in the Stockton Canal. Runoff from the bridge to the island side of the proposed concrete structure would flow through a swale system for treatment before entering the Stockton Canal. The treatment afforded all runoff is by surface flow and vertical percolation. The alternative bridge structure, i.e., the wooden bridge, would span the Stockton Canal and not require filling either waterward or landward of the mean high water line. Unlike the concrete bridge, the deck surface is pervious. Consequently, water may be introduced directly into the canal from the deck surface. The stormwater runoff on the bridge approach on the mainland side would be collected and discharged through the existing grass swale and from there, into the canal. Drainage from the bridge surface and approach on the island side would be through a swale system and from there into the canal. The Stockton Canal is constituted of Class III waters within the meaning of Chapter 17, Florida Administrative Code. Consequently, the Respondent is required to give reasonable assurances that the project would not violate water quality criteria or standards related to Class III waters. In this instance, construction and utilization of the concrete bridge, with its attendant approaches, would not degrade the water below those standards, that is to say, the necessary reasonable assurances have been given that the short and long-term effects of the project will not result in violations of Class III water quality standards. The latest concrete modification allows for the removal and treatment of the stormwater effluent which flows from the bridge surface and approaches. No fill is to be placed in the waters of the state below the mean high water line. (The mean high water line was established in the course of the hearing through the testimony and the evidence presented.) Fill will be contained by sheet pile. Turbidity screens will be used while the construction is underway to confine turbidity problems in the placement of the bridge pilings. Siltation barriers are to be employed while removing the existing root overhang on the island side of the bridge to avoid the deposition of those materials in the waters of the state. The timber bridge allows for water to flow directly from the surface into the canal but the contaminants introduced into the canal would not exceed standards. According to Harvey C. Gray, Jr., State of Florida, Department of Transportation, an expert in chemical water quality analysis, the expected constituents from the stormwater runoff from the bridge decks either directly or indirectly introduced into the canal would not violate water quality criteria parameters. Nor would leaching from the wooden bridge pilings present a violation of water quality criteria. These opinions are accepted. A study mentioned by Harvey Gray has established that the contaminants from the deck surface are usually contained in the first half inch of rainfall and the treatment arrangements for stormwater runoff are designed to accommodate that first half inch. The source of pollution on the deck is vehicular traffic and vehicular fallout. Moreover the transport of the stormwater over the land surface attenuates the concentration of pollutants. Don Clay Bayley is Chief of the Environmental Services Division, City of Jacksonville. Testimony given by the witness Bayley, who has some experience in testing for leaching of contaminants from wood pilings, pointed out the toxicity of those materials. He acknowledges, however, that treatment substances can be used which are not toxic. The applicant should use these substances if the timber bridge is employed. Bayley alluded to studies done by the Department of Transportation for the Buckman Bridge, which is a bridge serving Interstate 95, related to the fact that violations of lead, zinc, and copper standards of water quality have been found in that area. These observations did not take into account an acceptable mixing zone where the contaminants are to be introduced into the St. Johns River under the bridge. More importantly, the Buckman Bridge is very different in terms of the amount of vehicle traffic, in that there are an extremely high number of vehicles using that bridge, as contrasted with the limited use of the subject bridge. Therefore, Bayley's concerns are not well- founded. Otherwise, the timber bridge offers the same quality of protection as the concrete bridge and reasonable assurances have been given that the short and long-term affects of the project will not violate water quality standards for Class III waters. Nonetheless, the higher quality of water treatment would be received in the concrete bridge alternative. In support of the application, sufficient water quality sampling has been done to establish reasonable assurances that water quality standards shall not be exceeded. Moreover, nutrient loading is not expected as a result of the bridge construction. In addition, witnesses Deuerling, Tyler and Craft, employees of the Department and experts in water quality analysis, do not believe water quality criteria will be exceeded by this construction, and their opinion is accepted. In summary, the necessary reasonable assurances have been given that water quality criteria related to Class III waters, as found in Rule 17-3.121, Florida Administrative Code, will not be exceeded and that the project will not promote undue nutrient loading as contemplated by Rule 17-3.011(11), Florida Administrative Code. Peter Hallock, project engineer, established in his testimony that either alternative in the bridge design would not adversely affect drainage related to adjoining properties on the landside of the bridge. The concerns expressed by Dr. Arlynn Quinton White, Jr., Department of Biology and Marine Science, Jacksonville University, of the possibility of stormwater impacts, with particular emphasis on hydrocarbon concentrations, are not accepted. The runoff is not found to be violative of water quality standards in the receiving waters. These findings take into account the expected maximum number of average daily trips, 460. Given the number of average daily trips, the stormwater contaminants, which are untreated, would not violate DER water quality standards. The number of average daily trips on the proposed bridge is much less than the 4,000 trips over the study bridge referenced by the witness Gray and generally discussed before. That study did not show violations of the criteria for Class III waters, which is the classification for the Stockton Canal. The location of the study, while not in Duval County, dealt with sufficiently similar circumstances to allow the acceptance of those findings. Testimony was presented by Dr. Barry Benedict, author of the aforementioned hydrographic study. His testimony concerned an analysis of the flow patterns at present and following the installation of the bridge. The testimony was based upon results of the initial investigation or study, found as Respondents' Exhibit No. 6 admitted into evidence and the update of April 18, 1983, found as Respondents' Exhibit No. 7 admitted into evidence. Dr. Benedict's analysis utilized a liberal estimate of the impact of the bridge on the canal system on the question of flow. His findings were to the effect that the bridge would cause minimal change in the flow velocity of the water and in sedimentation in the overall canal. He did not feel that the installation of the bridge would unduly hamper the flushing qualities in the canal or result in a flood hazard to adjacent properties. This was his opinion whether the concrete alternative or timber bridge were elected. Benedict felt that a maximum nine percent difference in flow would occur bringing the flushing time within the canal system from 3 hours and 30 minutes to approximately 3 hours and 45 minutes. This, in Benedict's mind, is not a substantial hydrographic alteration. In summary, Benedict felt that the installation of the bridge would have minimal impact in terms of hydrographics. Benedict's depiction of these matters is accepted as being correct. The Department of Environmental Regulation's hydrographic engineer and specialist in hydrodynamics and water quality analysis concurred with Dr. Benedict on the hydrographic effects of the installation of the bridge. Her concurrence is based upon a review of the Respondents' Exhibit No. 6. Ms. Sperling had also examined the site for the proposed bridge project and made independent calculations that the flow velocity would not be significantly influenced by the installation of the bridge. Ms. Sperling believes that a flushing time which is essentially one half tidal cycle or six hours is acceptable, and she believes that the flushing time in this project after the bridge installation will fall within three and a half to four hours. Sperling also indicated that she did not feel that the bridge project would have adverse effects on the water quality within the canal. The opinions of Sperling, as related herein, are accepted as factually correct. George Robert Register, III, who holds a bachelor's degree in biology and a master's degree in coastal and oceanographic engineering, gave testimony on the hydrographics within the Stockton Canal. Register's opinions were not based upon testing or calculations related to the project such as sediment analysis, studies of tides, or soil borings. He noted the gradual shallowing which has occurred within the canal over a period of years and expressed concern that the change in flow could result in a more rapid shallowing. He alluded to the observations of Frederick W. Brundick, III, a resident of the Stockton Canal, who has seen the shallowing occur over a 20-year period. Register also stated that he feels that the present situation in the Stockton Canal is similar in nature to a problem which occurred in another area of the Greater St. Johns River which is known as Mill Cove. In that instance, dramatic silting has taken place. Register contended that boat traffic helps to suspend the particles of soil and alleviate silting, an influence which will be diminished after bridge construction due to less traffic. Register indicated that the analysis of the hydrographics, which was done by Dr. Benedict, was insufficient and indicated that, in his opinion, a stability test should have been done related to the project area. The stability analysis pertains to whether the water system will continue in its present flow pattern or is on the brink of rapid shallowing. While the observations of Register and Brundick related to the shallowing of the canal system are accepted, Register's opinion that the present system will rapidly deteriorate into a more shallow configuration, as with the case with Mill Cove, is not accepted. Nor is Register's suggestion that a stability test was in order on this occasion found to be correct. The calculations by Dr. Benedict, confirmed by Sperling, are found to be the more accurate depiction of the effects of the installation of the bridge. The placement of the bridge is not expected to be an event which will imbalance the flow patterns in such a fashion that rapid siltation will occur. Based upon Department of Environmental Regulation reports, the types of sediments in the canal subject to water borne transportation are silty. They have low fall velocities, which would make them less likely to increase sedimentation in the canal system due to the installation of the bridge, when compared to other soil types. The sediment materials are very fine and not such that they would readily settle out due to minor reductions in the flow velocity, such as would occur with the construction of the bridge. Although the reduction in flow velocity within the canal system after the bridge build-out is not such that it would cause water quality violations or substantially impede the flow, there will be some increase in siltation. This change in sedimentation or siltation is recognized by the Respondent, in the person of its expert, Dr. Benedict. The fact of this increase in siltation would require channel maintenance within the canal, and no provision has been made in the application for channel maintenance. That maintenance is necessary to prohibit undue shallowing, especially at the location of the bridge. This siltation at the bridge will result based upon the placement of the pilings, which will slow the velocity of water, leading to attachment of marine organisms to the bridge pilings. Consequently, provision should be made for channel maintenance. Likewise, even though the Respondent hopes to eventually have a homeowner's association responsible for bridge maintenance, that issue of the development of the island was not considered in the course of this hearing, making it necessary for someone to maintain the constructed bridge and approaches prior to any future development. That provision had not been made and should be arranged for. Both the channel and bridge maintenance would be an appropriate responsibility for the applicant for permit. The necessity for the bridge and canal to be maintained by the applicant is not such that the Department, pursuant to Rule 17-4.11, Florida Administrative Code, should require proof of financial responsibility or posting of a bond. If the applicant is financially able to construct the bridge, it is determined that the applicant could be expected to be financially able to maintain the bridge and canal. Witnesses of the Petitioners, in particular, the witness Bayley, have expressed concern about the placement of fill material on Ortega Island, in that it is the belief of that witness that the placement of the fill would displace the muck layer which would then be forced into the canal. Witnesses White and Register supported Bayley's opinions reference the muck layer. There is, in fact, a muck underlay on the island, and the placement of the fill soil can be expected to force the transport of some of the muck underlayer. The amount of muck layer to be displaced is not certain; however, by placing the piling barrier at the edge of the canal the muck can be contained. The applicant has made provision for protection against the muck material where the pilings are proposed for installation. Nonetheless, it may be necessary to extend the length of pilings beyond the area of the bridge abutment and approach to the bridge on the island side, to contain this material, and the applicant should make any necessary modification to prohibit the introduction of the highly organic muck material which could cause problems with ph and dissolved oxygen content related to water quality standards. In summary, the applicant has given the necessary reasonable assurances that the muck material will not violate water quality standards in the water, subject to necessary adjustments in the piling design on the island side in the area of the bridge approaches to block the flow of the muck. On the related question of the overall stability of the island, the geomorphologic process evidence shows that the island is becoming more inundated with water. This is borne out by the observations of Mr. Brundick, a 20-year resident in the area of the island, and is more graphically described in the photographs which are Petitioners' Exhibit No. 2 admitted into evidence. His finding is also supported by the observations of Dr. White to the effect that certain vegetational species seen on the island indicated that increased island area was under water. The placement of the bridge approach fill was not shown to be a critical contributor to this condition. Notwithstanding the island's long-term physical change, there was no indication that this condition, per se, when considered in the context of the building of the bridge and the approaches, indicates violation of the permitting statutes or rules of the Department of Environmental Regulation. The development or the construction of the bridge requires the dredging of material in waters of the state. Per Section 253.123, Florida Statutes and Sections 17-4.29, Florida Administrative Code, the Respondent/Applicant needs to address the possible interference with conservation of fish, marine, and wildlife and other natural resources which the project may promote contrary to public interest. Respondent satisfactorily responds to those matters. The biological and ecological studies, which were done by the Department of Environmental Regulation, and reported in Respondents' Exhibits 8 and 9, indicate that the area in the Stockton Canal is not particularly productive in terms of its biological volume and diversity. There is very little litoral vegetation and submerged grasses are scarce. The most diverse area is in the proposed project site which formally was the location of a bridge. The remains of that bridge debris have promoted a more diversified biological community. To protect the species and habitat during and after construction, the applicant is using a full span bridge, which is in keeping with recommendations by various state and federal agencies. The testimony of the expert biologist Tim Deuerling of the Department of Environmental Regulation, was to the effect that the impacts of the project related to biological resources was minimal. Jeremy Craft, of the Department of Environmental Regulation, agrees with Deuerling and indicates that there will be no impact on the resources pertaining to fish, marine, and other natural resources. Moreover, both Deuerling and Craft felt that the placement of the bridge piling would grant an opportunity for increased biological diversity in the Stockton Canal. Jeremy Tyler also indicated that he was of the opinion that the bridge would not negatively impact fish, wildlife, and other natural resources premised upon the fact that no fill was being placed waterward of the mean high water line and no substantial changes in the hydrographics of the canal system. These opinions expressed by Deuerling, Craft, and Tyler are accepted as being correct. The installation of the bridge will not result in the destruction of oyster beds, clam beds, or marine productivity including destruction of marine habitats, grass flats suitable as nursery or feeding grounds for marine life, and establishment of marine soils which could be used for producing plant growth useful for nursing or feeding grounds for marine life or interfere with the natural shoreline processes to an extent that is contrary to the public interest within the meaning of Subsection 253.123(2)(d) Florida Statutes. It was additionally established that the placement of the canal will not interfere with the endangered West Indian Manatee, the area of the canal having insufficient vegetation for the manatee to feed on. Any manatee passing through the area of the canal will not be hindered by the bridge's placement. Additionally, there may be some benefit to the placement of the bridge in that it would tend to slow the boat traffic, decreasing the possibility of injury to the manatee by boat propellers. This was established by testimony of the witness Deuerling. In summary, no showing was made that the project will adversely impact fish, marine, and other natural resources in the area to the extent that it is contrary to the public interest. Benedict and Sperling have established, through their opinion testimony, that the installation of the bridge would not have an adverse impact on the shoaling conditions which are occurring at the north and south entrances to the canal. This testimony is correct. The shoaling conditions will occur with or without the construction of the bridge. Moreover, as established through Benedict's testimony, during a flood stage condition, such as a flood tide five feet above mean high water, the bridge would make no notable contribution, in that it would cause a backup of water only in the range of two to three inches. The bridge, when installed, will reduce boat traffic. Nonetheless, at present, boats are not a primary factor in reducing the amount of siltation in the canal and a further reduction in the contribution which those boats make to reduction of siltation is inconsequential. Any positive contribution by boat traffic in reducing siltation is offset by the negative impact of that traffic on water quality. On the subject of hydrographic changes to be brought about by the installation of the bridge, there will be no substantial alteration or impediment to the flow of water in the Stockton Canal to an extent that it is contrary to the public interest. As briefly alluded to before, there will be some impacts upon navigation in the canal; however, those impacts do not reach the level of becoming a hazard to navigation or a serious impediment to navigation contrary to the public interest. At present, approximately 20 boats may use the canal in a weekend according to the testimony of Fred Brundick. The canal already has a "no wake" zone and the placement of the bridge will not tend to interfere with the speed of boat traffic through the canal. If anything, the placement of the bridge may assist in slowing down boat traffic within the canal for those individuals who tend to disregard the "no wake" zone. The shoaling, which has been spoken to in a prior paragraph, is most severe in the north end where minimum controlling depths of 3.7 feet mean low tide may be found as contrasted with 4.4 feet mean low tide at the south end. Therefore, southern access into the canal is easier for those persons who have residences on the canal and other persons who use the canal, when their boats have deep drafts. Smaller boats will be able to enter the canal from the north and south if the bridge is constructed, in view of the fact that the bridge affords an eight foot clearance. Those boats which would not be able to gain entrance into the canal after the construction of the bridge would be boats which require more than 4.4 feet of draft and greater than eight feet of vertical clearance. H. J. Skelton, a resident of the landside of the north end of the canal, testified in the course of the hearing and indicated that the placement of the bridge would limit the type and size of boat that he might wish to purchase in the future. At present, he does not own a boat or dock at his residence. Witness Brundick also established that he would be precluded from bringing one of his boats to his home because of the placement of the bridge, except at extremely high tide events. That boat is one which is infrequently moored at his home. Raymond Perry Harris, who lives on the canal, has difficulty bringing his boat through the north end at low tide, and he would be unable to utilize the southern entrance at low tide due to the 14 foot clearance necessary for the boat to go under obstacles such as the bridge. He brings this boat to the dock at his home approximately three to four times a month. Although it has been demonstrated that there will be some hindrance to local residents and others due to the placement of the bridge, the only hazard presented by the placement of the bridge concerns boat operators who are not attentive and water-skiers. This latter category of canal users would be utilizing the canal contrary to the "no wake zone, even without the placement of the bridge. Thus, water-skiers and careless boat operators are not the categories of individuals who use the canal and by doing so should cause the rejection of this permit request. On balance, the proposed bridge is not a hazard or impediment to navigation and its restrictions to the utilization of the canal are not contrary to the public interest. The minimal restrictions on navigation are within acceptable limits. The project, in its design, will not require the placement of fill below the line of mean high water. Determination of the mean high water line was made by a registered surveyor and that determination may be found as Respondents' Exhibit No. 5 admitted into evidence. Consequently, no local approval was sought pursuant to Section 253.1245, Florida Statutes (1982). There is no extension to land by the process of the construction of this project. However, there is an area of overhanging vegetation with an underlying undulation/indentation, which by its design causes the vegetation to be slightly above the water at low tide and under water at high tide, with the indentation being configured in a fashion which places the line of mean high water further landward than depicted by the applicant. The locale of these features is at the construction site on the island side. This phenomenon has occurred due to the changes related to erosion. The indentation or cave eroded because of tidal influences and boat traffic, leaving the vegetation mass. The overhang material would be removed, and this process does not involve the extension of land from a point above the line of mean high water into waters of the state. A siltation barrier would be used while this overhang is being cleared, and the sheet piling would be installed at or above the mean high water line, and associated work related to the installation of the pile would be landward of the line of mean high water. The applicant's plans do not show that the piling barrier or bulkhead will follow the configuration of that phenomenon. At present, there is a straight line bulkhead. Nonetheless, the applicant could vary the configuration and prevent the placement of fill in the water. To accommodate this problem from an engineering point of view, the bridge can be lengthened to assure that the bridge spans the entire waterway at the point of the phenomenon and thereby prevent any placement of fill waterward of the line of mean highwater. In addition, the bulkhead can be placed so that it follows the configuration of the undulation. In summary, treatment of the overhang problem will not require the extension of land into waters of the state by the placement of fill below the mean high water line as described in Section 253.1245, Florida Statutes (1982) . Moreover, the removal of the material in the overhang and the placement of the bulkhead to approximate the configuration of the cave and expansion of the bridge span on the island side are not actions which would violate water quality standards of the Department or are contrary to public interest related to conservation of fish, marine wildlife, or other natural resources. Neither will this tend to adversely impact or substantially alter or impede the flow of navigable waters contrary to public interest nor present a navigational hazard or serious impediment to navigation contrary to public interest. There is some indication of concern on the topic of decreased property values for residents on the landside on the proposed bridge. Likewise, testimony was given concerning the opinion of one homeowner that additional traffic would be hazardous to persons living in the present neighborhood adjacent to the canal. Additionally Phillip Fred Baumgardner is a member of the general public and gave testimony to the effect that the installation of the bridge would prohibit certain commercial boats from being able to work the canal. Owen Ganzel, who fishes in the area, expressed concern that the bridge installation would cause a decline in fish population; however, he indicated that lately, the Ortega Island area has improved These concerns are not substantial enough to cause the rejection of this permit application based upon public-interest concerns.
The Issue The issues concern the request by Petitioner for a permit(s) to dredge in a man-made canal and to construct two boat houses and six boat slips.
Findings Of Fact Petitioner owns property in Marion County, Florida, from which he has legal access to a man-made canal that intersects the Oklawaha River. This river is an Outstanding Florida Water body. The canal and river are in Marion County, Florida. In November 3, 1989, Respondent received a permit application from Petitioner. This application sought approval to dredge in the man-made canal which is approximately 800 feet long. That canal is owned by the Canal Authority of Florida. The dredging activity would include removal of material at the mouth of the canal as it intersects the Oklawaha River. The applicant intends to expand by dredging the length in the landward extent of the canal from 60 feet to 120 feet and the width from 50 feet to 170 feet. In the landward extent of the dead-end canal, what is described as the boat basin, the applicant seeks approval for the construction of six boat slips and two boat houses. The relative design of the these activities and the placement of the spoil materials removed in the dredging are shown in the application to include responses to the omissions request. That application is found as the Respondent's Composite Exhibits No. 1. At present the applicant has a 30 foot pontoon boat in the dead-end canal. He has a 17 foot bass boat and his neighbor has a 24 foot pontoon boat that use the canal. With the advent of as many as six boats available for the six slips contemplated by this application, the boats would vary in length from 16 feet to 30 feet. In carrying out the dredging activities Petitioner states that he would use anchored turbidity curtains at the intersection of the canal and the Oklawaha River while dredging activities transpired. The exact location of the proposed project is the south shore of the Oklawaha River in Marion County, Florida, in Section 35, Township 14 South, Range 23 East. On June 1, 1990, Respondent noticed its intent to deny the permit. Following that denial Petitioner timely requested a formal hearing to consider his entitlement to the permit(s). The history of the dead-end canal in question is not clear from the record. Its present condition does suggest that it has existed for a considerable number of years. Its appearance does not reflect that routine maintenance has been performed to preserve its original configuration to include maintaining its original depths throughout its course. At the location where the canal intersects the Oklawaha River, the river runs in an easterly direction for a short stretch. Its flow regime at that point is quite swift. This intersection is in a bend of the river. The high energy flow at that juncture has created an undercut at the mouth of the canal and for some distance on either side. The landward extent of the canal or area of the proposed boat basin is an area which was dredged from uplands. The canal extends in an northerly direction to the river through a wetlands swamp. Spoil material from the original dredging had been placed on the east and west side of the canal. There was sufficient deposition on the west side to allow vehicular traffic. That bank of the canal provides physical access to the river. In the Petitioner's experience, at around the time of the application process the water levels in the river and canal were as low as they had been during his three years of observation. At other times during that three year period the water levels had been approximately two feet higher than the low levels described. It is, however, unclear from the record what the normal high and low ranges of water levels in the river would be at this location. Petitioner has observed that the water levels in the canal during the time in question is three feet in most of the canal except at the mouth as it intersects the river where the water level is shallower. As seen in the photographs a great deal of vegetation is present in the water in the canal causing it to be in a marsh like condition. Emergent vegetation exists in certain portions of the canal which indicates a generally permanent shallow water condition. The low water level in the mouth of the canal which has been described is only a few inches deep. The bottom of the canal where it enters the river is more substantial in compaction as compared to the rest of the canal. It is not clear when this compaction occurred, in particular whether it occurred following the original construction of the canal. Navigation is a problem for most boats in the condition of the canal as it was described at the time of hearing. Petitioner describes that he and other fishermen have navigated in the canal when the water levels were high enough to allow that navigation. The canal in its present condition serves as a habitat for wildlife. The wildlife includes blue winged teal, little blue heron, large mouth bass, bream and alligators. In order to mitigate the effects of this project Petitioner has offered to place a recycling water fall in or near the proposed boat basin to allow oxygen to be placed in that basin. This is described in the application documents. Petitioner proposes to landscape the slopes of the basin with boulders and natural vegetation. He proposes to place "no wake" signs along the canal. Notwithstanding the intent to use a turdibity curtain to protect against violations of turdibity standards in the waters in the canal and the adjacent Oklawaha River while dredging, problems of violation of Respondent's turbidity standards are expected to occur. This occurrence is probable given the relatively fast current in the river which precludes the efficient use of turbidity screens or curtains. Dead-end canals such as that envisioned in this project have water quality problems. Enlargement of the dead-end canal does not assist in addressing the problems, even taking into account the intention by Petitioner to recycle water in the proposed boat basin. The water quality standards that are likely to be violated concern dissolved oxygen and BOD (biological oxygen demand). The assurances Petitioner has given about these standards in terms of protections against violations are not reasonable assurances. The addition of six boat slips and the potential for greater use of the canal by boats other than those that presently exist creates an opportunity for other water quality violations. Those possibilities pertain to turbidity problems through the stirring of bottom sediments and a violation of standards for turbidity and nutrients through that process. Oils and greases are associated with the placement of boats in the dead-end canal and a violation of Respondent's water quality standards for oils and greases is possible. During high water events and other flushing events when water from the canal enters the river, the poor quality of that water from the canal will reduce the water quality in the receiving body of water, the Oklawaha River, potentially causing water quality violations in the river. More specifically related to the artificial water fall proposed by Petitioner, such a device is not generally found to be an acceptable solution in addressing any potential water quality problems created by the expansion of the dead-end canal system. In any event, that system of aeration only would address the dissolved oxygen water quality parameter and not other regulatory parameters. The dredging of the canal has adverse affects on the fish and wildlife presently using the waters in the canal through the adverse affect on their habitat. When the water quality is degraded as described it adversely affects public health, safety and welfare for those who use these waters. Petitioner has observed logs jamming in the curve of the river and the accumulation of sand around that area further closing the mouth of the canal. In order to keep the logs free from the canal entrance they have to be moved on a weekly or monthly basis. Petitioner would attempt to save as many trees as possible when dredging in the mouth of the canal. Petitioner intends to sod slopes where dredging occurs and to place berms to keep water from running off into the canal and to prohibit erosion in the area of the boat basin. Petitioner has in mind making it convenient for boats to turn around in the landward end of the dead-end canal and hiding those boats from the sight of persons on the river by keeping them in that area. However, Petitioner acknowledges that when boats negotiate inside the landward extent of the dead- end canal they churn up the bottom sediments and cause problems with water quality. More specifically, Petitioner's right of access to the mouth of the canal is an easement across the property of the Canal Authority of Florida. Petitioner owns the area of the boat basin which is at the far end of the canal. Activities by Petitioner in that portion of the canal about which he does not have ownership rights which violate Respondent's environmental regulations would be adverse to the interest of the Canal Authority of Florida. Petitioner intends to improve the road access along the bank of the canal as it offers access to the river. Two hundred fifty to three hundred feet of the canal length moving away from the river is through a swamp which is marshy with weeded vegetation on its slopes. The rest of the length of the canal is through an uplands. As you move up the slopes in the canal it goes from submerged to transitional to upland species of plants. It is a shallow water system where plants can live inundated or exposed. These are types of plants seen along edges of rivers or lakes where water flows slow. At the mouth of the canal, the compacted substrate has the appearance of what you would find on the edge of a deep creek or river channel. This material is compacted clay or rock with a sand overlay. The area is stabilized. The long term impact of this project is the elimination of vegetation within a marshy system thereby removing habitat for aquatic and semi-aquatic invertebrates and vertebrates and their breeding and feeding areas. In the dead-end canal systems the dissolved oxygen problems are presented by a slow moving regime of water and the suspension of nutrients and materials from the banks of the canal. The bottom materials that are stirred up by boats are transported to the river. Ordinarily canals are too deep to support the form of emergent vegetation found in some portions of the canal. The deeper the canal the more difficult the water problems, and the flushing times take longer. This is especially true with long canals such as the one at issue. This contributes to problems with violation of standards related to DO and BOD. While the canal itself is not an Outstanding Florida Water, the Oklawaha River's ambient water quality is at risk with the dredging activities contemplated by this project.
Recommendation Based upon the consideration of the facts found and conclusions of law reached, it is recommended that a Final Order be entered which denies the permit(s) for dredging and construction of boat slips and docks. RECOMMENDED this 21st day of February, 1991, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5734 Having considered the proposed facts of the Respondent they are subordinate to facts found. COPIES FURNISHED: Carol Browner, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 C. W. Pardee, Jr. 2769 Northeast 32nd Place Ocala, FL 32670 Douglas H. MacLaughlin, Esquire State of Florida, Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issues in this case are: (1) whether proposals by Richard and Mildred Olson to widen an existing bridge (designated Bridge 1) and construct two new pedestrian bridges (designated Bridges 2 and 4) across Bessey Creek in Martin County, Florida, qualify for the Noticed General Permit established by Rule 62-341.475; and (2) whether Petitioner participated in this proceeding for an improper purpose under Section 120.595(1). (Citations to sections are to the 2000 codification of Florida Statutes. Rule citations are to the current Florida Administrative Code.)
Findings Of Fact Richard and Mildred Olson own property in Rustic Hills Phase III in Martin County, Florida. The Olsons own lots 191, 192, 195, 212, 213, and 214. Each lot is approximately two acres in size. The Olson home is on lot 213, and a rental home is on lot 195. On their property, the Olsons raise miniature goats, guinea hens, and peacocks; they also have ducks, geese, chickens, and dogs. Bessey Creek winds through Rustic Hills and the Olsons' lots. The Olsons propose to use DEP's NGP for Minor Activities established by adoption of Rule 62-341.475 to widen one existing bridge and construct two others for access to their property across Bessey Creek. Bessey Creek is a tributary of the St. Lucie River, through man-made Canal 23. Navigating upstream on Bessey Creek, a boat would have to pass under the Murphy Road Bridge, which is 9 feet, one inch above mean high water (MHW), just before reaching the first of the four bridges involved in this case, Bridge 1. Bridge 1 is a steel span bridge (with no pilings in the water) that connects two portions of lot 191, which is split by the creek. The Olsons propose to widen existing Bridge 1. It is not clear from the evidence whether pilings will be required to widen Bridge 1. But it seems clear that a centerline stream clearance (horizontal width) of 16 feet and a bridge height above mean high water (MHW) (vertical clearance) of 9 feet will be maintained. Proposed pedestrian Bridge 2 is the next bridge upstream, at a point where the creek is only approximately 24 feet wide from MHW to MHW. It is designed to be a 192 square foot piling-supported bridge, with an 8-foot wide by 24-foot long walkway. To support Bridge 2, sets of pilings will placed in the creek bed so as to maintain a centerline stream clearance of 16 feet. The proposed vertical clearance for Bridge 2 is 8 feet above MHW. Existing Bridge 3, the next upstream, is at a point where the creek is approximately 35 feet wide from MHW to MHW. Bridge 3 is a wooden bridge approximately 25 years old. It connects lots 192 and 193 to lot 191. The Olsons use existing Bridge 3 on a daily basis. Bridge 3 was built to span the creek; later, two sets of wooden piles were added. There is a centerline stream clearance of 13 feet between the piles. Vertical clearance is 8 feet above MHW. Proposed pedestrian Bridge 4, the farthest upstream, is designed in the same manner as proposed pedestrian Bridge 2. It is located at a point where the creek is approximately 35 feet wide from MHW to MHW. Bridge 4 will connect lots 195 and 212. Navigability Proposed pedestrian Bridges 2 and 4 are designed to have the same 8-foot vertical clearance as existing Bridge 3; they are designed to have three feet more horizontal clearance than existing Bridge 3. Neither they nor widened Bridge 1 will restrict navigation as much as existing structures, natural conditions (including numerous fallen trees, underwater snags and low, overhanging vegetation), and docked boats. The United States Coast Guard and the Florida Fish and Wildlife Conservation Commission (FFWC) concur that the bridges would not have any deleterious effect on the navigation in this area of Bessey Creek. While not specifically alleging impedance of navigation, Petitioner alleged that existing Bridges 1 and 3 are lower than measured by the Olsons' environmental consultant. But there was no evidence to support such a finding. Meanwhile, the Olsons' consultant explained how he determined the vertical clearance of those bridges above MHW by measurements adjusted for MHW using NOAA tide charts. Even if existing Bridges 1 and 3 had less vertical clearance than determined by the Olsons' consultant, Bridges 2 and 4 are designed to have the same vertical clearance as the consultant determined Bridge 3 to have. For that reason, even if the consultant's determinations were incorrect, the vertical clearances of Bridges 2 and 4 are designed to be the same as the vertical clearance of Bridge 3, and the vertical clearance of Bridges 2 and 4 will not impede navigation any more than Bridge 3. Flooding Bessey Creek is a typical tidal creek. It has low volume and low velocity. Being influenced by tidal ebb and flow, its flow is not continuously downstream except during and just after times of high precipitation, such as hurricanes. Under these conditions, build-up of debris around pilings of these bridges would not be expected, and none was observed around at the existing bridges. The chances of vegetation or organic matter building up over time in the area of these bridges to create a beaver dam effect and cause flooding are small. The proposed new pedestrian bridges have four pilings, which is typically less than a single-family dock. The pilings of a single-family dock are closer to the shoreline and, particularly with a boat alongside, would have more potential to trap debris and cause flooding than the proposed bridges. The same can be said of the fallen trees and low, overhanging vegetation existing under natural conditions in Bessey Creek. The proposed bridges are not expected to have an adverse impact of a significant nature with respect to off-site flooding. Petitioner did not present any expert testimony regarding allegations of off-site flooding potential. Dan White testified as a lay person that flooding occurs in the area during times of high precipitation and that Petitioner was concerned that the proposed bridges would exacerbate those conditions. But, while the evidence was clear that flooding is a condition to be expected under certain conditions in low-lying areas like Rustic Hills Phase III, White failed to make any causal connection between existing periodic flooding and the bridges, existing or proposed. Improper Purpose Petitioner's request for hearing, by letter dated November 16, 2000, thanked DEP for "this opportunity to contest the granting of a Noticed General Permit to the Olson's [sic]" and also requested "an Administrative Review to ensure your department has all the information needed to make a fair decision regarding this matter." It also requested: "Since we are a small community, I hope the Department will review this petition in light of the author's lack of familiarity with the specific form and format used by the environmental consultants and those who work with you on a regular basis." Petitioner "respectfully submit[ted] the following information which is required to dispute the Department's actions and to request an Administrative hearing if necessary." In response to Petitioner's letter, DEP referred the matter to DOAH. Apparently, Petitioner (and the other parties) did not receive a copy of the Initial Order. Petitioner, which was not represented by counsel at the time, failed to comply with the Amended Initial Order entered on March 23, 2001. But apparently neither did the Olsons, who also were not represented by counsel at the time, or DEP, which was. The Olsons complained by letter filed April 26, 2001, that Petitioner had not contacted them. But there was no indication or evidence that, up to that point in time, the Olsons attempted to contact Petitioner or DEP, or that DEP attempted to contact Petitioner or the Olsons, in response to the Amended Initial Order. The Joint Response to Initial Order filed by the Olsons and DEP on May 1, 2001, recited that Petitioner's contact person-of-record, Treasurer Jim Fyfe, "no longer was associated with Rustic Hills" and that Petitioner's President, Dan White, was "out of town and could not be reached." Based on the Joint Response to Initial Order filed by DEP and the Olson's, final hearing was scheduled for May 24, 2001. The Order of Pre-Hearing Instructions entered along with the Notice of Hearing on May 3, 2001, required that the parties exchange witness lists and copies of exhibits and file their witness lists by May 14, 2001. Petitioner complied with the requirement to file a witness list and also included a list of exhibits. There was no indication or evidence that Petitioner did not exchange exhibits as well. The Order of Pre-Hearing Instructions also required: "No later than May 18, 2001, the parties shall confer with each other to determine whether this cause can be amicably resolved." When the Olsons' environmental consultant, Bruce Jerner, went to Dan White's home on May 14, 2001, to provide him a copy of the Olsons' exhibits, he invited White to discuss settlement in accordance with the Order of Pre-Hearing Instructions. White responded to the effect that, even if Petitioner did not have a strong case, Petitioner preferred to go to hearing, and White did not want to mediate or discuss settlement with Jerner. At that point, Jerner indicated that he would be sending White a letter confirming the Olsons' attempt to comply with the Order of Pre-Hearing Instructions. The letter dated the next day requested "an informal conference to determine whether the above referenced case can be amicably resolved and avoid hearing proceedings." Significantly, there was no indication or evidence that DEP complied with the Order of Pre-Hearing Instructions in any respect. It appears that DEP distanced itself from the dispute between Petitioner and the Olsons, preferring to allow them to settle or litigate as they saw fit. In view of DEP's noncompliance, DEP at least certainly may not rely on Petitioner's noncompliance as a ground for an award of attorney fees and costs. In addition, while DEP's noncompliance does not excuse Petitioner from complying, it helps put Petitioner's actions in context and is relevant on the question whether Petitioner's noncompliance was evidence of improper purpose. In this regard, White testified to his belief that he had complied with all ALJ orders but did not "know why I would be obligated to respond to the consultant for Mr. Olson with regard to hearing or any other matters." While DEP and the Olsons in part cite Petitioner's failure to follow prehearing procedures, they primarily rely on the weakness of Petitioner's presentation at final hearing and posthearing efforts as evidence of improper purpose. But this evidence must be evaluated along with other factors resulting in the weakness of Petitioner's case. Not only did White misinterpret the Order of Pre- Hearing Instructions, the evidence indicated that he was unfamiliar with the administrative process in general and also was confused about the difference between the administrative hearing scheduled for May 24, 2001, and the County permitting proceedings on the bridges which also were on-going. White indicated repeatedly during final hearing that he and Petitioner had just recently learned more about distinctions between the administrative and County permit proceedings. As a result, White was beginning to recognize that several issues Petitioner had attempted to raise in this administrative proceeding may be relevant to on-going County permit proceedings but not this administrative proceeding. When it was established and explained at final hearing that DEP had no jurisdiction to require demolition or repair of existing bridges in this proceeding, White agreed to withdraw that part of Petitioner's request for relief. When it was established and explained that issues Petitioner raised relating to the "public interest" test under Rules Chapter 21-18 were premature, White did not object to those issues being dropped. Later, when Petitioner attempted to raise water quality issues relating to excrement from Olson livestock crossing these bridges, and it was ruled that no such issue was raised in Petitioner's request for hearing, White accepted the ruling. Final hearing proceeded on the only remaining issue specifically raised by Petitioner (alleged off-site flooding) (together with navigability--an issue addressed in the Olsons' presentation but not raised in Petitioner's request for hearing). To use White's words, Petitioner did not "have a very sophisticated presentation." Petitioner had no expert testimony, and White's lay testimony did not make a causal connection between flooding and the bridges. After the presentation of evidence, Petitioner did not withdraw its request for hearing in view of the evidence presented; but, in fairness, neither was Petitioner asked to do so. Petitioner did not order a Transcript, or a copy after the Olsons ordered a Transcript, and did not file a PRO. It is fairly clear from the evidence that Petitioner did not participate in this proceeding primarily to cause unnecessary delay. Even if Petitioner had never requested a hearing, the Olsons did not have all of the authorizations required of DEP for their proposals. In addition, County permits apparently also are required. It seems reasonably clear that, had Petitioner retained a competent expert to evaluate its case, the expert probably would have advised Petitioner that it would not be able to make a causal connection between flooding and the bridges. Had Petitioner retained counsel prior to final hearing, counsel probably would have advised Petitioner not to proceed with its request for hearing because, without a causal connection between flooding and the bridges, Petitioner would not be able to prevail. But there was no indication or evidence that Petitioner had and disregarded the benefit of professional advice. Under the totality of these circumstances, it was not proven that Petitioner's participation in this proceeding was for an improper purpose--i.e., primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of licensing or securing the approval of the Olsons' applications.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order: denying Petitioner's challenge to the propriety of the Olsons' use of the NGP for minor activities for their proposals; authorizing the Olsons to use the NGP for their proposals (DEP File Nos. 43- 0137548-002 and 43-0158123-002) subject to the design criteria limitations and other conditions in the applicable general permit rules; and denying the Motion for Attorney's Fees from Petitioner under Section 120.595(1). Jurisdiction is reserved to enter a final order on the part of the Motion for Attorney's Fees seeking sanctions under Section 120.569(2)(e). DONE AND ENTERED this 30th day of July, 2001, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 2001. COPIES FURNISHED: Francine M. Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Dan White, President Rustic Phase III Property Owners Association 3337 Southwest Bessey Creek Trail Palm City, Florida 34990 Tim Morell, Esquire 1933 Tom-a-Toe Road Lantana, Florida 33426 Elizabeth P. Bonan, Esquire Cornett, Googe, Ross & Earle, P.A. 401 East Osceola Street Stuart, Florida 32991 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 David B. Struhs, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building Tallahassee, Florida 32399-3000
