The Issue Whether the orders for corrective action DER proposes to enter should be made final against the persons to whom the notice of violation is addressed for the reasons alleged in the notice?
Findings Of Fact Eugene and Marian O. Black, Thomas A. Johnson, Dennis Black, Daniel V. Black and Ronald E. Black do business under the name Gulf Bait & Tackle. Mr. Johnson and Mr. R. E. Black fish for bait from boats that the business moors in a canal on Hernandez Point in Santa Rosa County. The canal enters Class II waters approved for shellfish harvesting in Escambia Bay near East Bay. By 1986, shoaling at the mouth of the canal began to interfere with ingress and egress. The Blacks attributed the shoals to the failure of the sea walls along the canal sides near the mouth. Three hurricanes in rapid succession had left a tattered remnant of the creosote-soaked wooden structures. Vandalism and a ditch the county dug behind the western wall, which stood on county property, also contributed. In October of 1986, perhaps half the sea wall paralleling the eastern canal bank survived. At the southern end of this segment, the sea wall turned a corner and ran east till it reached shore. What had been land inside the corner was badly eroded. Only the four easternmost panels of the southern portion of the sea wall east of the canal remained intact. Water moved freely past wooden piles resembling, in their disconnectedness, a skeleton which most of the flesh had let go. DER's Exhibit No. 1. On January 28, 1986, the Blacks bought "Lot 37, Garcon Subdivision," the Partly submerged parcel once protected by perpendicular seawalls east of the canal. DER's Exhibit No. 8. West of the canal mouth, the Blacks volunteered their time and equipment to install a concrete seawall abutting the county property. Neither the county nor the Blacks sought or obtained a permit for this work. Joseph Charles Harp, a dredge and fill inspector in DER's employ, testified that the western seawall was exempt from permit requirements, although it extends into the bay beyond the mean high water line. Lot Resold The Blacks and Mr. Johnson agreed to sell Lot 37, Garcon Subdivision, to James F. Richardson and Susan M. Richardson for what they had paid for it, and to construct a sea wall, if the Richardsons would furnish materials for the job, as Santa Rosa County had done, for the sea wall west of the canal. In keeping with this agreement, a deed was executed in favor of the Richardsons, DER's Exhibit No. 9, who furnished materials with which, in two weeks' time, the Blacks constructed a vertical, concrete seawall and dredged the canal, using a bulldozer, a crane and a dragline. Before the work was undertaken, neither the Blacks nor the Richardsons sought or obtained a DER permit. The new seawall stands in about the same place the wooden seawall on the eastern side of the canal, which "had been nonfunctional for years," once stood, consisting, as the older structure had, of two perpendicular sections. The new southern leg runs east along a line about one foot south of its predecessor, until it intersects the shore of the bay. DER Finds Project Work on the Richardsons' seawalls was almost done when it came to DER's attention on April 1, 1987. In conversations on site, the Blacks asked Mr. Harp, the dredge and fill inspector, if they could go forward with capping the seawall. The seawalls were in place, and sand dredged from the canal had been deposited between the seawalls and the mean high water line, but the walls had not yet been capped. Mr. Harp, who in any event lacked authority to order work stopped, told them they might. Nobody from DER ever told the Blacks, Mr. Johnson or anybody else that seawalls east of the canal would not require a DER permit. When DER's Mr. Harp told Whitfield Casey that Mr. Casey could repair his own seawall, without a permit, he made it clear that the exemption depended on the seawall's being "functional," when repaired. After the sea wall had been built, Mr. Harp suggested making application for a dredge and fill permit. He assisted Mr. Richardson in filling out an application for an after the fact permit. The Blacks wrote the $100 check in favor of DER that accompanied the Richardsons' application for a permit to dredge and fill, after the fact. Resold Lot Resold In a telephone conversation with Mr. Richardson Mr. Harp learned, about three weeks after the fact, that Mr. Johnson and the Blacks were once again the owners of Lot 37. It was in the course of this conversation that Mr. Richardson relayed an offer to place riprap against the south side of the southern seawall. Having decided against building on Lot 37 after all, Mr. and Mrs. Richardson had reconveyed to Mr. Johnson and the Blacks by warranty deed filed at the courthouse in Milton on May 4, 1987. The way the Richardsons calculate it, the Blacks owe them about $7,000, and they are sure the Blacks and Mr. Johnson will do the right thing by them. In the same telephone conversation in which he apprised Mr. Harp of the reconveyance, Mr. Richardson told him he should, in the future, deal with Mr. Johnson and the Blacks. Mr. Harp understood him to ask that the pending application for an after the fact permit be withdrawn. At hearing, however, Mr. Richardson testified that he never requested that the application be withdrawn. DER sent Mr. Richardson a check for $100, refunding the permit application fee. The check reached him in North Carolina in July, and eventually one of the Blacks. The status of the application was apparently unknown or unclear to Messrs. R. E. Black and Johnson before the final hearing in the present case, however. They expressed a desire to pursue a permit application. Enforcement Proceedings In August of 1987, a meeting among various DER employees, Mr. Johnson and the Blacks yielded more heat than light, and the notice of violation with which the present proceedings began ensued. Perhaps friction at the meeting also inspired the false and wholly baseless insinuations or allegations against DER personnel which mar the petition for administrative proceedings.
Findings Of Fact Nannette K. Scoggins is the owner of the real property located at 5622 Gulf Drive, Holmes Beach, Florida in Manatee County. Nannette K. Scoggins' property, the petitioner's property, 5624 Gulf Drive, and the other adjacent property, 5620 Gulf Drive, are zoned as "A-1 Hotel-Motel" under the City of Holmes Beach Zoning Ordinance. On November 13, 1983, Mrs. Scoggins submitted to DNR an application for a permit for construction seaward of the coastal construction control line (control line). The proposed project, known as Jansea Place, would consist of two multifamily dwellings, four units to a building, divided by a swimming pool. A portion of the most seaward building would extend a maximum of 57 feet seaward of the control line. By letter dated July 11, 1984, DNR notified petitioner that the department was considering the permit application. The petitioner responded by letter dated July 18, 1984, objecting to any construction seaward of the control line. On October 1, 1984, petitioner received notification that DNR intended to recommend approval of the permit. The permit was scheduled for a vote by the Governor and Cabinet on October 16, 1984. The staff of DNR recommended approval of the permit. By telegram dated October 15, 1984, the petitioner requested an administrative hearing, and on October 22, 1984, petitioner filed a petition for a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. The application for permit No. ME-89 is a complete application for permit to construct seaward of the coastal construction control line. On October 5, 1983, the Superintendent of Public Works of the City of Holmes Beach certified that this project does not violate any ordinance of the City of Holmes Beach. The plans for the proposed project are signed and sealed by an architect registered in the State of Florida, and the submitted plans comply with the design standards established in Rule 16B-33.07, Florida Administrative Code to resist adequately the natural forces associated with a 100-year return interval storm event. The plans, specifications, drawings and other information submitted to DNR with the application for permit to construct seaward of the coastal construction control line are complete and accurate, and meet the requirements of DNR for that purpose. Under the provisions of Rule 16B-33, Florida Administrative Code, the application was determined to be complete on August 6, 1984. The proposed construction is located landward of an existing vertical concrete bulkhead. The seawall was built jointly by the Scoggins and Mr. McLean, who owns the property immediately to the south of the Scoggins' property. The seawall was built after the hurricane of 1972 because the existing dune system had been destroyed. Since that time, the mean high water line has continued to encroach landward to the point where it is now east of the wall. However, the seawall is not necessary for the protection of the proposed building. Although the seawall would fail under the direct impact of a major hurricane, the proposed building is adequately designed to withstand the impact erosion, the wave loads, the winds, and the water forces associated with a major hurricane. The necessity and justification for the project's location in relation to the control line is stated in the application, and petitioner has not challenged the necessity or justification. The City of Holmes Beach Zoning Ordinance requires that the buildings be separated by a minimum of 30 feet. Since the proposed buildings are separated by 30 feet, the proposed seaward building is located as far landward as possible without violating the zoning ordinance. Erosion and structural damage occurred as a result of Hurricane Agnes in 1972 and the "No Name" storm in 1982 in the area between 1,000 feet south of the Scoggins' property and 500 feet north of the Scoggins' property. Although the beach was fairly stable from 1974 to 1979, the beach began to erode in 1980. When the seawall was built in 1974, the dune line was even with the seawall. However, as can be seen from a comparison of the photographs taken in June of 1979 with those taken in early 1985, the beach has eroded since June of 1979 and the dune line is now several feet landward of the seawall. The DNR recommendation for approval of the Scoggin's permit application was based upon historical erosion data for the period between 1940 and 1974, which was the most recent data available that could be used to review the project. Mr. Clark stated that the application was recommended for approval based on the design of the proposed building and its alignment with existing structures built seaward of the control line. The proposed project is located landward of a line of existing structures. Although the adjacent properties have been affected by erosion, there was no evidence presented to show that the existing structures located seaward of the control line have been unduly affected by erosion. In 1974, when the seawall was being constructed, the worker building the seawall dug up part of the petitioner's property and destroyed the sea oats he had planted. However, the proposed project has a driveway encircling the building which would provide vehicular access to the seawall if necessary. The proposed project will partially obstruct petitioner's view to the southwest. However, there was no evidence presented that petitioner's property or the other adjacent property, would be adversely affected in any other way by the proposed project. There was no evidence presented that the proposed project would be affected by, or have an effect on, beach or coastal erosion. The proposed project would have no effect on the beach dune system.
Recommendation Upon consideration of the foregoing, it is recommended that DNR issue Permit Number ME-89 to Nannette K. Scoggins. DONE and ENTERED this 28th day of June, 1985, in Tallahassee Leon County Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1985.
Findings Of Fact In 1950, Petitioner acquired lots 8 and 9, block 23, of Lone Palm Beach subdivision, third addition, which lots front on Boca Ciega Bay in Pinellas County, and she has held the property in free simple since. Petitioner's late husband, her predecessor in title, acquired the lots in 1941. They constitute the tip of man-made peninsula jutting bayward from a barrier island bordered on the other side by the Gulf of Mexico. In 1926, the lots did not exist as such, because the peninsula had not yet been built. Petitioner's exhibit No. 10. Since the creation of the lots, their aquatic periphery has varied continually, on account of accretion and reliction. In the first half of the last decade, wooden and metal stakes were sunk along the shoreline, landward of the water's edge. Since then, water has washed away Petitioner's beach, moving the shoreline inland an average distance of approximately thirty feet. Erosion has been more severe along the northern half of Petitioner's beach than along the southern half. Seawalls have been built along adjacent properties on either side of Petitioner's parcel. The evidence did not establish what proportion of this erosion may have been attributable to the effects of Hurricane Agnes or to the location of neighboring seawalls or to any other particular cause. In 1972, the Honorable C. Richard Leavengood, Petitioner's present husband, hired Rupert Osteen, a contractor, to build a seawall. Pinellas County issued a building permit to Mr. Osteen, covering a "Seawall - 356LF - Type D," Petitioner's Exhibit No. 5, on March 14, 1973. (In September of 1951, the Town of Redington Beach had issued a building permit for "Dredging and Filling behind Sea Wall Constructed on [what is now Petitioner's] Rear Property Line.") Construction began, but came to an abrupt halt in July of 1973, when Mr. Osteen was arrested for building a seawall "without having obtained the recommendation of the Chief of Engineers and the Authorization of the Secretary of the Army prior to beginning," a criminal offense of which he was subsequently convicted in the United States District Court for the Middle District of Florida. Respondent's Exhibit No. 4. Before work on the seawall stopped, Petitioner had caused some 4,500 cubic yards of fill dirt to be deposited on the lots. After Mr. Osteen's arrest, Petitioner applied for a fill permit to the Pinellas County Commission, sitting as the Pinellas County Water and Navigation Control Authority. The Authority granted the permit on March 19, 1974, on condition that the seawall be made to tie in with the existing seawall on lot 7, which adjoins Petitioner's property to the west. On or about August 16, 1974, Petitioner applied to the Department of the Army prior to beginning," a criminal offense of which he was subsequently convicted in the United State District Court for the Middle District of Florida. Respondent's Exhibit No. 4. Before work on the seawall stopped, Petitioner had caused some 4,500 cubic yards of fill dirt to be deposited on the lots. After Mr. Osteen's arrest, Petitioner applied for a fill permit to the Pinellas County Commission, sitting as the Pinellas County Water and Navigation Control Authority. The Authority granted the permit on March 19,1974, on condition that the seawall be made to tie in with the existing seawall on lot 7, which adjoins Petitioner's property to the west. On or about August 16, 1974, Petitioner applied to the Department of the Army for a permit, pursuant to Sections 403 and 1344 of Title 33, United States Code. Petitioner applied for the "after the fact" permit at issue in these proceedings on May 10, 1974. At one point in the course of negotiations between Petitioner and Respondent, Mr. Douglas Jones, Chief of Respondent's Bureau of Permitting, indicated that Respondent would permit Petitioner to erect another seawall along the present mean high water line. Eventually, Respondent's staff notified Petitioner that it would recommended denial of an after the fact permit for the existing seawall, and Petitioner filed a request for administrative hearing, which initiated these proceedings. Aerial photographs dating back to 1942 were received in evidence. Respondent's Exhibits Nos. 5 through 11. None of these phontographs show land as far out in the water as the portion of the seawall Mr. Osteen finished. The partially completed seawall is further waterward tan the 1971 interface between land and water. Respondent's Exhibits Nos. 9 and 10. In November of 1973, Alan J. Burdette, Jr., a marine biologist, who is now employed by Respondent, inspected lots 8 and 9 of Lone Palm Beach subdivision and found water in the low area landward of the seawall. More recent photographs indicate that the seawall still stands somewhat offshore. E.g.., Respondent's Exhibit No. 16, taken on September 7, 1977. Mr. Bardette's inspection revealed oyster and fiddler crabs inside the seawall and clams just outside. Mangroves, which were not there at the time construction began, had sprung up. Removal of the seawall would create additional shallow bottom where algae, clams, oysters, mangroves and other marine life could flourish. Mr. R. S. Murali, a hydorgraphic engineer employed by Respondent, visited Petitioner's property the day before the hearing in this matter was held. While he was on the site, the wind blew from the southwest and waves with an average height between eight and nine inches struck Petitioner's unfinished seawall every 1.2 seconds. Mr. Murali discovered evidence of erosion under the seawall, which was caused by wave action. If the seawall were placed more landward, so that waves travelled up a sloping beach before striking it, the erosion problem could be significantly alleviated.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That Petitioner's application for an after the fact fill permit authorizing the seawall which has already been constructed around lots 8 and 9, block 23, of Lone Palm Beach Subdivision, third addition, be denied. DONE and ENTERED this 30th day of November, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 904/488-9675 APPENDIX Paragraph one of Petitioner's Proposed Findings of Fact has been adopted, in substance, insofar as relevant:. Paragraph two of Petitioner's Proposed Findings of Fact has been adopted, in substance, insofar as relevant, except for the date of the permit issued by the Pinellas County Water and Navigation Control Authority, which is immaterial. Paragraph three of Petitioner's Proposed Findings of Fact is apparently predicated on Petitioner's Exhibit No. 12, an uncertified copy of page 74 of Pinellas County's Plat Book 20. Although a handwritten notation on the exhibit reads "Plat Recorded June 21, 1937" such extraneous handwriting on an uncertified copy is not "evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs.". Section 120.58(1)(a), Florida Statutes (1975). The question of the Butler Act's applicability is a question of law rather than of fact and it has not been necessary to decide the question. Paragraph four of Petitioner's Proposed Findings of Fact has not been adopted, for the most part, because of lack of support in the evidence. Paragraph five of Petitioner's Proposed Findings of fact emphasizes that the testimony as to flora and fauna related to a time considerably after application for the after the fact permit was made. While this is true, what is at issue is the ecological consequences of leaving the seawall, so that the relevant time period is the time period beginning when the application was made and extending indefinitely into the future. COPIES FURNISHED: Ms. Carol Haughey, Esq. Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building Tallahassee, Florida 32301 Mr. Ross H. Stanton, Jr., Esq. 280 Florida Federal Building 26274th Street North St. Petersburg, Florida 33704 Ms. Patricia M. Duryee, Esq. Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION DOROTHY B. LEAVENGOOD, Petitioner, vs. CASE NOS. 77-484 STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondents. /
Findings Of Fact Respondent Trevey is constructing condominium units on property adjacent to Oyster Creek in Charlotte County, and seeks to develop waterfront facilities for the use of condominium residents. Oyster Creek is a navigable stream flowing into Lemon Bay and thence into the Gulf of Mexico. The proposed site of Dock No. 1 is along the south bank of Oyster Creek in that portion of the stream which constitutes the main channel. Dock No. 2 would be located on a branch or loop off the main channel. The pedestrian bridge would cross this stream near the proposed site of dock No. 2 and would be part of a nature walk on Respondent Trevey's property situated on the south bank of the main channel. At some earlier time the stream was altered by the dredging of a canal which became the main channel and created the island which is the proposed site of the nature walk. In addition to this canal which forms a portion of the main channel, a network of smaller canals has been constructed on the north side of Oyster Creek, generally across from the sites of the construction proposed herein. These canals provide water access for homeowners in this area. Respondent Trevey observed some 92 boats moored in these canals. The main channel of Oyster Creak provides boater access to Lemon Hay and the Gulf of Mexico. Construction of proposed Dock No. 1 in this channel would therefore affect navigation to some degree. Dock No. 1 has a proposed length of 300 feet and a width of 4 feet. The dock would be built two to three feet away from the south bank of Oyster Creek, thus extending about six feet into the channel. The dock would be used to moor boats, on a "parallel parking" basis. Assuming a boat width of eight feet and proper mooring, protrusion into the stream would be approximately fourteen feet. Creek width in the Dock No. 1 site is about sixty feet. The water is shallow and varies with the seasons and tides. Navigation near the north bank opposite the Dock No. 1 site is not possible due to the presence of a large oyster bed. Therefore boat operators tend to maneuver their craft on the (proposed) dock side of the creek center line. The distance from the deepest part of the creek to the south bank where Dock No. 1 would be located averages about 33 feet. The proposed dock and moored boats would take up nearly half of this distance. Since boaters must stay near the deepest part of the channel, as well as avoid the oyster bed on the north bank, navigation around the dock and moored boats could prove difficult. A hazardous situation could occur when boats were passing in opposite directions in the dock area or when any Dock No. 1 boats were improperly moored. Operation of powerboats in the vicinity of Dock No. 2 is not feasible due to shallow waters nor is this branch of the stream utilized for access to open water. Therefore, construction of Dock No. 2 would not impede navigation. The presence in the area of a paved road, bridges, an industrial park, Petitioner's boat ramp and numerous canals contribute to degradation of water quality, disruption of wildlife and soil erosion. Studies made by Respondents established that water quality would not be further degraded by construction of the proposed facilities, nor would any wildlife or vegetation be significantly disturbed. The facilities are designed and located to avoid creating or contributing to soil erosion.
Recommendation From the foregoing findings of fact and conclusions of law it is RECOMMENDED that the Department of Environmental Regulation issue a permit to Howard Trevey for the construction of the proposed pedestrian bridge, nature walk and Dock No. 2, but deny that portion of the application pertaining to the proposed Dock No. 1. DONE and ORDERED this 5th day of April, 1982, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1982. COPIES FURNISHED: William A. Makela 2642 Titania Road Englewood, Florida 33533 Richard L. Smith, Esquire 2070 Ringling Boulevard Sarasota, Florida 33577 Charles G. Stephens, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Ocean Reef Club, Inc., is the developer of certain lands located on the northern end of Key Largo, Monroe County, Florida. The development began as a fishing village in the 1940's and now includes private residences, a marina, and residential docking facilities. Ocean Reef applied in 1982 to DER for a permit to construct a residential docking facility known as Fisherman's Wharf. The facility was to provide a number of parallel docking spaces with an access channel following an existing tidal creek to the northeast connecting to a waterway known as the Harbor House Basin. The permit was issued on October 5, 1984, authorizing construction of a 4-foot wide parallel dock approximately 600-feet long, the dredging of a turning basin through the excavation of approximately 1800 cubic yards of material and the dredging of some 200 cubic yards from an existing tidal creek along a 480 lineal foot length of the creek to a width of 5-feet; all located in No Name Creek, a tidal creek connecting Harbor House Marina to Pumpkin Creek, in Card Sound, Key Largo, Monroe County, Section 11, Township 59 South, Range 41 East. That permit was extended by a letter dated June 10, 1987, and now carries an expiration date of October 5, 1989. The existing permit held by Ocean Reef Club, valid until 1989, would allow the direct dredging of a tidal creek vegetated by seagrasses over a 400- foot length yielding a direct dredging of seagrasses of some 3000 square feet. During the two-year processing time leading to issuance of the permit, Ocean Reef sold a portion of the property comprising the access channel to third parties who now will not grant their permission authorizing channel construction across their property. As a result, in 1987, Petitioner requested a major modification to permit no. 440601649. Although Petitioner attempted to show that its change of plans had been inconsistently processed by DER as a new permit application when DER was obligated to treat it as a modification of a prior permit which would require no new application, processing, or permit, Petitioner was unable to do so. Petitioner's expert professional land surveyor, Joseph Steinocher,, concurred with DER witnesses Kelly Jo Custer and David Bishof that the Ocean Reef plan changes were so significantly altered as to constitute a wholly new project. Steinocher specifically indicated it was a "significant change in that there is no relationship between the two," and Custer, DER's marina permitting specialist, testified that DER's consistently applied policy is to require all such significant permit modifications to be processed de novo as wholly new permit applications because to do otherwise would not be in the public interest. Custer was also qualified as an expert in marine biology and water quality, and from Custer's viewpoint, the changed plans constitute a new and different project for many reasons but primarily because the project impacts on water which have been designated Outstanding Florida Waters (OFW) during the intervening years. The project revision/new permit application plans changed the configuration of the turning basin, providing for a kidney-shaped upland basin with the utilization of an additional portion of No Name Creek, extending Southeasterly toward the entrance of a water body known as Fisherman's Cove. Because the project initially proposed disturbance of wetlands and dredging of mangroves, a mitigation area of some 10,300 square feet was included in the plan. The original proposal called for the straightening of an oxbow in the existing tidal creek and the placement of fill through approximately one-half the reach of the tidal creek to gain access to the dredge area with the fill to be removed after construction. During the processing of the latest permit application, adverse comments were received from DER staff members, and the Petitioner modified the application to eliminate the straightening of the oxbow. The pending proposal involves the construction of 24 boat slips along a floating dock, the installation of boulder rip-rap, and the placement of culverts to allow access to a central island to remain after construction of the docking facility. As a result of prior permit agreements between the parties, Ocean Reef Club had conveyed approximately 730 acres to the State of Florida Board of Trustees of the Internal Improvement Fund by special warranty deed dated March 17, 1982. Petitioner asserted but failed to prove up that all construction involved in the pending proposal is landward of those lands either conveyed by that special warranty deed or otherwise in the control of the State of Florida and in fact would be wholly upon its own property. Even had the private property encapsulation of the construction been established, Petitioner's registered land surveyor admitted that the tidal creek entrance is within the limits of the deed to the State of Florida. Access for the proposed 24-slip facility will be through the existing tidal creek that has water depths ranging from minus 2.2 feet to in excess of minus 8 feet at low tide. The earlier proposal would have required only a small portion of the natural creek to be used by motor boats. The project contemplated in 1984 and the one which is the subject of the present litigation are not comparable either biologically nor legally. It is noted that one condition of the 1984 permit even required navigational barriers to be placed at the mouth of No Name Creek. Accordingly, it is specifically found that the significant plan changes render the pending Ocean Reef permit application truly a new project rather than a minor modification as contemplated by Chapter 17-12 F.A.C. Petitioner also attempted to demonstrate that DER's denial of the new permit application was inconsistent with its issuance of permits for similar marina projects in other locations. Neither these allegedly similar applications, supporting plans therefor, nor permits were offered in evidence for comparison. Moreover, for one reason or another, some of the named projects differed so much from the subject application that one witness, Kenneth L. Eckternacht, expert in hydrographic engineering, physical oceanography, and navigation, characterized the comparison as "apples to monkies." Some projects could only be compared to the applicant's proposal by one similar component, i.e. elimination of, and mitigation with regard to, mangroves. For this reason, Dr. Snedeker's limited testimony in this regard is discounted. Some projects could not be conclusively identified as within OFW. None involved the use of the type of creek system involved in the instant project. Ocean Reef Club also could not show that the current permit denial is inconsistent with the granting of the permit for the project as previously conceived in 1984, and which project cannot now be constructed due to Ocean Reef's sale of certain land to uncooperative third parties. As set forth in the foregoing findings of fact, the two projects are neither biologically nor legally identical or even clearly comparable. Petitioner's assertion that it has proposed special or enhanced mitigation because the existing permit, still valid until 1989 but now impossible to comply with, allows direct dredging of approximately 3,000 square feet while the present permit application, as modified, would not require dredging this 3,000 feet, is rejected. Under the new project plans, the proposed basin will be located immediately adjacent to the existing tidal creek which would provide the navigational access to and from the basin. The connection will be created between the basin and the creek by excavating only 100-150 square feet of mangroves which lie between the creek and the area of the proposed basin. In making the immediately foregoing finding of fact, the testimony of witnesses has been reconciled without imputing any lack of credibility to any of them. Respondent's expert, Kelly Jo Custer, expert in marine biology and water quality and also their agency marina specialist, testified that the cross-hatching on the project plans, if read to scale, confirms the testimony of Petitioner's witnesses that the square footage of mangroves to be removed is 100-150 square feet and that the cross-hatching must take precedence over the raw number copied onto the plans. The wetlands in and around the project site, including No Name Creek, are within an OFW, specifically the Florida Keys Special Waters. The project site is located in North Key Largo, approximately one-half mile north of John Pennekamp State Park within the Atlantic Ocean and adjacent to the Biscayne Bay/Card Sound Aquatic Preserve. All of these waters are Class III surface waters. The marina basin itself will be excavated to a depth of minus four feet mean low water. The 24 proposed boatslips will accommodate moorage of boats as large as 25 feet with a draft of two feet. The marina basin will enhance recreational values and channel, despite its greater depth, and at the inner portions of its several bends. It is also implausible that Petitioner's plans to limit boat size through condominium documents to be enforced through a homeowners association, to install mirrors, signalling devices, and latches at certain points along the creek, and to install tide staffs at creek entrances will prevent potential head-on boat collisions or bottlenecks in No Name Creek. It is equally implausible that these procedures can provide reasonable assurances that there will not be a chronic increase in water turbidity from increased use or damage to biota from propellers and boat impact. The witnesses generally concurred as to the present ecological status of No Name Creek. It contains Cuban shoalweed and turtlegrass scattered with varied density throughout, and especially found in two patches between the proposed basin and the point at which there is a drastic bend or oxbow in the creek. The seagrasses in the creek serve many valuable functions including providing a substrate upon which epiphytes may attach, and providing a source of food and refuge for fish and small invertebrates. Seagrasses also fix carbon which they absorb from the sediments and water column through photosynthesis. Green and red algae found throughout the creek provide habitat and carbon fixing functions similar to that provided by the seagrasses. Corals and sponges are present. Three species of sponge located in the creek are found only in the Florida Keys and nowhere else in the United States. Other creek biota include barnacles and oysters attached to mangrove roots, lobsters, anchovies, needlefish, grunts, mojarres, electric rays, various small fish, and invertebrates. Biological and botanical diversity is an important measure of the creek's rich ecological quality and value. The increased boat use of No Name Creek inherent in this dredging project will adversely affect the quality and diversity of the biota. In a creek of this configuration with mean low tide occurring roughly every 12 hours and NEAP tides approximately every two weeks, direct impact of boat propellers is a certainty. The shallowest parts of the creek tend to be limerock shelves which provide a hospitable substrate for the corals, and which are most susceptible to propeller damage, as are the seagrasses and sponges. Petitioner's assertion through Mr. Castellanos and Dr. Roessler that all boaters can be relied upon to employ tilt motors to best advantage in shallow water so as to avoid overhanging mangrove branches at the creek's edges (shores) and so as to keep their boats within the portion of the channel away from submerged mangrove roots and further can be trusted to proceed slowly enough to allow slow-moving water creatures to escape their propellers is speculative and unrealistically optimistic. Despite all good intentions, the strong currents of this creek and its meandering nature work against the average pleasure boater keeping to the narrow center channel. An even more compelling problem with this project is that increased sustained turbidity from propellers and boat movement within close range of the creek bottom will scour the creek bottom and/or stir up the bottom sediment on a regular basis. Once suspended, bottom particles will be redeposited on the seagrasses, impeding photosynthesis and smothering the sponges and corals. Upon the testimony of Custer, Echternacht, and Skinner, and despite contrary testimony of Roessler and Larsen, it is found that the admittedly strong currents in the creek will not flush the particles sufficiently to alleviate the loose sediment problem, and may actually exacerbate the chronic turbidity problem. Strong currents can create a cyclical situation in which, as the seagrasses die or are uprooted, even more particulate matter is loosened and churned up. Chronic turbidity of No Name Creek has the potential of violating the applicable water quality standards for biological integrity, for turbidity, and for ambient water quality. These impacts will not be offset by Petitioner's creation of 38,100 square feet of new underwater bottom because, although this new area will become vegetated, it will never be as rich or as diverse as the existing bottom. This is also true of the pilings and rip rap in regard to sessile animals/barnacles. Petitioner's plan to replant red mangroves over 10,300 square feet may be sufficient in mitigation of the loss of 100-150 square feet of mangroves by itself (see Finding of Fact 16) but for the foregoing reasons, it does not constitute full mitigation for the new permit application. The project will be of a permanent nature. The project will not adversely affect significant historical and archeological resources.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered denying the requested permit. DONE and RECOMMENDED this 20th day of September, 1988, at Tallahassee, Florida. ELLA JANE DAVIS, 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 20th day of September, 1988. APPENDIX TO RECOMMENDED ORDER DOAH Case No. 87-4660 The following constitute specific rulings upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1, 2, 3, 4, 5, 7, 10, 11, 20, and 25 are accepted. Accepted except for the last sentence which is rejected upon the greater weight of the credible evidence as a whole. Accepted but specifically not adopted as stated because the plan calls for destruction of certain mangroves (100- 150 ft.) and the planting of others as opposed to mere "addition." 6, 9, 12, and 27 are accepted in part and rejected in part. There was a failure of proof by both parties as to whether the Petitioner would or would not be conducting all activities landward of those lands conveyed. Although there is testimony to this effect, none of the surveys introduced nor other competent evidence allow the undersigned to definitely plot the description contained in Exhibit P-9 with respect to the current permit application plans. In any case, the proposals are not dispositive of the material issues in this case. The reservation, if it does apply, supports denial of the permit. See FOF 9. 8, 26, 28, 29, and 32 are rejected as subordinate and unnecessary, and in some cases as mere recitation of testimony or unproved. See next ruling. 13, 14, 15, 16, 17, 18, 19, 21, 22, 30, 31 and 33. Portions of these proposals are accepted in substance as reflected in the FOF. In part, they are rejected as mere recitation of testimony or as subordinate and unnecessary. The remainder is not accepted due to the relative weight of the credible testimony which is reflected in the facts as found. 34-36. Rejected for the reasons set out in FOF 13. Respondent's PFOF 1, 2, 4-6, 9, 11, 14-22, 24-34, 38-43, 48-52, 54, sentence 2 of 57, all except sentence 1 of 59, and 60 are accepted but not necessarily adopted in the interest of space and clarity or because they are cumulative or mere recitations of testimony. 3. Rejected for the reasons set out in FOF 16. Rejected. There was a failure of proof by both parties as to whether the Petitioner would or would not be conducting all activities landward of those lands conveyed. In any case, the proposal is immaterial to the environmental issues dispositive in this case. See FOF 9 and ruling on Petitioner's 6, 9, 12 and 27. Rejected as this was the unproven opinion of Mr. Poppel. No consent judgment is in evidence. 10, 12, and 13. Portions of these proposals are accepted in substance as reflected in the FOF. In part, they are rejected as mere recitation of testimony or as subordinate and unnecessary. The remainder is not accepted due to the relative weight of the credible testimony as reflected as the facts as found. 23, 53, sentence one of 57, and sentence one of 59, are rejected as argument of counsel or statement of position. 35-37, 44-47, 55, 56, 58, and 61-64 are rejected as subordinate, unnecessary or cumulative to the facts as found. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Robert A. Routa, Esquire Post Office Drawer 6506 Tallahassee, Florida 32314-6506 Richard Grosso, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Petitioner is the record owner of Lot 11, Block 4 and Lot 12, Block 2 of Ramrod Shores Marina Section subdivision on Ramrod Key in Monroe County, Florida. These lots lie across Angelfish Road from each other. They both lie across Mariposa Road from Torch Ramrod Channel which leads into Niles Channel which leads into the Gulf of Mexico to the north; to the south Torch Ramrod Channel leads into Newfound Harbor which opens onto the Atlantic Ocean. Mariposa Road appears on a subdivision plat filed in the official records of Monroe County in 1960, and on revisions of the original plat, one of which was filed in 1963, and the more recent of which was filed in 1969. On the two earlier plats, it is recited that "[r]oads shown hereon not previously dedicated or owned by the State or County are hereby dedicated to the perpetual use of the public." The evidence did not show whether Monroe County or any other governmental body had accepted the dedication of Mariposa Road. Cape Sable Corporation, a predecessor in title to petitioner, trucked in oolite fill to construct Mariposa Road; and repaired the road after occasional washouts, a practice which petitioner's immediate predecessor in title, James Brown, continued. Because the rock which was used to build Mariposa Road is loosely packed, water from the channel percolates through the road even when it is not high enough to move across the road in a sheet, which sometimes happens. There are also low lying places in the road through which tidal waters flow onto petitioner's property. Salt water up to a foot deep regularly stands on petitioner's property, which is overgrown with spider mangroves and red mangroves. The mangroves stabilize the shoreline on account of their root systems, which also serve to filter out certain substances which would otherwise run off into the channel. Decaying plant matter produced by the mangroves supports various microorganisms which constitute an early link in the food chain that results in commercial fisheries. Killifish, needlefish, jelly fish and wading birds all frequent petitioner's property in its present state. Covering petitioner's lots with fill would destroy or displace the marine life now flourishing there. Respondent has requested James Brown to remove the fill along Mariposa Road, citing Chapter 403, Florida Statutes, and the Army Corps of Engineers has taken similar action under applicable federal laws. Mr. Brown evinced an intent at the hearing not to comply with these requests, but to work instead to persuade Monroe County to blacktop Mariposa Road. Paving Mariposa Road with blacktop would involve compacting rock or otherwise creating an underbed impermeable to water. Mr. Brown envisions Mariposa Road being upgraded to the level of State Road 4, which it intersects, before being paved. If Mariposa Road were upgraded and paved in this fashion, it would act as a dam keeping tidal waters out of petitioner's lots, unless culverts were installed. In the event Mariposa Road is upgraded and paved and no culverts are installed, the marine habitat which now exists on petitioner's property would be doomed and filling the lots would hasten the process at worst.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioner's application for fill permit unless and until Mariposa Road is upgraded, without installation of culverts, and paved, so that it acts as a dam impervious to the waters of Torch Ramrod Channel. DONE and ENTERED this 17th day of February, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 904/488-9675 COPIES FURNISHED: Mr. Edward B. Johnson, Jr., Esquire 410 Fleming Street Key West, Florida 33040 Mr. Louis F. Hubener, Esquire Montgomery Building 2562 Executive Center Circle East Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION FRANCIS X. ATWATER, Petitioner, vs. CASE NO. 77-1409 DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
The Issue Whether Building permit no. 93-2-4072 issued to Respondents William Lledo, Owner, and Key Marine Equipment, Inc., General Contractor by Monroe County violated Monroe County Comprehensive Plan provisions and Land Development Regulations.
Findings Of Fact On April 28, 1996, Petitioner, Department of Community Affairs (Department), received Monroe County Permit 93-2-4072 issued to Respondents, William Lledo (Lledo) and Key Marine Equipment, Inc., to construct a seawall with a five-foot wide cap which would serve as a docking facility. The project is proposed to be constructed on an undeveloped piece of real property owned by Lledo. The property is known as Lot 37, Sombrero Anglers Club South Subdivision, Boot Key, Monroe County, Florida. The property is located within the Keys Area of Critical State Concern. The proposed seawall/dock will not be supported by pilings or other supports and will not act to stabilize a disturbed shoreline. The shoreline at the subject property is not eroding. An eroding shoreline shows signs of the water undercutting the shoreline and contains no vegetation on the shoreline and submerged shelf. The subject property’s shoreline and adjacent submerged shelf are vegetated. The project will not be replacing a deteriorating seawall or bulkhead. The project, as proposed, requires the placement of fill in a manmade canal below the mean high water line. No principal use or structure has been established on the property nor is there any plan to construct a principal use on the property.
The Issue The issue for determination is whether Petitioner is liable for the costs and expenses incurred by Respondent in responding to a pollutant discharge, occurring on November 6, 1992, at the waters off John Lloyd State Park, Dania, Florida, and for damages to natural resources resulting from the pollutant discharge.
Findings Of Fact On November 6, 1992, a DC-7 airplane crashed off the Atlantic Coast of Florida, more particularly, 100 yards from John Lloyd State Park, and one quarter of a mile north of Dania Pier in Dania, Florida. The DC-7 was a chartered cargo airplane and had departed from Miami International Airport. The DC-7 was chartered from Claudio Castillo by Miguel Delpino, United States General Manager of Aerochago Airlines, to carry cargo for Aerochago Airlines. Even though Aerochago Airlines owned aircraft, its aircraft was unavailable due to maintenance work being performed. During the flight from Miami International Airport, the DC-7 developed engine trouble, i.e., two of its engines failed. The aircraft began to lose altitude. In an attempt to regain altitude, the captain of the aircraft dumped 3,000 gallons of aviation fuel. However, the DC-7 failed to regain altitude and crashed. Remaining on the crashed aircraft were 3,000 gallons of aviation fuel and 150 gallons of motor oil. When the DC-7 crashed, only the crew and two passengers were on board. One of the passengers was Mr. Castillo. On the same day of the crash, the Florida Marine Patrol (FMP) of the Department of Natural Resources, now the Department of Environmental Protection (DEP), arrived at the crash scene at 3:20 a.m. and investigated the crash. The DEP had four employees investigating the crash: three FMP officers and one employee from the Office of Coastal Protection. The remaining aviation fuel and motor oil in the crashed DC-7 was discharging into the coastal waters. The DEP employees attempted to abate the discharge. The equipment necessary for the employees' investigation of the crash and abatement of the discharge and the cost for the equipment were the following: (a) a DEP vehicle at a cost of $7.00; (b) a twin engine vessel at a cost of $120.00; (c) an underwater sealant kit at a cost of $16.66; (d) scuba tanks at a cost of $9.00; and (e) photographs at a cost of $24.00. The total hours expended by DEP's four employees were 36 hours, at a cost of $685.84. Due to the DC-7 leaking aviation fuel and motor oil into Florida's coastal waters, removal of the aircraft from the Atlantic Ocean was necessary. DEP contracted with Resolve Towing and Salvage (RTS) to remove the DC-7. RTS is a discharge cleanup organization approved by DEP. RTS' contractual responsibilities included removal of the entire DC-7 aircraft and all debris within 100 yards of the center of the aircraft; disposal of the aircraft; plugging the engines to help stop the leakage; and removal and delivery of the engines which failed to the National Transportation Safety Board (NTSB) and the Federal Aviation Authority (FAA). Because the submerged DC-7 was located in an environmentally sensitive coral and sea-plant area, RTS was required to use extreme care in removing the aircraft. The contractual cost was fixed at $34,000.00 A DEP employee, Kent Reetz, was at the scene of the crash during RTS' cleanup. His responsibility was to monitor the removal of the DC-7 by RTS and to ensure that the aircraft's removal was in compliance with DEP's standards. During the removal of the DC-7 from the water, the fuselage ruptured, scattering debris which was dangerous to the public and to the coral and sea-plants. DEP determined that RTS was not responsible for the fuselage rupturing, but that the rupture was caused by several storms, prior to the aircraft's removal, and by the aircraft being submerged for an extended period in salt water. DEP contracted with RTS to remove the dangerous debris emitted when the fuselage ruptured. The contractual cost was fixed at $9,050.00 The total contractual cost between DEP and RTS was $43,050.00. DEP paid RTS from the Coastal Protection Trust Fund. In responding to the pollutant discharge, DEP incurred a total cost of $43,912.50. DEP assessed damages to the natural resources based upon the amount of pollutants discharged which were 3,000 gallons of aviation fuel and 150 gallons of motor oil. Using the statutory formula, DEP assessed damages to the natural resources in the amount of $57,898.72. Based upon the costs incurred by DEP in responding to the pollutant discharge in the amount of $43,912.50 and the damages to the natural resources in the amount of $57,898.72, DEP sought reimbursement and compensation from Mr. Castillo in the total amount of $101,811.22. DEP invoiced Mr. Castillo for reimbursement of the costs and for compensation for the damages. DEP provided Mr. Castillo with detailed and itemized expense documents for the costs that it had incurred in responding to the pollutant discharge. The documents showed the expenses incurred, what each expense represented, and the formula for computing each expense. Further, DEP provided Mr. Castillo with a document showing the amount of the damages to the natural resources, the formula for computing the damages, and how the damages were computed. The charter of November 6, 1992, was not the first time that Mr. Delpino had chartered the same DC-7 from Mr. Castillo. Prior to and, again, at the previous charter, Mr. Castillo represented to Mr. Delpino that he, Mr. Castillo, was the owner of the DC-7. The owner of a chartered aircraft is responsible for obtaining the aircraft's crew and insurance and for maintaining the aircraft. For the previous charter, Mr. Castillo was responsible for obtaining the DC-7's crew and the insurance and for maintaining the aircraft. Mr. Delpino had no reason to expect the charter for November 6, 1992, to be any different. Furthermore, Mr. Castillo did not inform Mr. Delpino that the responsibilities would be different. For the present charter, as before, Mr. Castillo handled all matters relating to the crew, insurance, and maintenance. Regarding the insurance, Mr. Castillo presented to Mr. Delpino an insurance certificate which, after the crash, was discovered to be false. Also, regarding maintenance, prior to the crash, the two engines which failed were to be removed and repaired, but, although they were removed, they were returned without being repaired. Mr. Castillo was the owner of the DC-7. Also, the crash of the DC-7 was investigated by several federal governmental agencies, including the FAA, the U.S. Coast Guard, and the NTSB. Both the Coast Guard and the NTSB issued reports on the crash, which identified Mr. Castillo as the owner of the DC-7. Mr. Castillo was responsible for the discharge of the 3,000 gallons of aviation fuel and 150 gallons of motor oil from the DC-7 into Florida's coastal waters.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection (DEP) enter a final order assessing Claudio Castillo $43,912.50 for costs related to DEP responding to the pollutant discharge on November 6, 1992, at Florida's coastal waters off John Lloyd State Park, Dania, Florida, and $57,898.72 for damages to natural resources resulting from the pollutant discharge--all totaling $101,811.22. DONE AND ENTERED this 26th day of August, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1997.
The Issue The issue for consideration in this case is whether Charlotte County should be issued a permit to dredge Stump Pass and Deposit the spoil therefrom on the beach south of the pass.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Lemon Bay Conservancy, Inc., was a nonprofit corporation in the State of Florida whose membership is made up of individuals affected by the health of Lemon Bay. The Department of Natural Resources is the state agency responsible for the regulation and issuance of coastal construction permits pursuant to Chapter 161, Florida Statutes, and Charlotte County is a political subdivision of the State of Florida and the applicant for the permit to dredge Stump Pass which is located within its geographical boundaries. Stump Pass is a maintained coastal inlet located on the west coast of Florida between Manasota Key to the North and Knight Island to the South. It has been in approximately the same location since 1925. It is a wave dominated pass, which means the wave energy, which comes predominantly from the west/northwest, is greater than the tidal energy in the pass, and this wave action has caused the Pass channel to migrate to the south since 1974. The Pass was last dredged in 1980. For various reasons, in November, 1986, the County applied to DNR for a coastal construction permit to "maintenance dredge" a portion of the Pass and utilize the dredged material for renourishment of adjacent beaches on Knight Island. A permit for this type of work is required by the provision of Section 161.041, Florida Statutes. As the application was being reviewed by the Department, several areas were identified for modification. Among these were a reduction in the amount of material to be dredged to 136,000 cubic yards; more specific identification of the beach area to be renourished, (3,000 feet along the west side of Knight Island); and the development and submittal of a Sea Turtle Protection Plan. These modifications were made and submitted by the County in November, 1989, and the application was deemed complete on August 27, 1990. On October 11, 1990, the Department issued its Notice of Intent to Issue the permit. In doing so, it recommended the inclusion of 10 specific conditions. Since the proposed project was determined not to have a significant adverse effect on the sandy beaches, no mitigation plan was required. Since the placement of the sand from the dredging would be on the beach at Knight Island, which is downdrift of the water flow, it was consistent with the requirements of Section 161.142, Florida Statutes. Stump Pass, at its most restrictive point, is less than 100 feet wide. It is an unmarked channel. The existing channel is approximately one mile in length. The channel proposed by Charlotte County, as approved by the Department, would be approximately one half mile in length. In preparing its application for submittal to the Department, the County retained Dr. Michael S. Stephen, a consultant with Coastal Engineering, Inc., and an expert in coastal geology and engineering geology, to evaluate the proposed dredging project, one purpose of which is to provide a safe, navigable channel between the Gulf of Mexico and Lemon Bay and the west coast of Florida waterway system. In the course of his evaluation, Dr. Stephen took bathometric measurements at Stump Pass which were used to define and create a map of the water depths in the area. According to his proposal, the fill from the dredging would be placed on the shore south of the pass in an area which is accompanied by a 10 foot wide public easement which parallels the shoreline and runs north and south along the beach. In light of this, the proposed project would not interfere with the public's right to access to the area except during the construction period. This project is significantly similar to a prior dredging in 1980 and the channel will be essentially the same as on that occasion. A significant difference, however, is that the spoil will, in this case, be placed south of the pass whereas in the previous dredging it was placed on the state park to the north. One of the factors considered by the County in its decision to apply for the permit for this project was the determination that the existing channel is not safe for boats to navigate other than during calm weather in a single file. Dr. Stephen believes that the proposed channel would be safer to navigate because it is shorter than the existing channel; provides a more direct access from the inland waters to the Gulf; and avoids the cross-wave and cross-wind impacts experienced by the use of the current pass. There is substantial evidence by experienced boaters who are commercial fishermen as well as recreational boaters who contend that the safety of the pass at the present time is not an issue. Most of these opponents indicate they have had little if any difficulty in traversing the pass under all but the most extreme conditions, and that preparation plus good judgement will, in most cases, result in a safe transit. A more comprehensive discussion of this subject will be found in several paragraphs below. Historical documentation considered by Dr. Stephen in his analysis of information dating back to between 1895 to 1975, shows that the inlet has been in much the same location since 1925. In 1895, however the pass was north of its present location. Another concern of the Department when determining the appropriateness of a coastal construction application is engineering data relating to inlet stability. This concept considers the inlet as a whole and directs examination of three areas. One is lateral movement; a second is cross sectional stability, (the ability of the inlet to remain open); and a third is hydraulic stability. As was noted above in the discussion concerning the location of the inlet back to 1895, the fact that it has remained in its same location since 1925 indicates that from a migratory standpoint, it is considered stable. In addition, the throat of the pass, the actual area where the water comes through from Lemon Bay out to the Gulf, is also stable in terms of cross sectional stability or "closure parameters." Only the continuation of the channel out into the Gulf has moved to a significant degree. It is this outer portion, the outer channel of the inlet, where the proposed dredging is to take place. It is presently in a north/south configuration, having migrated from the predominantly east/west direction in which it was dredged in 1980. Expert testimony indicates that this migration has been the result of the west/northwest dominant wave action. Evidence also indicates that if this outer channel were not maintained once dredged as proposed, it would return to the location it currently occupies. As a result, Charlotte County seeks to include a maintenance dredging plan at 3 to 5 year intervals as part of its proposed management scenario. Petitioners claim that the current inlet and channel are in their natural locations, and that the channel which will result from the proposed dredging will be unstable and immediately begin to migrate back to the location of the "natural" channel which it presently occupies. In response, the County asserts that while the current channel may indicate stability in the short run, given the historic hydraulic instability of the channel, its current location and alignment are likely to change in the future. As the channel has moved toward the south, it has tended to lengthen and as a channel lengthens, the less hydraulically stable it is as a result of the frictional drag of the water flow through the channel. The longer the channel, the greater the drag, and the greater the drag, the greater the potential for flow interruption. When the channel becomes hydraulically unstable, therefore, hydraulic pressures cause a tendency to cut through the shoals lining the channel and it is the County and Department position that a shortening of the channel, as the proposed project would do, would improve the hydraulic stability of the new channel. Nothing was presented by Petitioners to dispute this and it is so found. The statute also requires the Department to take into consideration shoreline stability when considering an application for a coastal construction permit. While there has been little erosion or accretion to the shoreline north of the pass where the spoil from the 1980 dredging was placed, the area south of the pass has experienced significant erosion due, in part, it would appear, to the southerly migration of the outer channel. Immediately to the south of Monument 23, over a stretch approximately 3,000 feet long, sand has been accreting to the extend of approximately 50 to 60 feet per year. However, south of that area, for approximately 5,000 to 11,000 feet south of the inlet, the shoreline has eroded at approximately 10 feet per year. It is in this eroding area that the sand dredged from the channel would be placed. There are varying theories as to the cause of the shoreline instability the area has experienced. Some place the blame on the 1980 dredging project; others on the current location of the outer channel. Other factors may play a part, however, including major storms, and there is insufficient evidence available to justify the establishment of a causal relationship. Nonetheless, as a condition of the permit, the Department has indicated a requirement for the County to conduct detailed monitoring of the area to determine whether any adverse impacts are being caused by the project, so as to allow the taking of immediate mitigative action through its inlet management plan to moderate the impacts. Ordinarily, the Department, by its standing policy, requires applicants for permits to conduct inlet maintenance activities to submit an inlet management plan prior to approving the application. This plan is required to address various impacts that the activity would have on adjacent coasts and shorelines, and is primarily a means of providing protection of the inlet and coastal system from the harmful effects of construction activities. Here, at the time the County's application was filed, that policy had not been adopted. As a result, no management plan was filed. However, the filing of a management plan within 6 months of the dredging done under the permit has been made a condition of the permit, and any plan filed will require approval by the Governor and Cabinet. It is, generally, the policy of the Department to not allow coastal construction activities in natural inlets. A natural inlet is one that has developed by the natural coastal formulation process, and which has not been modified by man. The Department contends that Stump Pass is not a natural inlet but instead, a "maintained" inlet because portions of the original 1980 dredging are still in place and only the outer channel is subject to the present application. Though the channel dredged in 1980 may have cut through the natural point of entry and exit of water from the Gulf to Lemon Bay and return, the fact is that the depth of the channel is the result of that 1980 dredging and the channel has maintained itself naturally thereafter. It cannot be said, however, that Stump Pass is a natural pass since it includes more than just the outer channel and that additional area, the throat, is still under the influence of the 1980 dredging. Petitioners claim that the Department's program directive 950, which prohibits the alteration or maintenance of any inlet or pass unless a management plan is submitted along with the permit application has not been complied with here and, therefore, approval of the instant application is prohibited. Further, Petitioners urge that the maintenance plan being prepared by the county is not an inlet management plan, which is called for by the program directive. The Department asserts, however, that though the directive was signed by the Executive Director of the Department, it was intended as an internal policy directive only to be used as a tool for coordination between the Department's separate divisions, and because of concerns expressed by various division within the Department, it has never been implemented. It is currently still under revision and the Department has elected not to apply its provisions to this case. In fact, in a previous application, the Department allowed the applicant to proceed with its project without a management plan. The management plan was required, subsequent to accomplishment of the work, as a condition of the permit. Another factor for consideration is the impact of the proposed project on the beach dune system and its effect on the habitat of the sea turtle. The expert testimony of record establishes that the project, rather than having an adverse effect on the turtle population, would have a more beneficial effect by providing a more suitable location for nesting. The site established for the deposition of the dredged spoil is an area of beach currently suffering severe erosion problems, and the placement of sand at that location would provide beach profiles similar to those currently existing on the County's natural beaches. In addition, to protect the existing nesting habitat of the turtle, the Department has required and approved a sea turtle protection plan which, it contends, will guarantee that the project will not have an impact on nesting populations of sea turtles. The testimony of Mr. LeBuff, clearly an expert in the management of the sea turtle population, establishes that the beach area provided to the turtles as a result of this project will consist of a sandy, natural, compatible beach material that is not going to be harmful, and the final slope of the reconstructed beach will be compatible with the natural slope of the beaches within the County. As a result, he is satisfied, and it is found, that there will be no detrimental effect to the turtle population. In its application in support of the permit, the County, and the Department in defense thereof, both contend that the primary purpose for the dredging of Stump Pass is to provide a safe, navigable channel between the Gulf and the waters of Lemon Bay. In support of its claim, the County presented the testimony of several charter boat captains, professional fishermen who have lived in the area for a number of years and who are totally familiar with the pass, having traversed it on numerous occasions under just about every condition. Captain Collette contends that the current maximum depth of the pass is between 4.5 and 5 feet. In the winter tide, it is much shallower with a depth often under 3 feet. Captain Collette refuses to run night charters through the pass because, he contends, it is too dangerous. During foggy weather and thunderstorms, because of the lack of visibility and a paucity of proper markers on the channel, he will not use it. The closest other pass to his anchorage is 13 miles away which, at normal running time, takes between 45 to 60 minutes. Stump Pass is only 3 miles, or 15 minutes, from his anchorage. He has experienced trouble with the channel, especially when the wind is from the west, and he believes that the proposed channel, with its more east/west orientation, will be safer than the current channel. In his opinion, additional markers in the channel would help, but not much. In order to be safer, the channel would have to be a non-moving channel, and he believes that since the proposed channel will be maintenance dredged, it would qualify as such. Petitioner, on the other hand, contends that the channel is safe and is used by numerous boaters safely on a regular basis. The current depth of the channel at the throat of the pass is between 13 to 15 feet at mean low tide. At waypoint 2, in the outer channel, it is 9 to 10 feet, and at waypoint 4, at the southern end of the outer channel, it is 7 feet at mean low tide. The normal tide range at Stump Pass is 1.5 feet, with the exception that during winter and summer, the tides may be as much as 3.5 feet. Petitioner urges, and it is found, that the current channel at Stump Pass has been, since 1985, safely navigated by loaded commercial fishing boats as large as 39 feet in length and which draw in excess of 5 feet of water. Many of these commercial fishermen use the pass at night and in periods of low visibility, though Captain Collette may choose not to. If a boater can read the seas and the breaker bar, Captain Davids, testifying on behalf of the Petitioner, contends that local knowledge of the pass is not necessary. Unfortunately, however, many recreational boaters who make up by far the greatest percentage of users of the pass, may not have the requisite skills to the degree Captain Davids does. Nonetheless, under most conditions, Stump Pass can be safely navigated by recreational boaters who use common sense and who traverse it in a careful, cautions manner. Mr. Atwater, President of the Lemon Bay Conservancy, and himself an experienced boater, opined that the average recreational boater who uses the pass as access to the Gulf has a boat equipped with a compass, depth sounder, VHF radio, and LORAN radio signal navigation device. This may be a more optimistic than factual appraisal of the average boater's equipment, however. In sum, and considering the evidence, it is found that as it currently exists, Stump Pass is less than optimum in its navigability to many average boat owners a good portion of the time, but there has been no evidence presented to conclusively establish that it constitutes a serious safety hazard to the average recreational boater who utilizes common sense in traversing it. The County's application, along with the supporting information accompanying it, was received initially by the Department in December, 1986. It was an application for a maintenance dredging of Stump Pass back to its 1980 condition, and the Department views the project as primarily a maintenance dredging of the outer channel through the ebb tidal shoal. The application was assessed by the Department staff, along with engineering information submitted, and the Department then prepared an agenda item for the Governor and Cabinet recommending approval with special permit conditions. These include, among other things: the standard conditions required for approval of developments seaward of the coastal construction line; the submittal of plans and surveys for the project prior to the start of work; written authority for subsequent maintenance dredging prior to their accomplishment and the placing of future spoil; no additional maintenance dredging without the approval of the Governor and Cabinet of a management plan, (the purpose for this is to allow the Department to monitor the performance and evaluate and provide for mitigation of adverse impacts); the submittal of a sea turtle protection plan before issuance of a notice to proceed, (the subject plan has been received and approved); review of the permit at the five year point; and a proper placement of the spoil. A majority of those conditions have been treated in the findings previously made. The standards used to review the application are found in the provisions of Chapter 161.041, Florida Statutes, and Rule 16B-24, F.A.C.. In its analyses, the Department considered those factors required by the statute and as to the engineering, found it to be adequate. As to the design and effect on the inlet and adjacent beaches, those factors were found to justify approval of the project. Design features were found to be acceptable, and any adverse impact potential to the beach and dunes system were found to be minimal to the point there was none anticipated. Taken together, the Department concluded that the project was consistent with the requirements of both the statute and the rule. On cross examination, Mr. Leadon, the Department's expert, admitted that the proposed channel has the potential to, and a likelihood of, migrating to the south. Department policy is to let natural passes and systems take their natural course. However, this inlet has moved to the point where, in the Department's opinion, it is creating erosional stress to Knight Island. Should the pass continue to move in its current direction, it might create additional erosion of that island. The inlet has been left to take its course since its last dredging in 1980. As a result, it is much like a natural channel at this time, but for the purposes of this application, the Department considers the proposal to be a maintenance dredging of a previously dredged channel, though there has been no other maintenance dredging since 1980. Usually, a maintained channel is dredged every 2 to 3 years, but while the outer channel has migrated, the throat, which was dredged in 1980, has maintained the width and depth of that dredging. This position is found to be reasonable and sustainable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered granting to Charlotte County a coastal construction permit to maintenance dredge Stump Pass and place the dredged material on the Knight Island shorelines consistent with the conditions imposed thereon by the Department. RECOMMENDED in Tallahassee, Florida this 14th day of August, 1991. ARNOLD H. POLLOCK 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 14th day of August, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO 91-0471 The following constituted 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 LEMON BAY CONSERVANCY, INC. 1. & 2. Accepted and incorporated herein. 3. - 5. Accepted and incorporated herein. Rejected as not proven. - 10. Accepted. Accepted. & 13. Accepted. Accepted and incorporated herein. Accepted. Not a Finding of Fact but a comment on the evidence. Not a proper Finding of Fact. Rejected. Accepted. Not a proper Finding of Fact. Accepted. First sentence accepted. Balance not a Finding of Fact but a Conclusion of Law. Accepted. Accepted in part and rejected in part. The shoreline described has moved little during the time described, but as the channel moved south in later years, the shoreline to the south on Knight Island has eroded. & 27. Accepted as comment on the evidence. Not a Finding of Fact but a Conclusion of Law. Accepted. Not a Finding of Fact but a Conclusion of Law. Not a Finding of Fact but a Conclusion of Law. Not a Finding of Fact but argument. & 34. Not a Finding of Fact but a comment on the sufficiency of the evidence. Accepted. Accepted. - 40. Accepted and incorporated herein. 41. - 43. Accepted and incorporated herein. 44. - 46. Accepted. Rejected as not supported by the evidence or record. Not a Finding of Fact but speculation. Accepted. - 53. Accepted. 54. & 55. Accepted. Not a Finding of Fact but legal argument. & 58. Accepted. Legal Argument. & 61. Irrelevant legal argument. Rejected. Not a Finding of Fact but a Conclusion of Law. Irrelevant and exhibit not admitted. FOR THE RESPONDENT, CHARLOTTE COUNTY 1 - 3. Accepted and incorporated herein. 4. - 6. Accepted and incorporated herein. 7. & 8. Accepted. 9. & 10. Accepted and incorporated herein, 11. & 12. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. - 22. Accepted and incorporated herein. Accepted and incorporated herein. & 25. Accepted. Accepted. No such proposed Finding of Fact. & 29. Accepted. Accepted. Accepted. FOR RESPONDENT, DEPARTMENT OF NATURAL RESOURCES 1. & 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. & 6. Accepted and incorporated herein. 7. & 8. More a citation of authority that a Finding of Fact, but accepted. Accepted. & 11. Accepted and incorporated herein. 14. & 15. Accepted. 16. - 20. Accepted and incorporated herein in substance. Not a Finding of Fact but a comment on evidence and background. Accepted. & 24. Accepted. 25. & 26. Accepted and incorporated herein. 27. - 29. Accepted. 30. & 31. Accepted but not controlling. COPIES FURNISHED: Thomas W. Reese, Esquire 123 Eighth Street North St. Petersburg, Florida 33701 Dana M. Wiehle, Esquire Department of Natural Resources 3900 Commonwealth Blvd. Mail Station 35 Tallahassee, Florida 32399 Philip E. Perry, Esquire Patricia A. Petruff, Esquire Dye & Scott, P.A. P.O. Drawer 9480 Bradenton, Florida 34206 Tom Gardner Executive Director Department of Natural Resources 3900 Commonwealth Blvd. Mail Station 10 Tallahassee, Florida 32399-3000 Ken Plante General Counsel DNR 3900 Commonwealth Blvd. Mail Station 10 Tallahassee, Florida 32399-3000
The Issue Whether Florida Administrative Code Rule 62B- 33.008(4)(d) should be determined to be an invalid exercise of delegated legislative authority? The Rule requires that an application for a permit for construction seaward of a coastal construction control line ("CCCL") contain "written evidence, provided by the appropriate local government agency . . ., that the proposed activity . . . does not contravene local setback requirements, zoning, or building codes and is consistent with the State approved Local Comprehensive Plan." Whether a statement alleged to have been made by an employee of the Bureau of Beaches and Wetland Resources in the Department of Environmental Protection ("DEP" or "the Department") violated Section 120.54(1)(a), Florida Statutes? The alleged statement is to the effect that in determining if structures littoral to the coast have established a continuous construction line closer to the mean high water line than the CCCL, the Department uses a 1000-foot distance to structures on either side of the proposed project.
Findings Of Fact The CCCL and Continuous Lines of Construction The CCCL The Legislature has declared it in the public interest to preserve and protect Florida's beaches and the coastal barrier dunes adjacent to them. See § 161.053(1)(a), Fla. Stat. In furtherance of this intent, the Department is empowered to "establish coastal construction control lines on a county basis along the sand beaches of the state fronting the Atlantic Ocean . . .". id., "after it has been determined from a comprehensive engineering study and topographic study that the establishment of such control lines is necessary for the protection of upland properties and the control of beach erosion." § 161.053(2)(a), Fla. Stat. The Department defines "Coastal Construction Control Line" or "CCCL" as "the line established pursuant to the provisions of Section 161.053, F.S., and recorded in the official records of the county, which [delineates] that portion of the beach-dune system subject to severe fluctuations based on a 100-year storm surge, storm waves, or other predictable weather conditions." Fla. Admin. Code R. 62B-33.002(12). Brevard County's CCCL bisects property along the Atlantic Ocean owned by Petitioner and her husband. Continuous Lines of Construction The Department is mandated to exempt from some regulation certain construction that is seaward of a CCCL. See, e.g., Section 161.053(2)(b)1., Florida Statutes, which relates to construction landward of beach armoring. In addition, the Department is granted discretion to permit construction seaward of a CCCL in other instances. One such instance relates to construction landward of "a reasonably continuous and uniform construction line," Section 161.053(5)(b), Florida Statutes (a "Continuous Line of Construction") that is seaward of the CCCL. Subsection 161.053(5)(b): (5) Except in those areas where local zoning and building codes have been established pursuant to sub-section (4), a permit to alter, excavate, or construct on property seaward of established coastal construction control lines may be granted by the department as follows: * * * (b) If in the immediate contiguous or adjacent area a number of existing structures have established a reasonably continuous and uniform construction line closer to the line of mean high water than the foregoing [the coastal construction control lines], and if the existing structures have not been unduly affected by erosion, a proposed structure may, at the discretion of the department, be permitted along such line on written authorization from the department. However, the department shall not contravene setback requirements or zoning or building codes established by a county or municipality which are equal to, or more strict than, those requirements provided herein . . . This proceeding involves a permit for construction seaward of the CCCL and landward or on a Continuous Line of Construction. The lines are in Brevard County where property is owned by both Petitioner and Intervenors, who, together with DEP, comprise the parties to this proceeding. The Parties Petitioner Carol C. Pope resides part-time in a duplex along Wilson Avenue on Cape Canaveral in Brevard County. She owns this oceanfront property, littoral to the Atlantic Ocean, with her husband James M. Pope. Although the property has a Cocoa Beach mailing address, it is not within the city limits of Cocoa Beach. The pre-hearing stipulation filed by all of the parties offers this account of the property's location: "The Pope's property is Lot 11, Block 101, Avon by the Sea, as described in Plat Book 3 page 7, [presumably in the Official Records of Brevard County] and east to Ocean, except the west 13 feet of Lot 11." Ms. Pope is the Petitioner in both of the consolidated cases that comprise this proceeding. The Department Among many duties related to environmental protection, the Department of Environmental Protection is responsible for the administration of Chapter 161, Florida Statutes, Parts I and II, the "Beach and Shore Preservation Act." § 161.011, Fla. Stat. The Act confers on the Department the authority "to adopt rules related to the following provisions of this section [§ 161.053]: establishment of coastal construction control lines; activities seaward of the coastal construction control line; exemptions; property owner agreements; delegation of the program; permitting programs; and violations and penalties." § 161.053(21), Fla. Stat. Pursuant to its rule-making authority in Section 161.053 (together with other specific authority), the Department promulgated Rule Chapter 62B-33: "Office of Beaches and Coastal Systems - Rules and Procedures for Coastal Construction and Excavation (Permits for Construction Seaward of the Coastal Construction Control Line and Fifty-Foot Setback)." Two employees of the Department Tony McNeal, P.E., and Srivinas Tammisetti, P.E., testified at hearing. Both are engineers and both are involved with the Coastal Construction Control Line Program. Mr. McNeal is the program administrator. Mr. Tammisetti is a Professional Engineer II with the Department's Bureau of Beaches and Wetland Resources (the "Bureau"). He is responsible for "coastal armoring projects for the entire state" (tr. 52) and he is the head engineer for Lee County. In his capacity with the Bureau, Mr. Tammisetti reviews applications for activities seaward of the coastal construction control line. The Rays Clifford and Maria Ray are the owners of the property adjacent to Petitioner's property and the holders of Permit No. BE-1083 (the "Permit") issued by the Department in its order filed September 19, 2003. The Permit is the subject of the administrative proceeding initiated by Ms. Pope in DOAH Case No. 03-3981. Events Preceding the Permit's Issuance The Rays applied to DEP for a permit to conduct activities seaward of the CCCL, including construction of an eight-story, multi-family dwelling, a swimming pool and deck, a wooden beach/dune walkway, a parking area, masonry walls, and an exfiltration system. The Department approved the application. The Department's order issuing the Permit is titled "Permit for Construction or Other Activities Pursuant to Section 161.053, Florida Statutes." Intervenor's Ex. 1, Tab 6, pg. 1. The Permit acknowledges the application is for "authorization to conduct . . . activities seaward of the coastal construction line" and describes the location of the proposed project as "landward of the 30-year erosion projection and the existing line of construction established by major structures in the immediate area [the Continuous Line of Construction]." Id. While the application was pending before DEP, Ms. Pope visited the offices of the Department in Tallahassee several times. During the first visit (June 23, 2003), Ms. Pope reviewed the permit file and met with Mr. Tamisetti. At one point in the meeting, Ms. Pope asked Mr. Tamisetti how he determines the existence of Continuous Construction Lines. Ms. Pope testified at hearing that Mr. Tamisetti's answer was to the effect that "we look at a thousand feet on either side of the proposed structure." (Tr. 20). These were not necessarily Mr. Tamisetti's exact words but it is clear from the record that the substance of Ms. Pope's claim of what was said is correct; Mr. Tamisetti told Ms. Pope that the Department uses a thousand-foot distance on either side of a proposed structure in order to determine whether existing structures have established a Continuous Line of Construction seaward of the CCCL. The Rule Among the rules in the chapter for which Section 161.053 served as the sole specific authority is Rule 62B-33.008 (the "Rule"). It bears the catchline "Permit Application Requirements and Procedures." The Petition of Ms. Pope in Case No. 03-3860RX challenges subsection (d) of Section (4) of the Rule: (4) Any person desiring to obtain a permit for construction seaward of the coastal construction control line (CCCL) . . . from the Department . . . shall submit two copies of a completed application form. * * * The application form shall contain the following specific information: * * * (d) Written evidence, provided by the appropriate local governmental agency having jurisdiction over the activity, that the proposed activity, as submitted to the Office, does not contravene local setback requirements, zoning, or building codes and is consistent with the state approved Local Comprehensive Plan. Fla. Admin. Code R. 62B-33.008(4)(d). The Rule implements Section 161.052, "Coastal construction and excavation; regulation" as well as Section 161.053. Petitioner contends that the quoted portion of the Rule should be determined to be invalid because, while the statute directs that DEP in issuing permits of the kind obtained by the Rays "shall not contravene" local setbacks and building and zoning codes, it does not authorize DEP "to rely upon a letter mailed to an applicant from someone employed by an "appropriate" local government to prove that an activity would comply with the statutory directive." Proposed Final Order submitted by Petitioner, p. 18. As pointed out by Ms. Pope in her Proposed Final Order, DEP does not maintain nor does it require applicants for permits related to activity seaward of a CCCL to submit comprehensive land use plans, local setback requirements, zoning or building codes of counties and municipalities along Florida's coast. Instead, as sanctioned (in fact, required) by the Rule, DEP allows applicants to submit written evidence provided by the local government that the proposed activity does not contravene the enumerated regulations and is consistent with the local comprehensive plan. The parties have stipulated that the Department has not delegated its permitting authority under Chapter 161, Florida Statutes, to Brevard County. The Statement The statement made by Mr. Tamisetti (the "Statement") is similar to one he has made many times over the course of his employment with the Department. Without reservation, Mr. Tamisetti testified as much at hearing. The Statement has been interpreted as DEP's common method of prescribing lines of continuous construction by at least one member of the public. A professional engineer who conducts coastal engineering analysis, opined in writing to one of his clients that: The DEP has commonly prescribed the "line of continuous construction" by the line established by the average seaward limits of the foundations of the structures within 1000? feet north and 1000? feet south of the subject property or the seaward limits of the most seaward structures within 1000? feet north and south of the subject property Petitioner's Ex. 14, p. 1 following the cover letter. Mr. Tamisetti maintained at hearing, however, that the statement he made to Ms. Pope was not a common method for determining a Continuous Construction Line. Rather, the Statement constituted a starting point for those who inquired about how such lines were determined to exist. The Department does not contend otherwise. In the Pre-hearing Stipulation executed by all parties, the Department's position with regard to the Statement of Mr. Tamisetti is found on page 4: "The statement [that DEP uses a 1000-foot distance on either side of a proposed structure to establish a Continuous Line of Construction] is merely a guideline to allow applicants and their engineers a starting place for providing the Department information regarding the line of construction." The reason for the Statement was discussed by Mr. Tamisetti in his testimony. When a concerned party poses the question of how DEP would determine a Continuous Line of Construction as to a certain site, the question can only be definitively answered by asking questions of that party, in turn, and requesting sufficient data. Responding might entail costs prohibitive to the party. "A thousand feet" is offered as "a starting point . . . to give them something" (tr. 61) as an estimate for whether to pursue the effort to have such a line established. In one project, Mr. Tamisetti offered, the distance from a proposed structure to an existing structure might be "500 feet"; in another "2000 feet." (Tr. 61, 62). Ultimately, Mr. Tamisetti insisted the determination is site specific and cannot be made across the board on the basis of a measurement of 1000 feet. The Permit's Relationship to the Statement Ms. Pope produced evidence of the location of a Continuous Line of Construction determined by DEP to exist for purposes of the Ray's permit, DEP Permit No. BE-1083. She concludes in her proposed final order: [T]he line that DEP depicted approximates the line that would be derived by drawing a line from existing structures within 1000 feet on either side of the structure proposed in BE-1083. (citation to record omitted) The derivation of the line of continuous construction can only be a result of using the foundations of building within 1000-feet on either side of the proposed Michelina Condominium, as readily seen on the DEP April 2002 aerial photograph . . . Proposed Final Order, submitted by Petitioner, p. 8. Furthermore, Ms. Pope points out DEP has two rules relevant to the interrelationship between the permit and her claim that the Statement is a rule in violation of Section 120.54(1)(a), Florida Statutes. Florida Administrative Code Rule 62B-33.005(4), in her view, requires that applications for permits to conduct activity seaward of a CCCL "be 'clearly justified' by the applicant." Id. "Secondly," she asserts, DEP has an existing rule that requires applications to include surveys that depict accurate dimensions and locations of the foundation outlines of any existing structures in the immediate contiguous or adjacent areas that the applicant contends have established a reasonably continuous and uniform construction line. Rule 62B- 33.008(4)(f)15, F.A.C. Id., at 8-9. These rules relate, obviously, to the Permit Case. Coupled with the location of the Continuous Line of Construction determined by DEP with regard to the Rays' application for purpose of the un-promulgated rule challenge, however, they do not overcome other evidence as to how the Bureau determines the existence of Continuous Lines of Construction seaward of CCCLs. That evidence is the testimony of Mr. McNeal, the head of DEP's Coastal Construction Control Line Program. The Testimony of Mr. McNeal Ms. Pope's claim that the only credible evidence in the case demonstrates that the Statement is an un-promulgated rule overlooks convincing credible evidence provided by Mr. McNeal. Mr. McNeal's testimony shows that the Statement is not reflective of a policy followed by DEP that creates rights or imposes duties upon the regulated. It is not reflective of a policy of the Bureau of Beaches and Wetland Resources that does so either. Nor is it reflective of such a policy of the Bureau's Coastal Construction Control Line Program. As explained by Mr. McNeal, if an applicant would like to build on a Continuous Construction Line seaward of the CCCL, the applicant typically must demonstrate that the Continuous Construction Line exists by data provided with the application. Petitioner's Exhibit 7, entitled "Request for Additional Information" was identified by Mr. McNeal at hearing as "a template for our standard information package that comes with the application." (Tr. 40). "The items of information listed [on the request] are numbered to correspond with the item numbers on the application form." Petitioner's Ex. 7, p. 1. The following appears under Item 9: Two copies of a topographic survey drawing of the subject property. The topographic information depicted in the drawing shall be from field survey work performed not more than six months prior to the date of application. The topographic survey drawing shall include the following specific information: * * * - Accurate dimensions and locations of the foundation outlines of any existing structures in the immediate contiguous or adjacent areas that the applicant contends have established a reasonably continuous and uniform construction line if the permit is requested under the provisions of 161.053(5)(b), . . . Florida Statutes . . . (Id., pps. 2-3). There is no reference to the "1000 feet" measurement in the Bureau's Request for Additional Information. Furthermore, when an application is submitted that is incomplete with regard to the location of existing structures, the Department does not always resort to a request for additional information. The Department has an extensive database that includes aerial photographs, GIS images, and topographic information collected with regard to DEP reference monuments spaced along the shoreline. On occasion, the DEP database is sufficient to determine whether such a line exists without additional information provided by the applicant. When a determination of a Continuous Line of Construction is made by DEP, it is made specific to the site of proposed construction on the basis of the information submitted by the applicant or on the basis of publicly held data. The determination is not made on the basis of Mr. Tamisetti's statement to Ms. Pope or on the basis of unwritten policy related to existing structures within 1000 feet of the proposed structures. A Rule of Thumb for Prospective Applicants Mr. McNeal's testimony sheds direct light on the actual practice of DEP and the Bureau of Beaches and Wetland Resources in determining the existence and location of Continuous Lines of Construction. When the Petitioner's case is measured against the Department's, the best for Petitioner that can be said of the Statement is that it is precisely what Mr. Tamisetti claims. It is a "rule of thumb," and a rough one at that, for whether it is worthwhile for a party to pursue the establishment of a Continuous Construction Line in order to conduct activity, including construction, seaward of an established CCCL. It does not constitute an agency statement of general applicability that meets the definition of a "rule" in the Administrative Procedure Act and that is subject to the Act's rule-making requirements.
