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. /
Findings Of Fact Petitioner, Jack E. Moore is the owner of real property in Fort Myers Beach known as Lot 9 of Indian Bayou, a subdivision in Section 33, Township 46 South, Range 24 East, Lee County, Florida. Moore's property is bordered on the north by the waters of Indian Bayou and Estero Bay. The northern portions of Moore's property are vegetated by juvenile and mature red and black mangroves. Red and black mangrove are the dominant species of vegetation on the northernmost portions of the property, waterward of the fill pad on which Moore's house is built. On April 19, 1983, Petitioner applied to DER for a permit to dredge approximately 1480 cubic yards to a depth of 4' mean low water to create a boat basin behind his house on the property referenced above, and to construct a walkway and fishing dock encompassing approximately 1,235 square feet. The proposed project lies and would be performed in waters of the State of Florida. On April 25, 1983, DER notified Petitioner that his application was incomplete and that certain specified information was necessary to evaluate the application and to deem it complete. On May 24, 1983, DER received additional information from Petitioner, in response to its request. However, certain information was still lacking, including aerial photographs, a hydrographic survey, and consent from the Department of Natural Resources (DNR) for the use of state-owned lands which may be involved in the project. On June 1, 1983, DER notified Petitioner that all of the requested information had not been submitted. Petitioner did not respond to DER's correspondence. On July 19, 1983, DER requested Petitioner to notify DER if he wanted to proceed with his application. Petitioner responded on August 1, 1983, that he needed additional time to supply requested information. On September 20, 1983, Petitioner sought advice from DER about whether he could delete the dredging portion of his project and get approval only for the proposed walkway and dock. DER responded by letter on September 28, 1983, notifying Petitioner that the proposal was a major modification of his application, and enclosing a form to be submitted to DER along with such modification. The letter notified Petitioner that even if only the dock was sought to be permitted, DNR approval would still be required, and DER has no control over the DNR approval process. Petitioner did not contact DER in response to its latest correspondences. On November 28, 1983, DER then issued a notice of intent to deny the application for Petitioner's failure to provide necessary information which would render the application complete and fully reviewable by the DER staff. Petitioner has still not provided aerial photographs, a hydrographic survey, or DNR approval to DER, and offered no such evidence at hearing. The aerial photographs are necessary to review the project's potential impacts on surrounding properties and water bodies. The hydrographic survey is essential since Petitioner is proposing to entrain a large body of water which may not be able to meet State water quality standards. DNR approval is required by statute before DER can issue a permit that may involve state-owned lands. The Petitioner's testimony and evidence merely established his belief that he originally thought the dock and channel project exempt, that he thought settlement of federal litigation with the U.S. Army Corps of Engineers and his predecessor in title, permitted the installation of his rip-rap seawall and fill and that, at DER's behest, he later dismantled the dock and partially refilled the hand-dug channel leading to it. Nowhere in Petitioner's case was evidence offered of reasonable assurances that the "pollution events, envisioned by the authority cited below, will not occur, nor that DNR approval of the use of State submerged lands for the project has been secured.
Findings Of Fact Based on the oral and documentary evidence presented at the hearing, my observation of the witnesses and the entire record compiled herein, I make the following findings of fact: On November 17, 1988, Petitioner filed an application with Respondent, Department of Environmental Regulation (DER) for a permit to fill submerged areas waterward of the mean high water line abutting certain property Petitioner owns on Big Pine Key. Petitioner also proposed to place a riprap revetment over seagrass in the submerged area, and pilings for a stilted structure in the submerged areas. Petitioner purchased the lot in question on September 8, 1988. There is no habitable structure currently on the property and Petitioner wishes to build a cottage on the lot. The intended purpose of the filling is to enlarge the existing lot so that Petitioner will have adequate area to build a cottage upon, and to stop any erosion that might be occurring. The area to be filled is within the Florida Keys Special Waters, and is classified as Outstanding Florida Water by the Department of Environmental Regulation pursuant to Rule 17.3041(4)(b), Florida Administrative Code. The area is located within the National Key Deer Wildlife Refuge. The area proposed to be filled is further classified as Class III Waters. Although Petitioner contends that he is simply trying to reclaim a portion of his lot which has eroded, the evidence of erosion was very slight and only found in a small area where the property adjoins the vertical seawall of the adjacent property. This particular section is very different from the rest of the shoreline. There is not much vegetation in this area. Aerial photography taken of the property in 1959 and 1972 demonstrates that there has been not been a significant change in the size of the lot in the last thirty years. This conclusion is supported by the physical evidence at the property site. Petitioner has not affirmatively demonstrated that vegetative stabilization would not prevent any erosion that might be occurring. Along the shoreline of the area to be filled are buttonwoods and sea daisy and mangrove seedlings. The submerged area proposed to be filled is very diverse and productive. It includes seagrasses, several types of algae, several macroinvertibrates, and forage fish. The area to be filled is currently very healthy and there are no signs of heavy boat usage in the area. The algae that exists in the area proposed to be filled serves as a food source for fish, and as a helpful filter of floating particles. The dense, constant growth of seagrass in this area provides food for fish, stabilizes sediments, absorbs pollutants from the water, and provides shelter to fish. Any filling of this area would result in the direct elimination of dense, healthy seagrass beds. The proposed filling will result in a drop in the diversity of organisms existing in the filled area. This will cause a violation of the DER's standards for biological integrity. The proposed construction and filling is expected to violate the DER's Class III standards for turbidity. By directly eliminating an area of productive habitat, this project would adversely affect fish and other aquatic wildlife. The loss of the algae and seagrass vegetation will lead to a decrease in fishery production and marine productivity. The filling proposal does not include any measures designed to mitigate for or offset these expected adverse impacts. The residential structure proposed to be built over the fill is expected to cause additional adverse environmental impacts due to nutrient input from the residence.
The Issue The central issue in this case is whether the Department of Environmental Regulation (Department) should grant a dredge and fill permit which has been requested by the Respondent, William R. Cullen (Applicant). That proposed permit has been opposed by the Petitioners (who will be referred to collectively as Petitioners for convenience sake).
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received, the following findings of fact are made: The Department is the state agency authorized to issue permits pursuant to Chapter 403, Florida Statutes. The Respondent, William R. Cullen, filed an application for a dredge and fill permit to construct a slip marina on June 4, 1985. The original request was subsequently amended to seek approval for a forty-two slip commercial marina. The project site for the Applicant's marina is located at Key Largo, Monroe County, Florida. The site is within Buttonwood Sound, Florida Bay. The property is owned by Mr. Cullen and his family. All of the proposed improvements will be constructed on submerged lands or uplands owned or controlled by the Cullen family. The project site is located within a commercial area of Key Largo and contains frontage on both the water, Buttonwood Sound, and the highway, U.S. Highway 1. The project site has a basin which was created by the excavation of materials used for road construction from the shoreline and the installation of an L-shaped rock jetty which runs roughly perpendicular and then parallel to the shoreline. This jetty was installed during the late 1960s. The water depths within the basin range from 3 feet to approximately 14 feet. The water within the basin is subject to the same tidal considerations as the waters within Buttonwood Sound. There is no interruption of the flow of water in and out of the basin from those waters of the Sound. The water within this basin is within an Outstanding Florida Water as defined in Rule 17-3.041, Florida Administrative Code. The Applicant's plan calls for the excavation of appproximately 30,170 square feet of upland area and the dredging of the existing basin for approximately 18,460 dredged square feet. During the construction phases, the Applicant proposes to install turbidity curtains to limit the adverse effects expected during that time. The improvements are intended to be a permanent alteration to the basin design and will permanently modify the marine life habitat within that basin. The Applicant proposes to remove portions of the existing jetty to allow additional water to flow through the basin unimpeded by the jetty walls. The removal of the jetty walls will expedite the dilution and flushing of potential pollutants from the basin on a tidal frequency. That flushing is purported to assure that the water quality within the basin will not be diminished. However, such pollutants will be flushed into Buttonwood Sound. Stormwater accumulating on the upland project is to flow toward a lower upland area and should not to be dumped into the basin. The proposed marina is to have fueling facilities and the Applicant has agreed to design that system to limit inadvertent spillage. Further, as a condition of the permit, the Applicant has agreed to abide by the Department of Natural Resources' spill contingency plan requirements. The proposed marina is designed to provide portable sewage pumpout facilities for each slip. A permanent pumpout facilities will also be available. The Applicant seeks to attract boats in the range of 30 to 50 feet in length at this facility. While there are a number of other marinas in other areas of Key Largo which might accomodate that size boat, the marinas in the immediate vicinity of this project site are designed for smaller craft. The area within the basin consists of unvegetated bottom, submerged rip-rap, sea grasses, and hardbottom/algae communities--the predominant classifications being the latter two. The deeper hardbottom areas are to be filled and portions of the sea grasses will be dredged in order to configure the proposed docks. Additionally, other sea grass areas will be shaded, and thereby disturbed, by the construction of the docks. There are no historical or archaeological features relevant to the proposed site. The area has not been designated as a critical manatee area, however, manatees do frequent the project vicinity and have been observed feeding immediately adjacent to the basin. The permit proposed for this project requires a water quality monitoring plan. In addition to sampling for coliform, diesel by-products, oils, greases, detergents, oxygen, copper, lead and zinc, the plan requires sampling for aluminum, cadmium, and chromium. The monitoring stations are to be located both within the basin (2 stations) and outside the basin (2 stations). Liveaboards or others continuously docked at the marina will create additional shading which will disrupt and adversely affect the sea grass system. In order to provide access to the marina, the Applicant intends to dredge a channel in an area containing sea grass which is undisputedly within the Outstanding Florida Waters. The Department deemed the subject application was complete on February 23, 1988. The Department did not apply the Keys Rule found in Rule 17-312.400, Florida Administrative Code, to this project. The Department also did not apply the Mitigation Rule found in Rule 17-312.300, Florida Administrative Code, to this project. Michael Dentzau has personally reviewed and processed 250-300 dredge and fill permits during his tenure with the Department. Of those projects he has reviewed, he has not recommended that dense sea grass beds of the type located within this project site be dredged in order to construct a commercial marina. Phillip Edwards was responsible for executing the Intent to Issue in this case. In determining that this project had provided reasonable assurances that water quality standards will not be violated, Mr. Edwards weighed the public interests criteria set forth in Section 403.918, Florida Statutes. Because he received letters purportedly from elected officials, Mr. Edwards presumed that the project was in the public interest. That assumption of fact has not been established by this record. According to Mr. Edwards, the adverse effects expected by this project could be adequately addressed by the permit conditions when weighed against the public interest in favor of the project. Since Mr. Edwards' assumptions as to the public interest in this project have not been established, his conclusion regarding the weight that interest should receive can be given little consideration. The project as proposed by the Applicant will not adversely affect navigation or cause harmful erosion or shoaling. The project as proposed by the Applicant will adversely affect fishing or marine productivity within the basin since it will permanently alter the basin biologically by destroying sea grass. The increased boat traffic within the Sound will also detract from the present recreational uses enjoyed by area residents. According to Mr. Edwards, it is very unusual for the Department to issue a permit when sea grasses will be adversely affected. In the 17 years in which he has reviewed permits, only two occasions merited approval when the destruction of sea grasses to the extent in this case would result. Neither of those cases were factually similar to the case at issue. In those cases, however, elected officials advised Mr. Edwards, as he presumed they had here, that there was a public need for the permit. Increased boat traffic will result in increased manatee mortality due to collisions. In order to assure water quality will not be degraded within a marina, the project should have a short flushing time comparable to healthy natural embayments. In this case, the flushing proposed by the Applicant is dependent, in part, on winds which may be inconsistent or relatively minimal during the summer months.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Environmental Regulation enter a final order denying the permit requested by the Applicant. DONE and ENTERED this 22nd day of August, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1990. APPENDIX TO CASE NOS. 89-3779 et seq. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY PETITIONERS: The first three sentences of paragraph 1 are accepted; the remainder is rejected as argument or irrelevant. Paragraph 2 is accepted. Paragraph 3 is accepted. With regard to paragraph 4, it is accepted that the Department deemed the application complete on February 23, 1988; otherwise, the paragraph is rejected as argument. With regard to paragraph 5, it is accepted that the habitat within the basin is the same as the habitat throughout Florida Bay and that the basin is not "enclosed" hydrologically; otherwise, the paragraph is rejected as argument or comment. Paragraphs 6, 7, 8, 9, 10, 11, and 12 are rejected as argument, conclusions of law, or comment. The paragraphs do not recite facts pertinent to this case. Paragraphs 13, 14, and the first two sentences of paragraph 15 are accepted. The remainder of paragraph IS is rejected as argument. The first two sentences of paragraph 16 are accepted. The remainder of the paragraph is rejected as comment or argument. Paragraph 17 is accepted. Paragraph 18 is rejected as argument. To the extent that paragraph 19 accurately describes Van de Kreeke's assessment of the report it is accepted; otherwise rejected as irrelevant, comment, argument, recitation of testimony or unsupported by the record. The report upon which comment is directed was not offered in this cause to prove its truth/accuracy. Paragraphs 20 through 22 are rejected as comment, argument, recitation of testimony or unsupported by the record-- see comment to paragraph 19 above. Paragraphs 23 through 26 are accepted. Paragraphs 27 and 28 are rejected as argument, comment, or contrary to the weight of the evidence. Paragraphs 29 and 30 are accepted. Paragraph 31 is rejected as argument or contrary to the weight of the evidence. Paragraphs 32 and 33 are accepted. Paragraph 34 is rejected as hearsay, irrelevant, or argument. Paragraph 35 is rejected as comment or argument. Paragraph 36 is accepted. Paragraphs 37 through 40 are rejected as argument or contrary to the weight of the evidence. Paragraphs 41 through 43 are accepted. Paragraph 44 is rejected as contrary to the record. Paragraph 45 is rejected as argument. Paragraph 46 is rejected as argument or contrary to the weight of the evidence. Paragraph 47 is accepted but is comment. Paragraphs 48 and 49 are accepted. Paragraph 50 is rejected as repetitive. Paragraph 51 is rejected as argument or conclusions of law. The first three sentences of paragraph 52 are accepted. The remainder of the paragraph is rejected as argument. The first sentence and that portion of the second sentence of paragraph 53 that ends with the word "authenticity" is accepted. The remainder of the paragraph is rejected as argument or conclusions of law. Paragraphs 54 and 55 are accepted. Paragraph 56 is rejected as irrelevant or hearsay. Paragraph 57 is rejected as hearsay. Paragraph 58 is rejected as argument, comment, or irrelevant. Paragraphs 59 through 66 are accepted. Paragraph 67 is rejected as contrary to the weight of the evidence. Paragraph 68 is rejected as contrary to the weight of the evidence. Paragraphs 69 and 70 are accepted. Paragraph 71 is rejected as repetitive. Paragraph 72 is rejected as argument. The first sentence of paragraph 73 is accepted; the remainder is rejected as contrary to the weight of the evidence. Paragraph 74 is accepted. Paragraphs 75 through 77 are rejected as contrary to the weight of the evidence. Paragraphs 78 and 79 are accepted. Paragraph 80 is rejected as repetitive. With the inclusion of the words "and hardbottom and algae" paragraph 81 is accepted. Paragraph 82 is accepted. Paragraph 83 is accepted. Paragraph 84 is rejected as contrary to the weight of the evidence. 5l. Paragraphs 85 through 89 are accepted. With the substitution of the word "not" for the word "ever" in the last sentence of paragraph 90, it is accepted. Paragraphs 91 through 94 are accepted. Paragraph 95 is rejected as not supported by the record or contrary to the weight of the evidence. Paragraphs 96 through 100 are accepted. Paragraph 101 is rejected as repetitive. Paragraphs 102 through 106 are rejected as argument, comment, or irrelevant. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraph 1 is accepted. Paragraph 2 is rejected as contrary to the weight of the credible evidence. The waters within the basin are of the same origin as they were prior to the creation of the jetty; no artificial body of water was created. With regard to paragraph 3 it is accepted that the jetty was constructed in the late 1960s. Paragraph 4 is accepted. With regard to paragraph 5 it is accepted that that is the applicants proposal no conclusion as to the likelihood of that is reached. Paragraph 5 is accepted. Paragraph 6 is accepted. Inevitably, however, spills will occur and must be considered as an adverse affect of the project. Paragraph 7 is accepted. Paragraph 8 is rejected as unsupported by competent evidence or contrary to the weight of the evidence presented. Paragraph 9 is rejected as contrary to the weight of the evidence. Paragraph 10 is accepted. Paragraph 11 is accepted but is inadequate to offset the adverse affects to manatees. Paragraph 12 is accepted but is inadequate to limit the adverse affects to sea grass. Paragraph 13 is rejected as contrary to the weight of the evidence. Paragraph 14 is rejected as contrary to the weight of the evidence. Paragraph 15 is accepted. Paragraph 16 is accepted. Paragraphs 17 and 18 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE APPLICANT: Paragraphs 1 through the first sentence of paragraph 6 are accepted. The second sentence of paragraph 6 is rejected as contrary to the weight of the evidence. Paragraphs 7 through Il are accepted. Paragraph 12 is rejected as irrelevant. Paragraphs 13 through the first sentence of paragraph 17 are accepted. The remainder of paragraph 17 is rejected as contrary to the weight of the evidence. Paragraph 18 is accepted. Paragraph 19 is rejected as unsupported by the record or contrary to the weight of the evidence. Paragraph 20 is accepted. Paragraphs 21 through 26 are rejected as contrary to the weight of the evidence. Paragraph 27 is rejected as contrary to the weight of the evidence or unsupported by competent evidence. The first sentence of paragraph 28 is accepted, the remainder rejected as speculative, comment, or unsupported by the record. The first sentence of paragraph 29 is accepted, the remainder rejected as contrary to the weight of the evidence. Paragraph 30 is accepted. Paragraph 31 is rejected as contrary to the weight of the evidence. Paragraph 32 is rejected as contrary to the weight of the evidence. Paragraph 33 is accepted but is irrelevant. Paragraph 34 is rejected as contrary to the weight of the evidence. Paragraph 35 is accepted; however, sea grasses not disturbed by dredging will still suffer adverse affects from shading and silting. Paragraph 36 is accepted but see comment to paragraph 35 above. Paragraph 37 is accepted. Paragraph 38 is accepted. Paragraph 39 is accepted but is irrelevant. Paragraph 40 is accepted. Paragraph 41 is accepted. Paragraph 42 is accepted. Paragraph 43 is rejected as irrelevant. Paragraph 44 is rejected as contrary to the weight of the evidence. Paragraph 45 is accepted but it should be noted that is not the extent of the proposal. Paragraph 46 is rejected as contrary to the weight of the evidence. Paragraph 47 is accepted. Paragraph 48 is rejected as contrary to the weight of the evidence. Paragraph 49 is rejected as contrary to the weight of the evidence. COPIES FURNISHED: Pamela Presnell Garvin Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Charles Lee Florida Audubon Society 1101 Audubon Way Maitland, Florida 32751 Robert Routa P.O. Box 6506 Tallahassee, Florida 32314-6506 Linda McMullen McFARLAIN, STERNSTEIN, WILEY & CASSEDY, P.A. 600 First Florida Bank Building Tallahassee, Florida 32301 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 =================================================================
The Issue The issue to be decided in these cases is whether Petitioner, A. Wayne Lujan (Petitioner), was entitled to issuance of five environmental resource permits (ERPs) that Respondent, Department of Environmental Protection (DEP), intended to deny as stated in notices of denial dated October 25, 2019.
Findings Of Fact The following Findings of Fact are based on the stipulations of the parties and the evidence adduced at the final hearing. Parties and Background Petitioner Lujan is the president and a director of Kay Haven Associated Enterprises, Inc. (Key Haven), that owns the five parcels, which are the subject matter of this hearing. Although Key Haven owns numerous lots, it chose to submit ERP applications for the Subject Lots within the Key Haven Tenth Addition plat dated September 1966 (Plat). See Joint Exhibit 84. Joint Exhibit 84 The Subject Lots are located in an unincorporated part of the County on the northwestern edge of a body of land lying north of State Road A1A, identified on the Plat as Raccoon Key. The Subject Lots are approximately half a mile east of the city limits of Key West, Florida. The Subject Lots are all characterized by a small upland portion adjacent to Floral Avenue. The majority of the Subject Lots transition into a mangrove fringe of varying depth and submerged lands containing marine seagrasses and sponges. See Joint Exhibits 81 and 82. Joint Exhibit 81 Joint Exhibit 82 DEP is the administrative agency of the state having the power and duty to protect Florida's air and water resources, and to administer and enforce the provisions of part II of chapter 380, part IV of chapter 373, and chapter 403, Florida Statutes. DEP also administers the provisions of Florida Administrative Code chapters 62-312 and 62-330 regarding activities in wetlands and other surface waters of the state. DEO is the state land planning agency and reviews certain permit applications for consistency with its statutory responsibilities under the Florida Coastal Management Program (FCMP), which includes part II of chapter 163, and part I of chapter 380, Florida Statutes. Relevant to this proceeding, DEO exercises authority over the ACSC program. See § 380.05, Fla. Stat. On July 26, 2018, Petitioner filed five applications for ERPs with DEP. Although certain details within each application differed, the applications all sought to authorize construction of a seawall in the waters of the Gulf of Mexico and in unnamed wetlands within the landward extent of the Gulf of Mexico, a Class III OFW, to remove the entirety of the existing mangrove fringe, and to place fill within wetlands and other surface waters for the construction of single-family residences (Project). The minor differences in each application relate to the length of the seawall and the amount of fill necessary for each lot. Although some testimony was provided concerning the differences, no party argued that the differences were material to the determinations necessary in this proceeding. Accordingly, the factual and legal analysis for the Subject Lots and ERP applications were addressed without distinction herein. DEP forwarded a copy of the applications to DEO for its recommendation. On August 24, 2018, DEO issued objections to approval of the permits citing inconsistency with the Florida Keys ACSC Principles for Guiding Development (PGDs) in section 380.0552(7). DEO also objected based on inconsistencies between the Project and the Monroe County Comprehensive Plan (Comp Plan) and Land Development Code (LDC), which implement the PGDs. DEP's first RAI dated August 24, 2018, included DEO's objections. The first RAI notified Petitioner that DEP had concerns with the Project that included: (1) installation of the vertical seawall; (2) placement of fill within an OFW; (3) direct impacts to marine seagrass bed community without adequate mitigation; and (4) failure to provide stormwater management plans since the Project was a common plan of development. The first RAI contained 19 specific requests for additional information. On October 23, 2018, Petitioner responded to DEP's first RAI by submitting slightly revised plans. The revised Project proposed less of a vertical seawall footprint by adding rip-rap to the side seawalls as a means of containing fill. Petitioner's responses to the 19 specific requests for information can generally be categorized as follows: (1) elimination of some vertical seawalls, but not the ones on the waterward edge of the Subject Lots; (2) no change in the placement of fill; (3) Petitioner would attempt to find appropriate compensatory mitigation for the seagrass impacts; and (4) Petitioner did not consider the Project to be a common plan of development. Regarding DEO's objections, Petitioner stated that "[w]e acknowledge that the project has been forwarded to FWC [Florida Fish and Wildlife Conservation Commission] and DEO and that additional comments and information may be requested by those agencies in order to fully evaluate the application." Petitioner did not substantively address DEO's objections. DEP issued a second RAI on November 21, 2018. DEO again objected in a letter dated November 26, 2018. DEP's second RAI raised the same concerns as the first RAI and acknowledged that four of the 19 specific items were adequately addressed. On January 11, 2019, Petitioner responded to DEP's second RAI by again submitting slightly revised site plans. However, the Project remained generally unchanged, with a proposed vertical seawall on the waterward edge of the lots, rip-rap along the sides, removal of the entire mangrove fringe, and fill of the entire lots eliminating the existing marine seagrasses. DEP issued a third RAI to Petitioner on February 8, 2019. DEO reiterated its objections by letter dated February 8, 2019. The third RAI raised the same concerns as the first and second RAIs, although DEP acknowledged that six of the 19 specific items were adequately addressed. By letter dated April 8, 2019, Petitioner responded to DEP's third RAI. The response again proposed slightly altered site plans from the January 2019 submissions. Petitioner essentially stated that mitigation opportunities were scarce, but had contacted the County and was looking into derelict vessel removal. However, the proposed Project remained generally unchanged, with a proposed vertical seawall on the waterward edge of the lots, rip-rap along the sides, removal of the entire mangrove fringe, and fill of the entire lots eliminating the existing marine seagrasses. As it relates to DEO's objections, Petitioner responded that "[a]fter review of the comments outlined in the [DEO] revised letter, it seems that the DEO objections are related to compliance with the provision[s] of the [Monroe] County [Comp Plan]. We will deal with those issues at the time of local permitting." Petitioner again failed to substantively address DEO's objections. DEP issued its final RAI on May 8, 2019. DEO again objected by letter dated May 6, 2019. This final RAI raised the same concerns as the first, second, and third RAIs. DEP stated that seven of the 19 specific items were not addressed by Petitioner, and that failure to provide a complete response to the prior RAI may result in denial of the ERP applications. On August 29, 2019, Petitioner responded to DEP's final RAI by once again submitting slightly revised plans, and additional information concerning mitigation proposals. However, the Project did not change and Petitioner again failed to substantively address DEO's objections. DEO’s objection letter identified that the ERP applications were inconsistent with the Florida Keys ACSC PGDs, seven Comp Plan policies, and six regulatory provisions of the County's LDC. DEP denied the ERP applications on October 25, 2019. The grounds for denial reiterated the issues not addressed by Petitioner's RAI responses. Specifically: (1) the failure of the Project to provide reasonable assurances concerning direct, secondary, and cumulative impacts to the marine seagrass bed community; (2) continued reliance upon construction of a vertical seawall; (3) failure to provide stormwater management information necessary given the determination that the Project constituted a common plan of development; (4) inconsistency with the FCMP as identified by DEO in its objection letters; and (5) failure to provide reasonable assurances that the Project was clearly in the public interest. Direct Impacts The Project proposed to entirely fill the Subject Lots, contain the fill with vertical seawalls and rip-rap, and construct pile-supported single-family residences. The Project would remove the entire mangrove fringe that aerials and site inspections show is a healthy mix of red, black, and white mangroves along with some green buttonwood. The shallow, open surface waters are dominated by marine seagrasses that vary in density. Petitioner did not make any design modifications to the Project that sought to reduce or eliminate direct impacts to the mangrove fringe and marine seagrasses. Petitioner's resource inventory was done using GIS aerial photography so that the aerial benthic resource surveys submitted to DEP were not ground- truthed. DEP staff conducted physical site inspections and ground-truthing inspections that included swimming in the open surface waters. DEP staff found significant marine seagrasses and sponges that were not mentioned in Petitioner's resource surveys. Depending on the lot, the Project would fill approximately 6,000 square feet of wetlands and other surface waters, i.e., 900 to 2,500 square feet of mangrove habitat and 4,000 to 4,800 square feet of marine seagrass bed habitat. The seawalls depicted in the final version of Petitioner's site plans were "vertical seawalls" because the rip-rap would not face the seawalls to the mean high water line (MHWL). The rip-rap would be placed on submerged resources inside the property lines of the Subject Lots. Also, Petitioner's final plans did not include the mooring of vessels. Vertical seawalls are prohibited in the OFW of the County. Petitioner did not affirmatively demonstrate that fill or shoreline stabilization could be accomplished by using native vegetation instead of vertical seawalls. Secondary Impacts DEP's expert witness, Ms. Mills, testified that Petitioner's ERP applications did not identify any potential secondary impacts. Ms. Mills testified that the expected secondary impacts from the Project included stormwater runoff, shading, and erosion or shoaling. Although the Project plans showed that stormwater would be collected and directed to Floral Avenue, DEP's investigation established that there is no stormwater management system on the side of Floral Avenue abutting the Subject Lots. Thus, the collected and directed stormwater would end up flowing back into the mangrove fringe and surface waters at the lot locations that were not proposed for development, e.g., Lots 36 and 38. The proposed single-family homes are piling-supported structures. Ms. Mills testified that the piling-supported structure would cause shading of the immediate adjacent resources on either side. She identified potential shading impacts to the resources of the undeveloped Lots 36 and 38. In addition, Ms. Mills identified potential erosion or shoaling impacts to the undeveloped Lots 36, 38, and unnamed lots to the left of Lot 40 since they would be surrounded by developed fill on either side. Although Mr. Swakon testified that tidal velocity is low in this area, other aspects, such as effects from wind-driven circulation, were not adequately addressed. Mitigation Petitioner was required to propose mitigation to offset remaining direct and secondary impacts after going through a reduction and elimination exercise. However, Petitioner did not propose any revisions to the Project to reduce or eliminate the direct and secondary impacts identified above. Ms. Mills explained that appropriate mitigation usually provides benefits to the same type of ecological community as the one being impacted. Petitioner's ultimate mitigation proposal was to purchase saltwater credit at a mitigation bank, the Florida Power and Light Everglades Mitigation Bank (FPL EMB). The FPL EMB is located on the mainland of Florida approximately a hundred miles away from the Subject Lots. Ms. Mills testified that saltwater credit would be appropriate to offset and replace the same ecological function of mangroves, but not to offset the submerged benthic communities that would be impacted by the Project. Mr. Swakon testified that calculation of the amount of mitigation credits included a multiplier to address secondary and cumulative impacts, the out-of-kind mitigation, and the dissimilarities in the communities. However, Ms. Mills persuasively testified that the proposed multiplier was not sufficient to justify the three aspects of impact that needed to be offset. Whether to justify dissimilarities between the ecological communities, secondary and cumulative impacts, or the distance of the mitigation site from the Project, the multiplier was not sufficient. Cumulative Impacts The Project is not within a recognized cumulative impact basin of the South Florida Water Management District (SFWMD) for mitigation of impacts purposes. Accordingly, Ms. Mills testified that the plain language of a cumulative impacts analysis is considered. Contiguous lots to the Subject Lots owned by Petitioner could be developed through similar requests in the future. Also, each ERP application's cumulative impact analysis would consider the other four ERP applications as in-house examples of potential future projects. Common Plan of Development Petitioner contested DEP's conclusion that the Project was a common plan of development subject to section 2.0 of the Applicant's Handbook Volume 1 and associated stormwater management requirements. The Project would facilitate the advancement of land uses such as multiple residences, a residential subdivision, or phased site development. The Project comprised a total land area divided into multiple lots or parcels that are under common ownership or control. In total, Petitioner owns 648 lots under common ownership within the Key Haven Tenth and Eleventh Addition. The Subject Lots are all part of a residential subdivision. Thus, the preponderance of the evidence demonstrated that the Project was a common plan of development. For this common plan of development, Petitioner's proposed stormwater management consisted of a cap on the proposed seawalls directing stormwater to swales on each lot. The swales would then direct stormwater to Floral Avenue with no additional treatment or management. During site inspections, DEP staff did not find any evidence of stormwater management along Floral Avenue. Seawalls and Rip-rap The seawalls depicted in the final version of Petitioner's ERP applications would be vertical seawalls because the rip-rap facing the seawall did not come above the MHWL. In addition, the final plans did not include the mooring of vessels. As found above, the Project would place fill, seawalls, and rip-rap on marine seagrasses and sponges. Petitioner failed to affirmatively demonstrate that native vegetation was not sufficient to prevent erosion. The evidence established that Petitioner did not apply for any waiver or variance of applicable ERP rule criteria. FCMP Consistency The evidence demonstrated that Petitioner refused to address DEO's objections based on a mistaken view of the criteria governing ERP applications in the County and the Florida Keys ACSC. Relevant to this proceeding, DEO exercises authority over the ACSC program. See § 380.05, Fla. Stat.; see also § 380.23(6), Fla. Stat. (Each agency charged with implementing statutes and rules that are part of the FCMP, shall be afforded an opportunity to provide DEP with its comments and determination regarding consistency of the activity with those statutes and rules.). Section 380.05(16) prohibits persons from undertaking any development within the Florida Keys ACSC, except in accordance with the PGDs. Thus DEO, as the administrator of the ACSC program, reviewed the ERP applications for consistency with applicable regulatory requirements. DEO issued objections to approval of the permits citing inconsistency with the Florida Keys ACSC PGDs; and inconsistencies between the Project and the County's Comp Plan and LDC which implement the PGDs. DEO identified that the Project would be inconsistent with four PGDs. DEO's expert witness, Ms. Powell, testified that the Project was inconsistent with the PGD, which provides for strengthening local government capabilities for managing land use and development so that the local government is able to achieve these objectives without continuing the ACSC designation. See § 380.0552(7)(a), Fla. Stat. Ms. Powell persuasively testified that the ERP applications were inconsistent with this PGD because the Project would impair the local government's ability to have the ACSC designation removed. Allowing development inconsistent with its regulations would hurt the local government's ability to pursue de-designation. No evidence was presented by Petitioner that the Project would be consistent with this PGD. The second PGD cited by DEO provides for protecting shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife, and their habitat. See § 380.0552(7)(b), Fla. Stat. It was undisputed that the Project would result in total removal of the mangrove and buttonwood fringe on each lot and 100% destruction of existing submerged marine resources. No evidence was presented by Petitioner that the Project would be consistent with this PGD. The third PGD cited by DEO provides for limiting the adverse impacts of development on the quality of water throughout the Florida Keys. See § 380.0552(7)(e), Fla. Stat. Ms. Powell testified that degradation to nearshore water quality from prior dredge and fill activity was one of the reasons for the designation of the Florida Keys as an ACSC. Additionally, as further discussed below, the Project would be inconsistent with the County's Comp Plan policies and LDC regulations that further the goal of protecting the quality of water throughout the Florida Keys ACSC. No evidence was presented by Petitioner that the Project would be consistent with this PGD. The fourth PGD cited by DEO provides for protecting the public health, safety, and welfare of the citizens of the Florida Keys, and maintaining the Florida Keys as a unique Florida resource. See § 380.0552(7)(n), Fla. Stat. As further discussed below, the Project would be inconsistent with the County's Comp Plan and LDC regulations that prohibit the use of structural fill within velocity zones. No evidence was presented by Petitioner that the Project would be consistent with this PGD. Ms. Powell testified that DEO considered the remaining statutory PGDs, and determined they were not particularly applicable to these ERP applications. In accordance with its duties, DEO had also reviewed and approved the County's Comp Plan and LDC as consistent with the statutory PGDs. DEO identified that the Project would be inconsistent with seven Comp Plan policies. They are Policies 102.1.1, 101.5.25, 203.1.1, 204.2.2, 204.2.3, 204.2.4, and 212.5.3. Policy 102.1.1 provides: The County shall protect submerged lands and wetlands. The open space requirement shall be one hundred (100) percent of the following types of wetlands: submerged lands mangroves salt ponds fresh water wetlands fresh water ponds undisturbed salt marsh and buttonwood wetlands Allocated density (dwelling units per acre) shall be assigned to freshwater wetlands and undisturbed salt marsh and buttonwood wetlands only for use as transferable development rights (TDRs) away from these habitats. Submerged lands, salt ponds, freshwater ponds, and mangroves shall not be assigned any density or intensity. Policy 101.5.25 provides that "[t]he allocated densities for submerged lands, salt ponds, freshwater ponds, and mangroves shall be 0 and the maximum net density bonuses shall not be available." Policy 203.1.1 provides that "[t]he open space requirement for mangrove wetlands shall be one hundred (100) percent. No fill or structures shall be permitted in mangrove wetlands except for elevated, pile-supported walkways, docks, piers and utility pilings." Policy 204.2.2 provides: To protect submerged lands and wetlands, the open space requirement shall be 100 percent of the following types of wetlands: submerged lands; mangroves; salt ponds; freshwater wetlands; freshwater ponds; and undisturbed salt marsh and buttonwood wetlands. Allocated density (dwelling units per acre) shall be assigned to freshwater wetlands and undisturbed salt marsh and buttonwood wetland only for use as transferable development rights away from these habitats. Submerged lands, salt ponds, freshwater ponds and mangroves shall not be assigned any density or intensity. Within one (1) year after the adoption of the 2030 Comprehensive Plan, the County shall revise the LDC to include a prohibition of development in salt ponds. Policy 204.2.3 provides: No structures shall be permitted in submerged lands, mangroves, salt ponds, or wetlands, except for elevated, pile-supported walkways, docks, piers, and utility pilings. No fill shall be permitted in submerged lands, mangroves, salt ponds, or wetlands except: as specifically allowed by Objective 212.5 and subsequent Policies; to fill a manmade excavated water body, such as a canal, boat ramp, or swimming pool if the Director of Environmental Resources determines that such filling will not have a significant adverse impact on marine or wetland communities; or as needed for shoreline stabilization or beach renourishment projects with a valid public purpose that furthers the goals of the Monroe County Comprehensive Plan, as determined by the County. Policy 204.2.4 provides: No fill or structures shall be permitted in mangroves or wetlands except as allowed by Policy 204.2.3 (as amended) and for bridges extending over mangroves or wetlands that are required to provide automobile or pedestrian access to dwelling units located on upland areas within the same property for which there is no alternative means of access. Such bridges shall be elevated on pilings such that the natural movement of water, including volume, rate, and direction of flow shall not be disrupted or altered. Upland areas shall include disturbed wetlands that have been lawfully converted into uplands through filling. Policy 212.5.3 provides: Bulkheads, seawalls or other hardened vertical shoreline structures shall be permitted on residential canals and altered shorelines only in the following situations: to replace an existing deteriorated bulkhead or seawall; or to stabilize a severely eroding shoreline area. DEO's expert witness, Ms. Powell, persuasively testified that the Project was inconsistent with all seven policies, because it did not protect the submerged lands and wetlands, did not provide for 100% open space within the submerged lands and wetlands, and provided for the construction of a seawall not excepted from the general prohibition. Petitioner did not present any evidence that the Project was consistent with the cited policies. Instead, Petitioner's witness, Mr. Nelson, testified that he felt certain County regulations would militate in favor of allowing the development. The main factor cited by Mr. Nelson was that the Subject Lots were designated as Tier III parcels under the County's LDC. However, designation of a parcel as Tier III did not conflict with the policies cited by DEO. The more credible and persuasive evidence concerning the Project's compliance with the Comp Plan policies was provided by Ms. Powell, who concluded that the Project was not consistent with those policies. DEO identified that the Project would be inconsistent with six sections of the County's LDC regulations. Those are sections 118-4, 118-10(e), 118-12(k)(2), 122-4(b)(5), 130-157, and 130-162. The LDC regulations are more specific methods for implementing the Comp Plan policies outlined above. Section 118-4 provides: No development activities, except as provided for in this chapter, are permitted in submerged lands, mangroves, salt ponds, freshwater wetlands, freshwater ponds, or in undisturbed salt marsh and buttonwood wetlands; the open space requirement is 100 percent. Allocated density (dwelling units per acre) shall be assigned to freshwater wetlands and undisturbed salt marsh and buttonwood wetlands only for use as transferable development rights away from these habitats. Submerged lands, salt ponds, freshwater ponds and mangroves shall not be assigned any density or intensity. Section 118-10(e), in relevant part, provides: Mangroves, wetlands, and submerged lands. All structures developed, used or occupied on land classified as mangroves, wetlands or submerged lands (all types and all levels of quality) shall be designed, located and constructed such that: Generally. Only docks and docking facilities, boat ramps, walkways, water access walkways, water observation platforms, boat shelters, nonenclosed gazebos, riprap, seawalls, bulkheads, and utility pilings shall be permitted on or over mangroves, wetlands, and submerged lands, subject to the specific restrictions of this subsection. Trimming and/or removal of mangroves shall meet Florida Department of Environmental Protection requirements. * * * (4) Placement of fill. No fill shall be permitted in any mangroves, wetlands, or submerged lands except: As specifically allowed by this Section or by Section 118- 12(k) (Bulkheads, Seawalls, Riprap) and 118-12(l) (Boat Ramps); To fill a manmade, excavated water body such as a canal, boat ramp, boat slip, boat basin or swimming pool if the County Biologist determines that such filling will not have a significant adverse impact on marine or wetland communities; As needed for shoreline stabilization or beach renourishment projects with a valid public purpose that furthers the goals of the Monroe County Comprehensive Plan, as determined by the County Biologist; For bridges extending over salt marsh and/or buttonwood association wetlands that are required to provide automobile or pedestrian access to lawfully established dwelling units located on upland areas within the same property for which there is no alternate means of access. Such bridges shall be elevated on pilings so that the natural movement of water, including volume, rate and direction of flow shall not be disrupted or altered; or As approved for Disturbed Salt Marsh and Buttonwood Association Wetlands with appropriate mitigation as defined by the wetland regulations of subsection (e)(6) of this Section. Section 118-12(k)(2) provides: (2) Vertical type seawalls or bulkheads shall be permitted only to stabilize severely eroding shorelines and only on manmade canals, channels, or basins. Such seawalls or bulkheads shall be permitted only if native vegetation and/or riprap and filter cloth is not a feasible means to control erosion. No new seawalls, bulkheads, or other hardened vertical structures shall be permitted on open water. Section 122-4(b)(5), in relevant part, provides: Coastal high-hazard areas (V zones). Within the areas of special flood hazard are areas designated as coastal high- hazard areas, which have special flood hazards associated with wave wash. The following provisions shall apply in these areas: * * * e. There shall be no fill used as structural support. Section 130-157, Maximum Permanent Residential Density and Minimum Required Open Space, provides at note (a): (a) The allocated densities for submerged lands, salt ponds, freshwater ponds, and mangroves shall be 0 and the maximum net density bonuses shall not be available. Section 130-162, Maximum Densities for Hotel/Motel, Campground, Recreational Vehicle, Seasonal and Institutional Residential Uses, and Minimum Open Space, proves at note (a): (a) The allocated densities for submerged lands, salt ponds, freshwater ponds, and mangroves shall be 0 and the maximum net density bonuses shall not be available. Ms. Powell persuasively testified that the Project was not consistent with the County's LDC regulations in sections 118-4, 118-10(e), 118-12(k)(2), 122- 4(b)(5), 130-157, and 130-162. The Project was inconsistent with the cited LDC regulations because it sought to construct seawall in submerged land, fill portions of the lots subject to a 100% open space requirement, remove the entirety of the existing mangrove fringe, impair 100% of the marine seagrass resources within the Subject Lots, and utilize structural fill within a Federal Emergency Management Agency (FEMA) designated Velocity Zone. The preponderance of the evidence demonstrated that the Project did not meet the criteria of part IV of chapter 62-312 and section 380.0552. The testimony also demonstrated that Petitioner did not apply for a variance or waiver of the County's LDC regulations. Conditions for Issuance Petitioner generally argued that the five applications provided reasonable assurance for issuance of individual ERPs. However, the persuasive and credible evidence established that the Project did not satisfy a majority of the conditions for issuance under rule 62-330.301. Petitioner failed to provide adequate information regarding stormwater management, the impacts of runoff to Floral Avenue, and runoff flowing back into the Gulf of Mexico OFW. This failure resulted in a lack of reasonable assurance that the Project would not cause adverse flooding to on-site or off-site property; would not cause adverse water quantity impacts to receiving waters and adjacent lands; and would not adversely affect the quality of receiving waters. The preponderance of the evidence demonstrated that the Project would adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. Those functions would be 100% impacted and the impacts would not be adequately offset by appropriate mitigation. As found above, the Project would cause adverse secondary impacts to the water resources, adverse impacts to surface water conveyance, and the adverse impacts would not be adequately offset by appropriate mitigation. Additional Conditions for Issuance Petitioner generally contended that the five applications provided reasonable assurance that the Project was clearly in the public interest under rule 62-330.302. However, the persuasive and credible evidence established that the Project did not satisfy a majority of the applicable additional conditions for issuance. The Project would adversely affect the public health, safety, or welfare or the property of others because Petitioner failed to provide adequate information regarding stormwater management. DEP's site inspection found no stormwater management or treatment system on the side of Floral Avenue adjacent to the Subject Lots. Thus, the collected and directed stormwater would end up flowing back into the mangrove fringe and the OFW. The preponderance of the evidence demonstrated that the Project would adversely affect the conservation of fish and wildlife, or their habitat, as a result of the 100% impact to benthic communities, which would not be adequately offset by appropriate mitigation. The preponderance of the evidence demonstrated that the Project would adversely affect marine productivity, the current condition, and the relative value of functions being performed by the impacted areas. Also, the Project would be permanent in nature. The preponderance of the evidence demonstrated that Petitioner failed to provide reasonable assurance that there would not be harmful erosion or shoaling. The Project would not adversely affect or enhance any significant historical and archaeological resources. The Project would not be within a recognized cumulative impact basin of the SFWMD for mitigation of impacts purposes. Contiguous lots to the Subject Lots owned by Petitioner could be developed through similar requests in the future. Each ERP application's cumulative impact analysis would consider the other four ERP applications as in-house examples of potential future projects. Thus, Petitioner did not provide reasonable assurance that each ERP application would not cause unacceptable cumulative impacts upon wetlands and other surface waters.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that DEP enter a final order denying Petitioner's five ERP applications. DONE AND ENTERED this 14th day of April, 2021, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2021. COPIES FURNISHED: Kathryn E.D. Lewis, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 Jay Patrick Reynolds, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 William Moore, Esquire Moore Bowman & Reese, P.A. Suite 100 551 North Cattlemen Road Sarasota, Florida 34232 Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Mail Station 35 Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399 Jon F. Morris, Esquire Brandon W. White, Esquire Department of Economic Opportunity 107 East Madison Street, Mail Station 110 Tallahassee, Florida 32399 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399 Valerie A. Wright, Esquire Department of Economic Opportunity 107 East Madison Street Tallahassee, Florida 32399
Findings Of Fact Respondent, George M. Threadgill, applied on May 5, 1982, for a dredge and fill permit under Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code. The application was for an extension to an existing pier which would be approximately 100 feet long by 4 feet wide with a platform on the end which would be approximately 10 feet long by 14 feet wide. On May 11, 1982, Respondent modified the application by adjusting the angle of the pier extension so it would not extend in front of his neighbor's property. The site of the project was to be on Innerarity Point on Perdido Bay, Escambia County. The existing pier is approximately 90 to 100 feet long. Prior to Hurricane Frederick in September, 1979, the existing pier extended an additional 40 feet into Perdido Bay. The Department of Environmental Regulation is an agency of the State of Florida with jurisdiction under Chapters 403 and 253, Florida Statutes, to regulate and require a permit for the construction of stationary installations within waters of the State. The Department also has permitting jurisdiction over dredge and fill operations in such waters pursuant to Florida Administrative Code Rules 17-4.28(2) and 4.29(1). The water at the project site is extremely shallow. Witnesses O'Neil and George Threadgill established that the water at the end of the existing pier ranges in depth from being dry in the winter to approximately 2 feet 6 inches during normal water levels. At the end of the proposed pier, the water is from 2 feet 9 inches deep to "waist deep" during normal water levels. There are no grass beds or other areas of significant marine vegetation in the area of the project. Expert witness Snowdon demonstrated that the bay bottom in the area consists of various grades of sand. There are no lagoons or inlets on the adjacent shoreline, and there are no navigational channels in the vicinity of the Project area. The construction of the pier extension is not expected to interfere wish wildlife in the area. There will be some amount of turbidity introduced into the water column as a result of placing the pier pilings in the water. Coarse sand of the type found in the area will settle rapidly out of the water column. Significant water quality problems would only be encountered if pockets of sediment are encountered while "jetting" the pilings into the substrate. The use of turbidity control measures will alleviate water quality problems associated with construction. Based on unrefuted expert testimony of witnesses Snowdon and Fancher, no water quality degradation will occur during and after construction of the pier. The majority of boat traffic in the area consists of mullet fishermen. The mullet boats navigate in the project area, but, as even Petitioners admit, they generally run either around or waterward of an iron stake located approximately 500 feet from shore. When the mullet boats do come within the project site, it is merely to pass through. They do not set their mullet nets within the project area. The existence of the pier will not significantly interfere with navigational patterns for commercial and private fishermen, nor for other types of marine craft or purposes. A sandbar approximately 20 to 25 feet wide exists along the shoreline beginning approximately 10 feet in front of the applicant's existing pier. Prior to September, 1979, the existing pier extended past the sandbar. There was no evidence presented that the pier blocked access or navigation at that time. The Petitioners do not object to the pier being rebuilt to its pre-1979 dimensions, nor to an area beyond the sandbar. At normal or high tide, Petitioners are able to run their boat straight out into Perdido Bay from a distance of 60 feet from the shore due to their having a "short shank motor" on their boat. The existence of the pier across the sandbar will not significantly interfere with the Petitioners' access to their pier or their waterfront. The existence of the pier will not affect navigational patterns of other neighbors. Paddleboats use the waters in the vicinity of the project area. Paddleboats can navigate under the adjacent pier owned by the Petitioners. The adjacent pier is approximately 5 feet high as measured from the top of the pier to the sand bottom. The proposed pier will measure slightly less than 6 feet from the top to the sand bottom. The existence of the proposed pier extension was thus shown to not significantly disrupt recreational paddleboat navigation in the area.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the application for a dredge and fill permit by George M. Threadgill for the construction of an extension to his existing pier on Innerarity Point in Perdido Bay in Escambia County, Florida, be GRANTED and that the necessary permit be issued. DONE and ENTERED this 14th day of January, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1983. COPIES FURNISHED: William E. and Marie M. Jackson Route 1, Box 826 Pensacola, Florida 32507 Mr. George M. Threadgill 4626 LeHavre Way Pensacola, Florida 32505 E. Gary Early, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Ms. Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Collier Development Corporation, Naples, Florida, owns a triangular tract of land consisting of approximately 16 acres in Naples, Florida. In 1958, the Trustees of the Internal Improvement Fund conveyed by quitclaim deed to Collier Development Corporation all its interests in the property. A 1958 affidavit of Collier's surveyor who prepared the legal description of the land was filed in the Collier County public records and states that the land conveyed by the quitclaim deed was "high land" erroneously shown as bay bottom land according to the original government survey, and that the deed was executed in exchange for the conveyance of certain parcels of bay bottom land in Naples Bay to the Trustees. (Exhibits 1-2) In 1976, Petitioner executed an option agreement with Collier Development Corporation to purchase the land in question, contingent upon certain conditions including a requirement to obtain any required fill permits. On December 27, 1976, Petitioner assigned the option agreement to Michael S. Spiegel and himself as joint tenants. On March 14, 1977, a "short form" application was filed by Petitioner, as authorized by Collier Development Corporation, with Respondent to fill the land above the mean high water line to building grade for future residential, multi-family, or commercial uses. The application reflected that 400 cubic yards of rock riprap would be placed at least five feet upland of the designated mean high water line along the boundary of the property that faced the Gordon River and Rock Creek. The riprap revetment is designed to provide a method of containing upland fill material. The application contemplates that a fabric-like material "Mirafi" will be placed on the ground and wrapped over the riprap barrier. The application further provides that approximately 90,000 pounds of fill material will be trucked into the site and placed behind the riprap material to fill the land to a minimum elevation of four feet. It is also proposed to slope the fill material behind the riprap and plant grass seed thereon. In October, 1977, Petitioner filed a "long form" application which merely amplified the original application. The mean high water line was established by a survey performed under standard procedures and which utilized the existing bulkhead line as a point of reference. The survey was conducted in 1977 and 1978, and the procedures used were approved by and the survey filed in the Department of Natural Resources on June 26, 1978. (Testimony of Park, Lawson, Exhibits 4, 6, 8, 11) By letter dated January 26, 1978, Respondent provided notice of its intent to deny the permit application pursuant to Chapters 253 and 403, Florida Statutes, and Public Law 92-500. The reasons stated for the proposed denial generally were that filling the land would destroy mangrove vegetation which provides a major input of organic material to estuarine tropic webs, and filters and assimilates pollutants from upland runoff. It was stated that the proposed project would eliminate approximately 15 acres of submerged lands and transition zones, as defined in Chapter 17-4, Florida Administrative Code, which would reduce the quality and quantity of the state's marine resources adjacent to Class II waters and "tend to cause degradation of water quality conditions." Thereafter, on January 25, 1978, Petitioner submitted a petition for hearing wherein the jurisdiction of the Respondent in the matter and its grounds for the proposed denial were challenged. (Exhibit 5) The land in question is located south and adjacent to the confluence of the Gordon River and Rock Creek along the north side of U.S. Highway 41. The Gordon River and Rock Creek are tributaries of Naples Bay and all are Class II waters. The area is vegetated by red mangroves with a lesser number of white and black mangroves. A pond of about one-half acre surrounded by red mangroves is located in the southern section of the tract which occasionally overflows into a ditch running parallel to U.S. 41 located within the highway right-of- way. There is a berm alongside the ditch designed to prevent highway runoff from flowing onto Petitioner's land. During high tides, most of the land is inundated to varied depths ranging from two to eight inches. Certain marine vegetational species are present on portions of the land, such as sea grape, sea purslane, sea daisy, and button wood. Certain marine animal life is present in the mangrove area, including coffee bean snails, ribbed mussels, marsh clams, mangrove crabs, fiddler crabs, and mosquito fish. Other marine species, such as common oysters, scorched mussels, and barnacles inhabit the Rock Creek shore line. There is sparse bird population on Petitioner's land that may in part be due to the proximity of Naples Airport. (Testimony of Lawson, Park, Carroll, Fields, M. Spiegel, Exhibits 3, 7, 10) The quality of water in the Gordon River and Rock Creek is adversely effected to some degree by receipt of sewage plant effluent, discharge from nearby canals and runoff from residential and commercial areas. As a result of high bacterial count in these waters, shell fishing and swimming is not permitted. The mangrove forest on Petitioner's property is in a stressed condition as evidenced by the thinness of the canopy. It is probable that this condition was caused primarily by the introduction of fresh water from canals into the surrounding waters. (Testimony of Carroll, Fields, Erwin, Yokel) Mangrove wetlands are an important component of the estuarine ecosystem which provide nutrient stabilization and transformation in the supply of an organic base to the estuarine food chain, filtration of upland runoff, and storage of storm waters. They are a nursery for fish and invertebrate species, and a fish and wildlife habitat. The mangrove system on Petitioner's property is productive and contributing to the needs of marine life in the Naples Bay area. In this respect, most of the detritus produced by the mangrove system occurs below the mean high water line. However, the tidal flow during storm conditions at certain times of the year can release accumulated organic matter from the higher areas. This generally occurs in late summer and early fall when feeding demands of organisms are high. (Testimony of Erwin, Yokel) Although no system for containing surface water runoff was set forth in Petitioner's permit application, it is planned that such runoff will be retained on the site by a site drainage plan that would be accomplished by grading and the use of the existing pond or other means of retention, in addition to the natural percolation into the sandy fill material. (Testimony of Park) The application did not specify the precise distance from the mean high water line at which fill would be placed, but Petitioner clarified this point at the hearing. Fill material will not be placed closer than 100 feet upland of the mean high water line. The mangrove area left intact below that point will enable the ecological system to survive. However, due to the fact that the Naples Bay area does not produce sufficient organic matter to fully support animal life in the area, the loss of a substantial portion of mangroves will impact on the detrital food chain to some extent. (Testimony of Carroll, Yokel)
Recommendation That Respondent issue the requested permit to Petitioner, subject to the modification thereto made at the hearing with regard to the 100' setback as set forth in paragraph 8 of the foregoing Findings of Fact. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of February, 1979. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1979. COPIES FURNISHED: H. Ray Allen, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Howard Horowitz, Esquire 3550 Biscayne Boulevard Suite 402 Miami, Florida 33137 William Blackwell, Esquire 3003 North Miami Trail Naples, Florida
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner owns Lot 5 on Saddlebunch Key in Monroe County, Florida. The lot is approximately 24 acres in size. It is located in a pristine area devoid of any exotic species. From west to east, Petitioner's property consists of: an approximately one acre low hammock, uplands area inhabited by buttonwood trees; a transition area slightly lower in elevation than the uplands area; a salt marsh area with key grass; a narrow mangrove area with mangroves between four and six feet tall; and an open water area. The first two hundred feet or so of the open water area has small coral sponges, sea grasses and algae on the bottom. Further out, the bottom is sandy with a minimal amount of vegetation. Among the species of birds that inhabit Petitioner's property and the surrounding area are the Little Blue Heron, White Ibis and Reddish Egret. The area is also the home of two endangered species, the Silver Rice Rat (which requires large expanses of undisturbed habitat such as that presently found in Saddlebunch Key) and the Lower Key Marsh Rabbit (which inhabits areas such as the transitional and marsh areas found on Petitioner's property). 1/ On April 20, 1992, Petitioner submitted to the Department an application for a permit to build a 1200 feet long/12 feet wide dock (hereinafter referred to as the "Proposed Dock") extending east from the uplands area of his property on Saddlebunch Key out into the open waters where the water depth is approximately four feet. The Proposed Dock will enable Petitioner (and his family, as well as visitors, both invited and uninvited) to more easily access the uplands area of his property, on which he plans to build a vacation home for his and his family's use. 2/ As a result of the closure and barricading of Sugarloaf Boulevard, there is no longer a route over dry land that Petitioner can take to get to the uplands. To reach the uplands, he must either walk through wetlands or navigate a boat through the shallow waters adjoining the uplands. Regardless of which means of access he chooses, the bottom (the mud and muck in which he steps when he travels by foot and the coral sponges, sea grasses and algae against which his boat scrapes when he travels by boat) is disturbed. 3/ The Proposed Dock will be located in a Class III, Outstanding Florida Water. On May 6, 1992, the Department, by letter, advised Petitioner that it had received his application and determined that it was incomplete. The letter specified the additional information and materials Petitioner needed to supply to make his application complete. On July 8, 1992, Petitioner provided the Department with additional information and materials in response to the request made by the Department in its May 6, 1992, letter. By letters dated July 20 and 21, 1992, the Department advised Petitioner that it had received his July 8, 1992, submission, but that, notwithstanding this submission, his application remained incomplete. The letters specified the additional information and materials Petitioner still needed to supply to make his application complete. On August 10, 1992, Petitioner provided the Department with additional information and materials in response to the request made by the Department in its July 20 and 21, 1992, letters. By letter dated August 18, 1992, the Department advised Petitioner that it had received his August 10, 1992, submission, but that, notwithstanding this submission, his application remained incomplete. The letter specified the additional information and materials Petitioner still needed to supply to make his application complete. On September 9, 1992, Petitioner provided the Department with additional information and materials in response to the request made by the Department in its August 18, 1992, letter. In his letter Petitioner requested that the Department "process [his] application." Less than 90 days later, on December 7, 1992, the Department issued a Notice of Permit Denial. Petitioner has not provided reasonable assurance that the Proposed Dock will not degrade the quality of the water in and around the project site, nor has he provided reasonable assurance that the Proposed Dock is clearly in the public interest. Turbidity will occur during the construction of the Proposed Dock. When the holes into which the dock pilings will be placed are bored, the excavated material will become suspended and, if not contained, will flow with the current. The containment required will be substantial. The use of turbidity curtains is an accepted means of limiting turbidity. Although Petitioner has indicated that he will use turbidity curtains during the construction of the Proposed Dock, he has not indicated where they will be placed, how long they will remain in place and how they will be used. Turbidity has an adverse impact on the transparency of water (that is, the degree to which sunlight is able to penetrate the water). In and around the project site there is submerged vegetation that requires sunlight. If turbidity is not properly contained during construction, there will be a decrease in the transparency of the water in and around the project site and a resultant adverse impact on the biological function of the submerged vegetation in that area. Moreover, the Proposed Dock, when completed, will block sunlight and prevent this sunlight from reaching the submerged vegetation beneath the dock. Such shading will occur even though Petitioner has agreed to have one inch separations between the boards that will comprise the Proposed Dock's walkway. These separations will allow only a limited amount of sunlight to come through the dock. The amount of shading produced by the Proposed Dock will be substantial because the Proposed Dock will have an east/west alignment and therefore the sun will always be directly above it. 4/ Because the Proposed Dock will deprive the submerged vegetation beneath it of needed sunlight, the dock will have an adverse effect on such vegetation, as well as on the organisms that feed on such vegetation, and it will therefore reduce the diversity of life in the area. The reduction of the area's diversity of life will, in turn, adversely affect the biological integrity of the area. The activity associated with the construction and presence of the Proposed Dock and the vacation home that Petitioner will build if he is permitted to construct the Proposed Dock 5/ will flush birds that now inhabit Petitioner's property and the surrounding area, including the Little Blue Herons, White Ibises and Reddish Egrets, from their present habitat. This activity will also adversely affect other wildlife in the area, including, most significantly, the Silver Rice Rat and the Lower Key Marsh Rabbit, both of which are endangered species that will suffer from the invasion of the exotic species that will accompany the development of the area. In addition, the construction of the Proposed Dock will result in a loss of habitat for the Lower Key Marsh Rabbit. 6/ The Proposed Dock is intended to be a permanent structure and therefore its post-construction impacts will be of a long-lasting nature. It is reasonable to expect that other property owners in the vicinity of the Proposed Dock will seek a permit to construct a dock like Petitioner's if Petitioner is permitted to construct the Proposed Dock. These other projects, if they too are permitted, will have environmental consequences similar to those produced by the Proposed Dock. Although the Proposed Dock will enable Petitioner and his family to reach the uplands area of Petitioner's property without creating a disturbance on the bottom of the adjoining shallow waters, on balance, the Proposed Dock will have an adverse environmental impact on the uplands and surrounding area. The Proposed Dock's environmental disadvantages outweigh its environmental benefits. Petitioner has expressed a general willingness to make those modifications to his proposed project that will make the project permittable, but he has yet to make the modifications that will minimize the project's adverse environmental consequences. Mitigation of these consequences is a possibility. In the past, the Department has accepted both on-site and off-site mitigative measures. 7/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Environmental Protection enter a final order denying Petitioner's application for a dredge and fill permit to construct the Proposed Dock. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of December, 1995. STUART M. LERNER, 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 29th day of December, 1995.
Findings Of Fact Petitioner, Robert Brown, is the co-owner of Lot 13 and the northern half of Lot 14, Block 7, Lake Addition to Boynton in Boynton Beach, Palm Beach County, Florida. The property consists of a parcel approximately 150 by 150 feet and is located along the western edge of the Intra-coastal Waterway at N.E. 8th Ave. and N.E. 7th Street in Boynton Beach. At all times pertinent to the issues herein, Petitioner was the owner of this property which is vegetated along the Eastern half with mature mangrove trees which extend back from the water's edge approximately one half the depth of the lot. These mangroves include red, black, and white species and the larger are approximately between 18 and 22 years old. The majority of the trees, however, are younger than that. The Western half of the property is sparsely vegetated and in the heavily vegetated half, there is an open area approximately 30 by 30 feet which appears to have been cleared and on which there are no mature mangrove trees. On July 19, 1984, Petitioner filed an application for a permit to construct a 1625 square foot house on pilings together with a 164 by 4 foot boardwalk extending in a west to east direction from the westernmost edge of the mangrove community to the waterside of the proposed dwelling giving access thereto. The eastern half of the property in question appears to be lower in elevation than the western half and experiences some tidal inundation during periods of high tide. Though there is a riprap deposit along the eastern edge of the property and two berms extending along the landward side of the riprap, water from the Intra-coastal Waterway periodically flows through the riprap, over the berms, and onto Petitioner's property. This water is afforded access onto the property also, by a northwest running ditch located south of the southern boundary of the property which ditch is connected to the waterway. It intersects with another ditch which runs due north to an intersection with an east-west depression, also connected to the Waterway, running along the northern boundary of the property. Mangroves of some size are found in and on the edges of this ditch. Petitioner's construction proposal, involving the driving of supporting pilings for the dwelling, is a dredge and fill activity as defined by the Department of Environmental Regulation's (DER), experts and requires the issue of a dredge and fill permit. There is a conflict between the Petitioner's evidence regarding the physical location of his proposed dwelling and boardwalk and that of the agency personnel who, with benefit of a survey, determined that the larger clearing referenced by the Petitioner does not lie on his property and that the indicated cleared cut through the mangrove community to the waterway on Petitioner's property for the walkway does not lie on Petitioner's property but instead is approximately 30 feet south of the southern boundary. Having reviewed the application submitted by Petitioner, DER requested additional information regarding construction techniques and plans. These have not, to this date submitted in a tangible form the information requested. Petitioner's attorney provided some of the information requested orally to DER at some time in the past, giving some assurances that the disruption of water quality during construction would be kept at a minimum and would be only temporary. However, since DER did not have available to it the additional information it requested so as to appropriately evaluate the true proposal by Petitioner and the effect of any modifications, based on the failure of Petitioner to provide adequate assurances that water quality standards would not be violated and that the project was not contrary to public interest as is required of him by Section 403.918, Florida Statutes, on January 23, 1985, the Department issued an intent to deny the permit. As a part of this intent to deny, the agency suggested that the project be relocated to the upland one-half of the Petitioner's property. Construction there would not have involved any mangrove disturbance and would have been consistent with the agency's standards and policies. Historically the property owned by Mr. Brown did not border the open body of water which now constitutes Lake Worth or the Intra-coastal Waterway. As far back as 1872, the property was dry and supported no mangrove growth. Mangroves existing currently on the property have developed there since the construction of the Intra-coastal Waterway and its joinder with Lake Worth and the installation of the inlets which connect this water body with the Atlantic Ocean. On the property directly north of Petitioner's boundary sits a house built on fill approximately one and a half feet above the gradient of Mr. Brown's lot. Immediately south of his property is a condominium building also located on fill bordering the Intra-coastal Waterway. Evaluation of photographs of the area reveals that both pieces appear to have been identical in make-up to that owned by Petitioner in both topography and vegetation prior to being filled for construction. In fact, this parcel lies in a rapidly developing commercial and residential area. Petitioner also presented the testimony of two long time residents of the area who indicate that prior to the widening of the Intra-coastal Waterway, Petitioner's property did not border the open water of Lake Worth or the waterway. Back in the 1940's and before, the property was not covered with mangrove trees and was, in fact, used as farmland by Mr. Pinder, one of these two witnesses, who grew bell peppers and squash there. Mr. Pinder was hired by Palm Beach County during the 1940's and 1950's to dig mosquito control ditches on the property and Petitioner contends that it was these ditches which developed the connection with the Intra-coastal Waterway and thereby created a jurisdictional wetland. The weight of the evidence, however, indicates that though ditches were dug for mosquito control as described by Mr. Pinder and even before, it was not these ditches which changed the character of the property to jurisdictional wetland. Review of the maps submitted by Mr. Brown shows to a very limited degree some reference to ditches on or near the property in question but neither this evidence nor the testimony of both long-time residents is sufficiently clear and convincing to establish to the satisfaction of the Hearing Officer that the character of Mr. Brown's property was so radically changed by the digging of these ditches as to become jurisdictional because of them. Turning to the question of the impact of the proposed construction on the mangrove system, the evidence presented by the agency and to a lesser degree by Petitioner himself shows that there would be some adverse impact on the mangrove system through the direct destruction of some existing trees and saplings, the trimming of some of the overhanging mangrove canopy, and the subsequent shading of immature mangroves by the construction of the dwelling and the boardwalk. The evidence available indicates that the construction of the dwelling itself cannot be contained within the existing clearing and for the construction of the boardwalk, an additional cut and shading will be required. Mangroves play an important part in the water quality and biological considerations of Section 403.918 Florida Statutes. The deterioration of fallen mangrove vegetation constitutes an important part in the food chain of fish and small invertebrates. Existing trees and roots provide habitat for various birds, invertebrates, mammals, and reptiles and the water quality considerations relating to the filtering of run-off water from uplands and the assimilation of pollutants in the passing water is significant. DER was and is concerned that the proposed project does not provide reasonable or adequate assurances that water quality standards will not be violated. Turbidity, transparency, and dissolved oxygen standards may well be violated during the construction phase and the agency's concerns have not been addressed or lessened by Petitioner's unformed proposals for modification. The fourth standard, that involving biological integrity, will be a continuing and ongoing consideration due to the fact that the shading created by the house and boardwalk will be constant. After full consideration of the application and those limited matters submitted in response to the agency's expression of concern, the agency has concluded that the project will adversely impact the conservation of fish and wildlife and their habitats in the area; will adversely affect fishing and recreational values and marine productivity; will adversely effect current and relative values of functions performed in the area; and will be of a permanent nature. The agency has not, however, quantified these negative effects or demonstrated that they will be of any significant magnitude. It is difficult to conceive that in an area already violated by the encroachment of civilization as demonstrated by the unrestrained fill both to the north and to the south of Petitioner's property, that the preservation of a relatively miniscule enclave, on highly valuable waterfront property, will have any substantial beneficial effect on the overall biological, ecological, or water quality considerations of the Intra-coastal Waterway, Lake Worth, or the Atlantic Ocean. The construction disruption will be minimal and for a limited period of time. The effects of shading will be of a longer duration but would appear to be miniscule in comparison to the surrounding area. DER and its subordinate associate, the Palm Beach County Health Department, both recommend that the application be denied because of Petitioner's failure to provide reasonable assurances that the project will not violate water quality standards and will not be contrary to the public interest. The cumulative impact concerns of both DER and the Health Department are valid in theory but inappropriate here. Evidence that the recent mangrove destruction in this area has been been extensive cannot be debated. No doubt it has been. The fact remains, however, that this property is in a highly desirable location. The area has not been preserved by the State in its program for the accumulation and preservation of wetlands under a state umbrella and is of such a small size that the cumulative impact to be felt from the limited destruction of mangroves here would be minimal. There is some evidence to indicate that a permit was issued to a previous owner of this property allowing the destruction of mangrove seedlings in the western section of the community and this action has not been undertaken. This permit has not expired and is transferable to Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Department of Environmental Regulation issue permit number 5008992206 to the Petitioner, Robert 8rown for the construction of the house and walkway as proposed, under the provision of adequate and firm reasonable safeguards to minimize water quality disruption during construction by Petitioner. RECOMMENDED this 11th day of February, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 llth day of February, 1987. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Terrell K. Arline, Esquire 325-C Clematis Street West Palm Beach, FL 33401 Karen A. Brodeen, Esquire Douglas MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. By the Petitioner 1 Incorporated in Finding of Fact 1. 2. Incorporated in Findings of Fact 2 & 3. 3 & 4. Incorporated in Finding of Fact 4. Incorporated in Finding of Fact 4. Incorporated in Finding of Fact 10. 7 & 8. Incorporated in Findings of Fact 9 & 11 Incorporated in Finding of Fact 11. Incorporated in Findings of Fact 3 6 13. Accepted and incorporated in Findings of Fact 7 & 8. Accepted and incorporated in Findings of Fact 7 & 8. Not a Finding of Fact but a comment on the evidence. By the Respondent Incorporated in Finding of Fact 1. Incorporated in Finding of Fact 3. 3 & 4. Incorporated in Findings of Fact 2 & 4. 5. Incorporated in Finding of Fact 5. 6. Incorporated in Findings of Fact 3 & 6. 7. Incorporated in Finding of Fact 6. 8. Incorporated in Finding of Fact 7. 9 & 10. Incorporated in Finding of Fact 8. 11 Incorporated in Finding of Fact 13. 12. Incorporated in Finding of Fact 14. 13. Incorporated in Finding of Fact 15. 14-16. Incorporated in Finding of Fact 16. 17. Incorporated in Finding of Fact 15. 18. Incorporated in Finding of Fact 17. 19 & 20. Incorporated in Finding of Fact 11. 21-24 Incorporated in Findings of Fact 11 & 12. 25. Incorporated in Findings of Fact 17 & 18. ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION ROBERT BROWN, Petitioner, DOAH CASE NO. 85-0517 OGC FILE NO. 85-0122 vs. STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION Respondent. /
Findings Of Fact On March 30, 1981, the State of Florida, Department of Environmental Regulation, received a request from William H. Griffith to allow him to place "rip-rap" adjacent to a retaining wall which fronts Griffith's property. Griffith is a resident at 259 Sabine Drive, Pensacola Beach, Florida. This residence address is in Escambia County, Florida. The details of the application for permit are as set forth in Respondent Griffith's Exhibit 3, admitted into evidence, which is a copy of the application. The application as originally constituted requested that Griffith be allowed to place "rip-rap" material along the front of his property adjacent to the retaining wall which wall was approximately 140 feet in length. The depth of the "rip-rap" material was to be 30 feet with an approximate height of the material being 3 feet. The "rip-rap" material was to be constituted of concrete test block cylinders which are 6 to 8 inches in diameter by 12 to 14 inches in length, together with other aggregate material constituted of irregularly shaped chunks of concrete. Those materials are depicted in the Petitioner's Exhibit 1A through H which are photographs taken at the site of the proposed project. Subsequent to the submission of the application for permit, a modification was made which reduced the depth of the "rip-rap" material from 39 feet to 10 feet 6 inches. This modification occurred sometime in May, 1981, and is depicted in the Respondent Griffith's Exhibit 3. The proposed project, in its modified form, would involve navigable waters of the State. Specifically, it would involve Class II waters, namely the intercoastal waterway which is fronted by the Respondent Griffith's property. A sketch of this location in Escambia County is depicted in the item entitled "vicinity map" which is part of Respondent Griffith's Exhibit 3. The purpose of the "rip-rap" as it is presently contemplated through the project would be to prohibit tidal erosion of the Respondent Griffith's property, in the area of his beach front, particularly as it is exacerbated by seasonal winds. A permit application appraisal was made by the Department and was concluded on July 27, 1981. A copy of that appraisal may be found as the Respondent Department's Exhibit 1, admitted into evidence. Through the process of the permit review and appraisal, the Department requested that the applicant remove four "rip-rap" groins running perpendicular to the retaining wall, which were 20 to 30 feet long. Those groins were not acceptable to the Department as devices to prohibit erosion. Respondent Griffith has removed the majority of the fill material and the present design contemplates the total removal of those groins. At the time of the permit review and at present the existing retaining wall is located 8 to 10 feet landward of the approximate mean high water shoreline. If constructed the 10 foot 6 inch depth "rip-rap" fill structure would extend approximately 2 feet waterward of the approximate mean high water shoreline. A description of the flora and fauna located at the project site, together with general description of the soil types may be found in Respondent Department's Exhibit 1. The impact of the project as described in the permit application appraisal, Respondent Department's Exhibit 1, indicates that the placement of "rip-rap" would stabilize the eroding shoreline adjacent to the applicant's property; provide moderate amounts of substrate to act as a habitat and shelter for intertidal organisms; would act as a limited inhibitor to littoral sand transport, particularly as related to Petitioner Gibson's property, in that there will be some deprivation of sand transport onto the Gibson property until the "rip-rap" stabilizes; however, this deprivation of sand transport of the Gibson property is not substantial. The impact on the Gibson property is further described in the appraisal statement as being insignificant. (It is also suggested that Gibson utilize "rip-rap" as opposed to the vertical timber retaining wall which is in place at his property and is subject to being undermined by tidal pressures.) These perceptions as set forth in the Department's permit application appraisal are factually correct. Having conducted the permit review and being of the opinion that the permit should be issued, the Department sent a letter of intent to issue the permit on July 29, 1981, and served Petitioner Gibson with a copy. The permit document was also forwarded to the applicant. The letter of intent and permit document may be found in Respondent Griffith's Exhibit 5, which was admitted into evidence. This exhibit is a copy of the aforementioned items. Subsequent to the notification of the intent to grant, Petitioner Gibson requested a Subsection 120.57(1), Florida Statutes, hearing, which Petition, in its final form, may be found as Respondent Griffith's Exhibit 2, admitted into evidence, which is a copy of the verified Petition of the Petitioner. The hearing was then noticed and conducted on November 10, 1981, pursuant to the hearing notice, a copy of which may be found as Respondent Griffith's Exhibit 1, admitted into evidence. The project as contemplated will not have a significant negative impact on the flora and fauna. To the extent that there is some destruction by the placement of the "rip-rap" material, this destruction is more than offset by the provision of habitat and shelter for intertidal organisms. The placement of the "rip-rap" will not have a negative impact on water quality in the waters of the State which are adjacent to the Respondent Griffith's property and in which the "rip-rap" will be implaced to the extent of approximately 2 feet waterward of the approximate mean high water shoreline. Should the "rip-rap" material not be placed, shoreline erosion will continue in the area of the applicant's property and that of the Petitioner. The placement of the "rip-rap" is not a hazard to navigation nor in conflict with the public interest. The applicant has received necessary approval from the Army Corps of Engineers for the installation of the "rip-rap" material as may be seen by the grant of a permit from the Corps, a copy of which is found as Respondent Griffith's Exhibit 4, admitted into evidence.
