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 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 The County applied on August 24, 1979, for a permit to construct a swimming beach on the southwest shore of Sylvan Lake in the northwest part of Seminole County, Florida. On December 4, 1979, the Department gave notice of its intent to grant the permit. As proposed, the beach would be 150 feet in length along the shoreline and be approximately 65 feet deep, 40 feet on the land side of the waterline and 25 feet on the lake side of the shore waterline. Three dock structures are also proposed. The first is a boat dock to be 6 feet wide, which will extend into the lake for 25 feet with a 15 foot "L" at its end. In addition, a 6 foot wide, 20 foot long fishing pier is proposed with a 6 by 20 foot "T" on its end. Finally, the County proposes constructing a 6 foot wide 15 foot long aquatic study platform that would terminate in a 6 by 30 foot "T". The County plans to remove vegetation from an area of 150 feet long by 25 feet. As agreed at the hearing, this removal would be by hand only.. No machinery would be used. The site of the project is owned by the County. As part of its application, the County agrees to leave undisturbed 2,630 feet of the remaining shoreline it owns. At the present time approximately 20 percent of the lake's total shoreline is occupied by developed residential property. Many of the homeowners have removed the vegetation from their shorelines. The County's agreement not to alter 90 percent of its shoreline would therefore be beneficial to preserving the natural state of the lake. Sylvan Lake is an oligotropic spring-fed lake of 160 acres. Its well vegetated shoreline alternates between large grassy marshes and well-defined uplands. The lake bottom in the project site is firm sand with little potential for causing a turbidity problem. The lake has excellent water quality. It is a valuable habitat for fish and aquatic dependent birds and mammals. The vegetation along the shoreline of the project site consist of sawgrass, pickerelweed, and some arrowhead on the land side with spatterdock and mats of floating maidencane on the water side. In a freshwater closed system such as this lake the rooted emergent plants are vital to maintaining the quality of the water. The plants stabilize nutrients, expert oxygen and keep the water cool. The removal of this vegetation from a 150 foot strip will have an adverse but insignificant impact on the biological resources and the water quality of the lake. The construction of the fishing pier, boat dock, and observation platform will have no lasting environmental impact and the limited turbidity which may be generated during their construction can be well contained by the use of turbidity curtains. The swimming beach is a part of the County's plan for a diverse recreational park to provide the public with facilities for nature trails, baseball, picnicking, etc. The water classification of Sylvan Lake is Class III. CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.57(1), Florida Statutes (1979). In this proceeding the Respondent, County, has the burden of proving that it has given reasonable assurances that the short term and long term effects of the proposed project will not result in violations of the water quality standards of Chapter 17-3, Florida Administrative Code. Section 17- 4.28(3), Florida Administrative Code; Dowdy v. Department of Environmental Regulation, Case No. 79-219, Recommended Order (DOAH July 19, 1979). That burden has been carried. The water quality standards of a Class III body such as Sylvan Lake are set out in Section 17-3.09, Florida Administrative Code. There is a preponderance of competent and substantial evidence that those standards in either the long term or in the short term will not be violated by the proposed project. The requisite reasonable assurances have therefore been given by the applicant. Hand removal of aquatic vegetation from a 150 foot strip of shoreline on a 186 acre lake, will have at most, a de minimus impact on the marine life, water quality or neighboring biota of Sylvan Lake. The applicant has met the criteria for the issuance of a permit, pursuant to Section 17-4.07, Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the State of Florida, Department of Environmental Regulation determining that the requested dredge and fill permit be issued subject to the usual conditions and subject to the applicant's stipulation that any vegetation removal will be performed by hand and subject to any conditions contained in the Notice of Intent To Issue Permit. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th day of April, 1980. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Mr. & Mrs. Gilbert Lee Swartz Route 1, Box 228 DD South Sylvan Lake Drive Sanford, FL 32771 Nikki Clayton Seminole County Courthouse Room 302, 301 N. Park Avenue Sanford, FL 32771 Segundo J. Fernandez, Esq. and Stanley J. Niego, Esq. Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32301 Mr. Raymond Lipton Route 1, Box 60-A Longwood, FL 32750
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 Petitioner owns approximately five and three quarters acres of land adjacent to the St. Johns River in Putnam County, Georgetown, Florida. He has 198 ft. frontage on the river. He purchased the land in 1973 and since that time, periodic storms have caused his shoreline to erode in a half-circle configuration for a distance of about 15 to 20 feet landward to a depth of about 2 feet. To the south of his property is a boat marina. Boats utilizing that facility created debris which washed upon his land creating an unsightly condition. Additionally, wave action from the presence of numerous small craft contributed somewhat to the erosion problem. (Testimony of Petitioner, Petitioner's Exhibit 1) Noting that both landowners to the north and south of his property had in existence previously-constructed bulkheads, petitioner determined that he would construct a similar bulkhead or seawall along his former shoreline and then reclaim the land that had been eroded by sand fill. He therefore contacted a contractor to obtain an estimate of the cost of construction. Petitioner denies requesting a pre-inspection of the proposed work by the Army Corp of Engineers and respondent, but the latter's records reveal that such an inspection was made late in 1974. At that time, Petitioner was informed that a permit would be needed to construct the bulkhead, but that his proposed position for it was excessively far waterward of the mean high water line and therefore would be objectionable. Although petitioner specifically denies ever having been told that he needed a permit, it is found that he was so informed by respondent's representative, (Testimony of Petitioner, Scott, Respondent's Exhibit 3) Petitioner proceeded to construct a wooden bulkhead approximately 180 feet long and extending approximately 15 feet waterward of the mean high water line. The fact of construction was noted by respondent's inspector on April 24, 1975, and thereafter on May 12, respondent informed petitioner that he should either apply for a permit or remove all portions of the bulkhead from below the high water line. On November 25,1975, petitioner obtained the conditional approval of the Board of County Commissioners, Putnam County, Florida, for a fill and bulkhead permit, subject to approval of an issuance of permits by the Army Corp of Engineers and the Board of Trustees, Internal Improvement Trust Fund. He thereafter on March 29, 1976, filed his application with respondent for a permit to construct a seawall and fill below the mean high water line with approximately 550 cubic yards of material. (Testimony of Scott, Petitioner's Exhibit 1, Respondent's Exhibit 2,3) Respondent's inspector evaluated the application and submitted his report on March 31, 1976, recommending denial on the basis of significant adverse impacts associated with the project. However, the report stated that the construction of a rip-rap wall conforming to contour of the mean high water line would stabilize the water line and eliminate objections to the project. Specifically, the adverse impacts mentioned in the report were that backfill of the submerged area landward of the existing bulkhead would eliminate a portion of the littoral zone which is a site for nutrient transformation and stabilization. The elimination of the natural shore zone accelerates entrophication rates in the water body and resulting degradation of fish and wildlife resources. (Respondent's Exhibit 1) Respondent's field inspector supervisor informed petitioner of the adverse report and suggested that the bulkhead be removed and rebuilt following the suggestion in the inspector's report. Petitioner did not agree to this proposition and therefore, on October 27, 1976, he was advised of respondent's intent to deny his application. The grounds for denial were that the seawall and proposed backfill would eliminate a tract of submerged land that stabilized sediments, functions in nutrient cycles and helps maintain water quality. Further, it was stated that destruction of this community would impair the ability of the affected submerged habitat to support fish and wildlife. It was further noted that the seawall would create an abrupt discontinuity in the existing shoreline and cause scouring of the littoral community. (Testimony of Scott, Petitioner's Exhibit 3)
Recommendation That the application of petitioner Joseph J. DeMuch be denied. DONE and ENTERED this 2nd day of June, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM 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 2nd day of June, 1977. COPIES FURNISHED: Vance W. Kidder, Esquire Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building Tallahassee, Florida 32301 Joseph J. DeMuch Post Office Box 447 Georgetown, Florida 32039
Findings Of Fact On November 1, 1982, Respondent Janson filed a Joint Application for a dredge and fill permit from Respondent, Department of Environmental Regulation, and from the Department of the Army Corps of Engineers. The project described in that application involved the construction of an approximately 1,000-square- foot, pile-supported residence, landward of the mean high water line but within the landward extent of Robinson Creek in St. Johns County, Florida. The proposed project also involved the placement of approximately 35 cubic yards of fill and a 30-foot culvert within a small (approximately 4-foot), tidally- influenced roadside ditch for driveway access and parking. The original application sought permission to place part of a concrete driveway and tool shed within the landward extent of Robinson Creek. The project is to be constructed on Lot 47, J.A. Lew Subdivision. Respondent Janson owns Lot 47, as well as Lots 45 and 46, which lots are north of and adjoining Lot 47 and also adjoining Robinson Creek. The next adjoining property owner to the north is the City of St. Augustine, Florida, which presumably owns the street. The adjoining property owner to the south of Lot 47 is Virginia P. Melichar. Neither Melichar nor the City objected to the Department's approval of the dredge and fill permit application. In support of his application, Janson retained the services of a registered surveyor and civil engineer, who performed a survey on Lot 47 to determine the location of the mean high water line with reference to the proposed project. That expert determined the location of the mean high water line to be at elevation 2.4 feet. Accordingly, all work contemplated by the dredge and fill permit is upland from the mean high water line. T.J. Deuerling, an environmental specialist for Respondent, Department of Environmental Regulation, visited the project site on December 13, 1982 and on December 30, 1982 in order to prepare the Department's Biological and Water Quality Assessment. As a result of those site visits, Deuerling recommended to Respondent Janson that he modify his permit application by moving the concrete slab and tool shed from the marsh area onto the uplands. Janson did so revise his application. In spite of the name of the permit being sought by Respondent Janson, the project involves no dredging. However, the culvert and its attendant fill would be placed in the man-made roadside ditch. That ditch constitutes a very weak transitional marsh. Although the culvert will eliminate some vegetation within that ditch, the effect of the elimination will be insignificant on water quality. The pilings for the pile-supported residence will also eliminate a small area of marsh. The anticipated shading caused by the pile-supported residence may impact somewhat on the vegetation in a small area below the residence; however, due to the fact that the floor of the house will be eight feet above the ground, light will still be able to penetrate. Therefore, the vegetation below the pile-supported residence will continue to act as a filter for pollutants. Janson has mitigated the small loss in wetlands by modifying his project so as to remove the concrete slab and tool shed from the marsh area to the uplands. Due to the project's small size, no storm water impact can be expected. Additionally, no evidence was introduced to show a violation of any water quality standard as a result of the proposed project. On March 16, 1983, Respondent, Department of Environmental Regulation, executed its Intent to Issue the dredge and fill permit in accordance with the revised application and subject to the conditions that: (1) turbidity curtains be employed in the ditch during the placement of fill over the culvert to contain any turbidity generated, and (2) construction on the uplands be confined to periods of normal water level conditions. On July 5, 1983, the Department of the Army Corps of Engineers issued its Permit and Notice of Authorization. The essence of the testimony presented by the Petitioners, including that of the employees of the St. Johns River Water Management District, who testified in opposition to the proposed project, is that even though Janson's proposed project would not impact water quality in a way that was either significant or measurable (although no one even suggested any specific water quality standard that might be violated), approval of Janson's permit might set a precedent for other projects which might then have a cumulative impact in some unspecified way at some unspecified location. No evidence was offered to show that Respondent, Department of Environmental Regulation's review of permit applications is other than site specific. Further, no evidence was introduced to show any proposed project anywhere having any impact with which Janson's project could be cumulative. Petitioners Sandquist and Shuler live in the neighborhood of the proposed project, perhaps as close as two blocks away.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing with prejudice the petition filed herein as to each individual Petitioner and issuing a dredge and fill permit to Respondent Janson in accordance with his revised application. DONE and RECOMMENDED this 13th day of January, 1984, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1984. COPIES FURNISHED: Stormy Sandquist 3 Aviles Street St. Augustine, FL 32084 Marion C. Snider Volla F. Snider 79 Fullerwood Drive St. Augustine, FL 32084 Carmen Ashton 51 East Park Avenue St. Augustine, FL 32084 Reuben D. Sitton Gail P.Sitton 35 Seminole Drive St. Augustine, FL 32084 Sandra N. Shuler 22 East Park Avenue St. Augustine, FL 32084 Patty Severt Greg Severt 1 Fern Street St. Augustine, FL 32084 Nancy Moore Paul Moore, Jr. 6 Fern Street St. Augustine, FL 32084 John D. Bailey, Jr., Esq. P.O. Box 170 St. Augustine, FL 32085-0170 Charles G. Stephens, Esq. Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301
Findings Of Fact The Petitioner, Millender and Son Fish Company is a wholesale seafood business, with its principle place of business located on the banks of the Carrabelle River in Carrabelle, Franklin County, Florida. The business is owned and operated by Farris G. Millender. Mr. Millender owns the real property on which the business is located and that property is bordered on the north by Avenue "A", also known as State Road 10 which is the main street of the City of Carrabelle. The property is bordered on the southerly margin by the mean high water line of the Carrabelle River. Prior to September 2, 1985, there existed several wooden docks which ran lengthwise along the margin of the Carrabelle River on the waterward boundaries of the Petitioner's property. In the fall of 1985, the Carrabelle area was struck by two hurricanes: the first occurred on September 2, 1985, and the second in November, 1985. These two hurricanes together severely damaged the wooden docks, as well as Petitioner's buildings. In March, 1985, the Petitioner had hired Edwin G. Brown, a registered surveyor, to survey his property. The survey was completed on March 18, 1985, and showed a line along the Carrabelle River identified as "approximate MHW line" (mean high water). The surveyor stated that this line represented the shoreline of Petitioner's property at the time the survey was done. Employees of the Department of Natural Resources verified each end of the Brown survey as being an accurate location of the line of mean high water. That survey also depicted the location of the Petitioner's docks and pilings which were later damaged by the storms. The approximate mean high water line lay landward of the location of Petitioner's existing docks and pilings. The survey also depicted a small concrete bulkhead along part of the boundary line designated as "approximate MHW line" on that survey. On September 10, 1985, after the first of the two hurricanes struck, the Petitioner applied for a city building permit from the City of Carrabelle seeking to construct a seawall at the line of mean high water along that part of his property fronting the Carrabelle River. That permit was granted on September 17, 1985. On September 25, 1985, after Hurricane Elena struck, an emergency permitting team comprised of representatives of the U.S. Army Corps of Engineers, the Florida Department of Environmental Regulation, and the Department of Natural Resources met with Farris G. Millender at his place of business and inspected the hurricane damage. Following that inspection, an emergency authorization permit (APL0029) was issued. That permit described the pre-existing condition of the property as a "functional off-loading seafood dock" and it authorized the Petitioner to rebuild the docks and piers to existing pre- disaster condition. That is, he was authorized to build the docks and piers to the same dimensions, consisting of a "6' x 300' pier, 20' x 45' pier, and 6'-10' x 800' pier and docks behind building." The members of the inspection team saw no evidence of any concrete bulkhead or seawall existing at or near the site of the Petitioner's damaged wooden docks. The Petitioner asked the team members if the permit authorization would allow the construction of a concrete seawall. He was told that the emergency authorization only permitted the building of wooden docks and structures as they had existed previously. He was told that the construction of a concrete seawall would have to be permitted through normal permit application procedures. The emergency permitting process was designed to allow property owners to rebuild structures damaged by the hurricane in the same configuration, as to size, type of material and intended purpose, as those structures which existed prior to the emergency situation caused by the hurricane. On October 11, 1985, Mr. Powell Rivers called Mr. Larry Taylor of the Department of Environmental Regulation and inquired, on Petitioner's behalf, concerning whether bulkheading and backfilling was authorized under the emergency permit. Mr. Taylor informed Mr. Rivers that the emergency permit only authorized repair of the structures as they existed prior to the storm disaster. Mr. Taylor informed him that any additional work or change in the pre-existing installations, such as bulkheading and backfilling, would require a permit which must be obtained through normal permit application procedures. The Petitioner, however, proceeded to construct a concrete bulkhead along the Carrabelle River adjacent to his property and backfilled dirt or soil behind the bulkhead for its entire length. The bulkhead was constructed between September, 1985 and February, 1986. It is approximately 505 feet long and lies 20 to 55 feet waterward of the March 18, 1985, "approximate MHW line" surveyed by Edwin Brown. The area below the mean high water line encompassed by the seawall or bulkhead and attendant fill material is 0.446 acres. In response to a report by the Florida Marine Patrol, representatives of the U.S. Army Corps of Engineers, the Department of environmental Regulation (DER) and the Respondent inspected Petitioner's property on January 24, 1986. The concrete seawall itself was then nearly complete, but the backfilling had not yet been done. The Petitioner was informed at this time that the structure was not authorized under the above-mentioned emergency permit and that state and federal formal permitting was necessary. The Respondent formally notified the Petitioner of the encroachment of the construction in question on state-owned lands, without consent, by letter dated January 28, 1986. The Respondent requested the Petitioner to take immediate action to comply with the Respondent's rules and applicable state law. The Petitioner responded to this notice by stating that his position was that the work was authorized by the emergency authorization issued on September 25, 1985. In this connection, the Petitioner originally testified that Susan Radford, an employee of the Respondent, signed a handwritten note on November 21, 1985, giving Petitioner permission to construct the concrete seawall and related backfilling, below mean high water. The Petitioner recanted that testimony, however, following testimony of Susan Radford, on rebuttal, to the effect that she had not met the Petitioner, had never visited the site and had never signed any form of consent for Petitioner to perform the work in question under the aegis of the emergency permit. Based upon the Petitioner's response to the notice of January 28, 1986, the Respondent conducted an investigation and confirmed that indeed, in its view, the construction was located on-state-owned lands and was not authorized by the emergency permit issued on September 25, 1985. Accordingly, on April 1, 1986, the Respondent notified the Petitioner, with a formal Notice of Violation, that his construction was in violation of Chapter 253 and Rule 16Q- 14.03(1) and (4), Florida Administrative Code. He was ordered to cease and desist any further construction and given 20 days to apply for an "after-the-fact lease" or else to remove all unauthorized materials placed waterward of the referenced mean high water line. The Petitioner thereafter filed a petition for administrative hearing. The materials Petitioner placed waterward of mean high water have not as yet been removed. The Petitioner at a later time, however, applied for an "after-the- fact lease." The Carrabelle River is formed by the confluence of the New River and the Crooked River in Franklin County, Florida. It flows south into St. George Island Sound on the Gulf of Mexico. The river has been variously referred to in times past as the Crooked River, the New River and the Carrabelle River. It is a tidally-influenced water body at the point in question. Its shoreline boundaries are determined at the elevation of mean high water. Historically, Carrabelle and the surrounding environs, including the Carrabelle River area, has been the site of Indian villages, timber harvesting operations and seafood harvesting and processing industries. The river was traveled by boat by a surveyor as early as the year 1806, as far as the source of the New River and Crooked River. In 1840, the river was used as the means of transport for a military expedition. In 1882, the settlement of Rio Carrabelle, now called Carrabelle, had been established and timber was being transported on the river by logbooms or rafts moved by steamboats. Although the mouth of the river was partially obstructed by an oyster bar and sand, the channel contained approximately 4 1/2 feet of water at low tide in 1827 and by 1895 was being travelled by lighters, mail packets, tugs, and other vessels drawing 3' to 5' of water, plying between Carrabelle and Dog Island Harbor. (See Respondent's Exhibits 1, 2 and 3 in evidence.) The existence, location and general size of the New River and Crooked River, and their connection with St. George Sound via the Carrabelle River, has been shown on an 1846 topographic map of the state, as well as on an 1855 survey for the Apalachicola Land Company. The Crooked River was declared navigable by the Florida legislature in 1852, and in 1889, in a Memorial to Congress, the legislature described the importance of the river and the commerce then being shipped from Carrabelle via the river and its mouth. The water immediately adjacent to the Petitioner's property was part of a tidal slough or lagoon running parallel to and slightly north of the main channel of the Carrabelle River, at least as early as 1913. The lagoon was closed from the river on the west end by an intervening strip of land, but opened on its east end into the main channel of the river near Petitioner's property. On the south side of the lagoon there existed a series of marshy islands which were inundated at high tide. The water depth in the slough ebbed and flowed with the tide, but the connection between the east end of the slough and the main river channel near Petitioner's property was always inundated, even at low tide. Since the early part of this century, through 1965, the slough was capable of floating logs and small boats, typically oyster and mullet skiffs, even at low tide. In 1943, when the Petitioner's father purchased the property in question, which the Petitioner now owns, a fish processing house and dock existed along the shore of the property. The Petitioner's father purchased the property for the purpose of operating a wholesale fish business and the Petitioner was able to transport mullet to and from the main channel of the river to the docks along the front of his property in a "mullet skiff," which is a small boat of shallow draft typically used by commercial fishermen in the area. By 1954, the width of the slough along the Petitioner's property had increased and the marsh islands separating it from the main body of Carrabelle River had become smaller. More docks had been constructed along the Petitioner's shoreline and the adjacent property farther up the slough. Boats were able to navigate and moor to these docks. Additionally, since at least as early as 1913 through the present time, the shoreline along the Petitioner's property has been covered and uncovered by the daily ebb and flow of the tides in the Carrabelle River and in the slough. Thus, from the early part of this century to the present time, the waters adjacent to the Petitioner's property have been susceptible to navigation by small boats and skiffs used commercially by oyster and mullet fishermen. In 1965, the U.S. Army Corps of Engineers deepened the main channel of the river and the waters near the Petitioner's property, enabling larger vessels to dock alongside Petitioner's property. The Petitioner and his witnesses testified to substantial erosion which has occurred along Petitioner's shoreline over the years, allegedly as a result of dredging activities of the Corps of Engineers. However, aerial photographs taken by the Department of Transportation in 1953, 1965 and 1977, during periods at or near mean high tide, show a shoreline location and configuration essentially the same as that existing when it was surveyed by Edwin Brown in March of 1985. The Petitioner's wooden pilings, which now form the waterward boundary of the new seawall, were part of a wooden dock which was located at the same place prior to the 1965 dredging activities by the Corps. It was used to dock and unload fishing boats prior to 1965.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED that a final order be entered by the Respondent, Department of Natural Resources, finding the Petitioner in violation of the authority cited next above and ordering such corrective action as is authorized by Chapter 253, Florida Statutes, and Chapter 18-14, Florida Administrative Code. DONE and ORDERED this 7th day of January, 1988, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1498 Petitioner's Proposed Findings of Fact: 1-7. Accepted. 8-9. Rejected as contrary to the preponderant weight of evidence and subordinate to the Hearing Officer's findings of fact on this subject matter. Petitioner's Proposed Findings of Fact on Historical Mean High Water: 1-3. Accepted. Accepted generally but subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as constituting a recitation of testimony, contrary to the preponderant weight of evidence and subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as constituting a recitation and dis- cussion of testimony. Rejected as constituting a discussion or recitation of testimony and not a finding of fact and is contrary to the Hearing Officer's findings on this subject matter and subordinate thereto. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as contrary to the Hearing Officer's findings of fact on this subject matter. Accepted. Accepted, but not dispositive of any material issue presented and subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Rejected as contrary to the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter. Petitioner's Proposed Findings of Fact on the Issue of Estoppel: Accepted, but not dispositive of any material issue presented in itself. Accepted, but not dispositive in itself of any material issue presented. Accepted, but not dispositive of any material issue presented in itself. Respondent's Proposed Findings of Fact: 1-8. Accepted. 9. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. 10-14. Accepted. 15. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. 16-27. Accepted. COPIES FURNISHED: Eugene E. McClellan, Jr, Esquire Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399 J. Ben Watkins, Esquire WATKINS & RUSSELL 41 Commerce Street Apalachicola, Florida 32320 Tom Gardner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Thomas G. Tomasello General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact The Petitioners and an adjoining land owner have been involved in a dispute respecting the boundary between their property. The adjoining land owner developed a residential community known as the Bayside Estates subdivision. A canal system was dredged creating waterfront lots in the subdivision, and the canal system was connected to a waterway which flows to the Gulf of Mexico. The portion of the canal system which connects it to the waterway leading to the Gulf of Mexico was constructed on property owned by the Petitioners. Litigation respecting the rights of the Petitioners and adjoining land owners has been conducted in the Circuit Court of the 20th Judicial Circuit, Lee County, Florida, and in the Florida Second District Court of Appeal. Petitioners are seeking to construct a cable across the joining portion of the canal system, which they contend lies totally within their property. The canal system is a navigable waterway. The stated purpose of the Petitioners' proposed project is to prevent persons who live above the Petitioners' property from using the waterway for boating access to the Gulf of Mexico. The project would serve as a clear obstruction to navigation within the canal system. The Bayside Estates subdivision is located on the canal system above the point where the Petitioners would construct their proposed cable. There are approximately 300 property owners in the subdivision and as many as 150 of them are boat owners. These persons presently utilize the portion of the canal system which the Petitioners propose to block for water access to the Gulf of Mexico. These persons purchased property in the subdivision with the understanding and the belief that they would have water access to the Gulf of Mexico. Other than the fact that it would serve as an obstruction to navigation, the Petitioners, proposed cable would have no environmental impact, except perhaps an aesthetic one. The cable would not obstruct the flow of water, and would not be a source of pollution.
Findings Of Fact The Parties. The Petitioner, Clifford O. Hunter, is the owner of real property located at Dekle Beach, Taylor County, Florida. Mr. Hunter's property is located at lot 53, Front Street, Dekle Beach, within section 22, township 7 south, range 7 east, Taylor County. Respondent, the Florida Department of Environmental Protection (hereinafter referred to as the "Department"), is an agency of the State of Florida with responsibility for, among other things, dredge and fill permits involving Florida waters. Mr. Hunter lived in a home on his Dekle Beach property until a storm in March of 1993 destroyed the home. Mr. Hunter's Application for Permit. On or about June 2, 1993, Mr. Hunter applied for a wetland resource permit to rebuild his home, construct a bulkhead and fill 1750 square feet of salt marsh. The permit was designated No. 62-232123-2 by the Department. Mr. Hunter also sought approval for the construction of a dock. The dock, however, is exempt from the permitting requirements of Rule 17- 312.050(1)(d), Florida Administrative Code. On July 21, 1993, the Department issued a Notice of Permit Denial. The Notice of Permit Denial was received by Mr. Hunter. On August 13, 1993, Mr. Hunter filed a Request for Formal Administrative Hearing with the Department contesting the denial of his permit application. The Department's Jurisdiction Over the Proposed Project. The proposed project involves dredging and filling in the waters of the State of Florida. A wetland resource permit is, therefore, required. Wetland jurisdiction of the State of Florida extends to the eastern edge of an existing concrete slab on Mr. Hunter's property from a canal adjacent to Mr. Hunter's northern boundary. The canal connects with the waters of the Gulf of Mexico. The Gulf of Mexico surrounding Dekle Beach, except for an area extending 500 feet outward from the town limits of Dekle Beach, is within the Big Bend Seagrasses Aquatic Preserve. The preserve is an Outstanding Florida Water (hereinafter referred to as an "OFW"). The evidence presented by the Department to support findings of fact 9, 10 and 11 was uncontroverted by Mr. Hunter. Impact on Water Quality Standards. The weight of the evidence failed to prove that the Mr. Hunter has provided reasonable assurances that the proposed project will not lower the existing ambient water quality of waters of the State of Florida. The evidence presented by the Department concerning adverse impacts of the proposed project on water quality standards was uncontroverted by Mr. Hunter. Approval of Mr. Hunter's proposed project would allow the placing of fill in an intertidal area and the elimination of the portion of the intertidal area filled. Intertidal areas help maintain water quality by acting as a filter for water bodies. Mr. Hunter has obtained a variance from the Department of Health and Rehabilitative Services which will allow him to place a septic tank on his property if the permit is granted. The septic tank will leach pollutants. Those pollutants will include nutrients, viruses and bacteria. Because the soil around the septic tank is very saturated, filtering of the pollutants will be low. Pollutants will, therefore, leach into the waters of the State of Florida and adversely impact water quality standards of the canal adjacent to Mr. Hunter's property. Under such circumstances, Mr. Hunter has failed to demonstrate that the project will not lower existing ambient water quality of waters of the State of Florida. Public Interest Test. Mr. Hunter failed to present evidence to support a conclusion that the proposed project will not be adverse to the public interest. Rather, the unrebutted evidence presented by the Department supports a finding that Mr. Hunter's proposed project will not be in the public interest, especially when the cumulative impacts of the proposed project, discussed, infra, are considered. Possible adverse impacts to the public interest include the following: The septic tank which Mr. Hunter will place in the 1750 square feet of filled area will allow fecal coliform, viruses and pathogens to leach into the waters of the canal adjacent to Mr. Hunter's property. Anyone who enters the canal could be infected from bacteria and viruses leaching from the septic tank. The conservation of fish and wildlife would also be adversely affected by the adverse impact on water quality and by the elimination of intertidal area. Recreational value of the canal would be reduced because of the adverse impact on water quality. The proposed project is for a permanent structure. Cumulative Impact. There are a number of applications for permits similar to the application filed by Mr. Hunter which have been filed by property owners of Dekle Beach whose homes were also destroyed by the March 1993 storm. If Mr. Hunter's permit application is granted, the Department will have to also grant most, if not all, of the other similar permit applications. Approximately 20 to 30 other applications involve similar requests which will allow the placement of fill and the installation of septic tanks. The resulting fill and use of septic tanks will have a significant cumulative adverse impact on the waters of the State of Florida. The cumulative impact from leaching effluent from the septic tanks on the waters of the State could be substantial. In addition to the impact on the canal adjacent to Mr. Hunter's property, there will a cumulative negative impact on the ambient water quality of approximately 20 septic tanks on the canals and on the OFW. Errors in the Department's Notice of Permit Denial. The Notice of Permit Denial issued by the Department contained the following errors: An incorrect description of Mr. Hunter's lot number and section number; An incorrect statement that the amount of Mr. Hunter's proposed fill would eliminate 3,200 square feet of marsh; An incorrect statement that Mr. Hunter proposed to fill his lot for a distance of 64 feet waterward. The errors contained in the Notice of Permit Denial did not form any basis for the Department's denial of Mr. Hunter's application. The errors were typographical/word-processing errors. Several notices were being prepared at the same time as the Notice of Permit Denial pertaining to Mr. Hunter. The incorrect information contained in Mr. Hunter's Notice of Permit Denial was information which applied to the other notices. Other than the errors set out in finding of fact 23, the Notice of Permit Denial was accurate. Among other things, it was properly addressed to Mr. Hunter, it contained the project number assigned by the Department to Mr. Hunter's proposed project and it accurately reflected the Department's decision to deny Mr. Hunter's permit application. Mr. Hunter responded to the Notice of Permit Denial by requesting a formal administrative hearing to contest the Department's denial of his application. On December 20, 1993, Mr. Hunter received a letter from the Department which corrected the errors contained in the Notice of Permit Denial. The corrections were also contained in a Notice of Correction filed in this case by the Department on December 20, 1993. The Notice of Permit Denial was received by Mr. Hunter within 90 days after his application was filed. The corrections to the Notice of Permit Denial was received by Mr. Hunter more than 90 days after his application was filed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order dismissing the petition in this case and denying the issuance of permit number 62-232123-2 to Clifford O. Hunter. DONE AND ENTERED this 26th day of April, 1994, in Tallahassee, Florida. LARRY J. SARTIN 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 26th day of April, 1994. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Mr. Hunter's Proposed Findings of Fact Accepted in 1 and 3. Accepted in 2. Accepted in 4. Although Ernest Frey, Director of District Management, Northeast District Office of the Department, did ask Mr. Hunter whether he wanted to sell his property to the State, the evidence failed to prove why Mr. Frey asked this question, that Mr. Frey asked the question in his official capacity with the Department, or that Mr. Frey made the inquiry at the direction or on behalf of the Department or the State. More importantly, the evidence failed to prove that the Department denied the permit sought by Mr. Hunter because of any interest the State may have in purchasing Mr. Hunter's property. See 4. 6-8 No relevant. Not supported by the weight of the evidence. Accepted in 6, 23, 28 and 30. Not a proposed finding of fact. See 8. The "aerial photo, Petitioner's exhibit 6, does not show "No vegetation behind the slab, nearly to the Mean High Water Line . . . ." Respondent's exhibit 3 does, however, show vegetation as testified to by Department witnesses. 13-14 Not supported by the weight of the evidence. Not a proposed finding of fact. Generally correct. Mr. Hunter was not properly put on notice of "alternatives" by the Notice of Permit Denial, as corrected, issued by the Department. Summation: Mr. Hunter's Summation was considered argument and was considered in this case. The Department's Proposed Findings of Fact Accepted in 1 and 3. Accepted in 2. Accepted in 1 and 4-5. Accepted 6-7. Accepted in 8. 6-9 Hereby accepted. Accepted in 12. Accepted in 13. Accepted in 14. Accepted in 15. Accepted in 19. Accepted in 20. Accepted in 15. 17-18 Accepted in 15 and hereby accepted. Accepted in 15 and 20-21. Accepted in 10. Accepted in 22. Hereby accepted. Accepted in 22. Accepted in 12. Accepted in 15-16. Accepted in 17 and 21. 27-28 Accepted in 17. Accepted in 18. Accepted in 13. Accepted in 16. 32-33 The Notice of Permit Denial, as corrected, did not put Mr. Hunter on notice that the alternatives raised by the Department at the final hearing would be an issue in this case. Those alternatives should not, therefore, form any basis for the Department's final decision. Accepted in 24-25. Accepted in 23. Accepted in 25. Accepted in 24 and hereby accepted. Accepted in 26. COPIES FURNISHED: Clifford O. Hunter 1410 Ruby Street Live Oak, Florida 32060 Beth Gammie Assistant General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-9730 Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, Esquire General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact Respondent, Underwood Mortgage and Title Co., has filed a two-part application requesting a permit from the Respondent, State of Florida, Department of Environmental Regulation, to conduct certain activities contained in the application. The first part of the application asks that the Respondent, Underwood, be allowed to construct a pier facility extending into the St. Lucie River adjacent to a condominium development known as the River Club Condominium. The condominium and St. Lucie River are located in Martin County, Florida. The proposal calls for portable water service and twenty to thirty amp electrical service to be provided to the dock area. The pier facility would provide fifty (50) boat berths for tenants of the River Club Condominium. The dock facility would accommodate boats of up to thirty-five feet in length. There are additional areas in the dock which would allow tenants of the River Club Condominium and their guests to fish from the dock and to pass their time by sitting on the dock. The application does not call for fuel services for the boat craft or for live aboard on those craft and it is not contemplated by the application that there would be sewage pumped out from the pier into the water body. The second part of the application requests a permit which would allow the removal of a sand spit located in Warner Creek, a tributary to the St. Lucie River, adjacent to the River Club Condominium property. The estimated amount of material to be dredged is four hundred (400) cubic yards. The original reguest contained an application for permit to construct a separate walkway on the southwest shore of Warner Creek but that request has been withdrawn. The Petitioner, Beacon Twenty-One Condominium Owners Association, Inc., is a member of a nonprofit corporation made up of tenants of the Beacon Twenty- One Condominium which is located adjacent to River Club Condominium with property fronting Warner Creek which affords access to Warner Creek. This group is opposed to the permit request made by Respondent Underwood as that permit request is presently constituted. Consequently, the Petitioner has filed a Petition in opposition to the permit request, leading to the de novo hearing conducted in this cause on February 14, 1980. The hearing was occasioned in view of the Respondent, Department of Environmental Regulation's Statement of Intent to issue the permit requested, which Statement of Intent to issue was entered on October 17, 1979. A copy of the Statement of Intent to issue may be found as Respondent, Department of Environmental Regulation's Exhibit 4 admitted into evidence. The challenge Petition is by letter drafted by Ed Thompson, who was the President of the Petitioner at the time the Petition letter was entered. The date of the Petition letter is October 29, 1979. The County Commissioners of Martin County, Florida, have indicated that they are without objection to the project as now proposed. In addition, the State of Florida, Department of Natural Resources, stated that it is without objection to the project as proposed and made this position known through correspondence of January 25, 1979, a copy of which may be found as the Respondent, Department of Environmental Regulation's Exhibit 3 admitted into evidence. Respondent Underwood's Exhibit "A" admitted into evidence is an aerial photograph taken by the Tax Assessor's office of Martin County and it depicts those buildings associated with River Club Condominium in a yellow color and the white overlay on this exhibit shows the proposed dockage. Respondent Underwood's Exhibit "B" admitted into evidence shows a drawing to scale of the shoreline at the project site. The lines of water depth below the mean low water line which would be available to accommodate the draft of the boats using the dockage and water surrounding that dock are also shown. The green color corresponds to three feet, brown corresponds to four feet and red corresponds to five feet or more. Respondent Underwood's Exhibit "C" admitted into evidence is the same as Exhibit "B" with the addition of an overlay drawn in a dark blue color which shows the proposed dock and dock area. The pier if constructed would be a distance of approximately 5,680 feet from the outer dock area, easternmost portion of the pier, to the eastern bank of the St. Lucie River. It is approximately 3,000 feet from that dock to the main channel of the Okeechobee waterway/intercoastal channel. Those boats coming out of Warner Creek from the area of the existing dock owned by the Petitioner pass within approximately two hundred (200) feet of the proposed dock of Respondent Underwood and would be operating in a depth of water of approximately five (5) feet or more when passing the pier. The sand spit which Respondent Underwood is requesting to remove is depicted in its Exhibit "D" admitted into evidence which is a photograph which has been blown up to show the nature of that spit. The removal of the spit as now requested would cause the creek bottom to be lowered to minus four (- 4) feet mean sea level, which is a differential of three (3) inches from the mean low water line in the area of Warner Creek where the spit is being dredged. The proposal calls for the removal of four hundred (400) cubic yards of materials; however, the amount to be removed to alleviate the spit has increased since the time of the application due to the events associated with Hurricane David and upland erosion. It is proposed that the dredging to be done will be done with an accompanying silt screen being utilized during the time of the dredging and the materials to be dredged will be used on the site of River Club Condominium, which is adjacent to the dredge work area. In reviewing the project, the Respondent, Department of Environmental Regulation, performed a biological appraisal and a report was rendered by the employee performing that function. The contents of that report may be found in Respondent, Department of Environmental Regulation's Exhibit 1 admitted into evidence. The biological inspection was made in March, 1979, and was accomplished by the employee snorkeling in the area of Warner Creek to examine the waters and the bottom of the creek and the employee taking depth soundings from the mouth of Warner Creek up to the area of Warner Creek which is adjacent to Beacon Twenty-One Condominium. The observations of that employee and those of the applicant's witness establish that this project will not interfere with navigation in Warner Creek or in the St. Lucie River. The observations of the Department's employee establish that there is a distinct flow of water through the area at the mouth of Warner Creek which allows pollutants in that creek to be swept away into the St. Lucie River and the current is strong enough to cleanse the area around the proposed dock project site to the extent that no degradation of the water in the area of the project site can be expected. The areas of the project are located in Class III waters and those waters are not part of an aquatic preserve, nor are they "Outstanding Florida Waters." Warner Creek is a natural body and the lower reaches of that water body are inter-tidal to the St. Lucie River. The lower reaches of the creek are brackish in character being inter-tidal with the St. Lucie River. The upper reaches of the creek are fresh water in character. The sandbar spit to be removed is vegetated with transitional species of saltgrass and sea purslane. The base of the sandbar is bordered by a fringe of white mangroves and Brazilian pepper which in turn are bordered by a steep bank that rises five to six feet to the uplands. The soils in the sandbar are made of coarse sand. The soils in the general area of Warner Creek vary from compacted sand in the one to three-foot depths of the shoaled areas to layers of partially consolidated organic muck in the depths four to five feet. (The depths mentioned refer to depths at mean low water.) The brackish nature of the St. Lucie River which has been mentioned before is due to the saltwater which the river receives from the Atlantic Ocean via the St. Lucie Inlet and fresh water which is received by virtue of natural storm water runoff and from the several flood control district canals draining Lake Okeechobee and farmland to the west. The shoreline of the St. Lucie River rises eight (8) to twelve (12) foot above the water line and it is characterized by sandy beach inter-tidal zones bordered by overhanding terrestrial vegetation with transitional vegetation made up of grasses, Australian pine, cabbage palm, sea grape and corn vine and clusters of red mangroves which occur intermittently along the shore line. There is occasional Spartina forming a narrow fringe at the high water line. Submerged grasses are not a normal occurrence in the river due to its turbid and tannic condition. There is some Cuban shoal weed which does appear in sparse patches within the shallow sandy areas of the river. The bottom soils in the shallow area which is the area zero to four (4) feet in depth, consists of sand intermixed with other low to moderate concentrations of muck. The area five (5) feet or deeper consists of partially consolidated muck and deteritus intermixed with shell fragments. Some of the species of fauna collected in the biological survey included Decapods (grass shrimp), Palaemonetes intermedius; pink shrimp Panaeus duorarum; blue crab, Callinectes sapidus; (Molluses) virgin nerite, Neritina virginea; Venus clam, Anomalocardia auberiana; mussel Ischaduim recurvum; oyster; (Fish) pinfish, Lagodon rhomboides. Observations made by the person performing the biological assessment on behalf of the Respondent Underwood demonstrate that no live oysters are found in the area of the proposed dock in view of the desalinization which occurs due to the inter-tidal activity between Warner Creek and the St. Lucie River. Removal of the sand spit would cause the removal of the vegetation associated with that feature, nonetheless its removal would improve navigation and flow patterns associated with Warner Creek. Any turbidity problems that would be associated with the construction and utilization of the project are not expected to be violative of standards. This is due to the nature of the bottom of the water bodies in the area of the proposed project. No toxic materials in excess of standards are expected to be present at the project site. In the past manatees have been observed in the area of the St. Lucie River and the project as proposed would not be expected to deter the manatee in its efforts to gain entrance into Warner Creek if this effort was made; however, manatees have not been observed in the area of the project in the prior six (6) to eight (8) months leading up to the hearing date and nothing in the hearing leads to the conclusion that the project as proposed, notwithstanding the introduction of boat craft into the river at that area, constitutes such a risk for the manatee that the project should not go forward. This determination is supported by the fact that Warner Creek does not provide significant food resources for the manatee. It was shown that a certain amount of soil has eroded from the uplands into Warner Creek by being washed into the creek by rains and this has caused a confluence which is the sand spit sought to be removed, and the potential exists that soil may be introduced into the water at the area of the dock now proposed for construction.
