The Issue The issues to be resolved in this proceeding concern whether the Respondent, Tom Mertens, committed a dredge and fill violation within the jurisdiction of the Department by conducting dredging and filling activities in the landward extent of waters of the State, without an appropriate permit, and whether the amount of the Department's costs and expenses associated with determining and abating the pollution involved are reasonable.
Findings Of Fact The Department is an agency of the State of Florida charged with administering and enforcing the dredge and fill provisions contained in Chapter 403, Florida Statutes, and attendant rules contained in Title 62, Florida Administrative Code. The Respondent, Tom Mertens, is a citizen of the State of Florida, who owned a parcel of real property located in Section 1, Township 1 South, Range 17 West, latitude 30 degrees, 25 minutes, 50 seconds, longitude 85 degrees, 54 minutes, 30 second, in Washington County, Florida, at times pertinent hereto. Linda Mertens is named as a Respondent in this action, but no evidence concerning her involvement in the subject matter has been presented. Based upon reports that it had received of certain construction or mechanical work taking place on the area in question, on the margin of the Choctawhatchee River, the Department identified the Respondent, Tom Mertens, as the owner of the property on which certain activities were allegedly occurring and arranged to meet with him to inspect the property. An inspection of the property revealed that dredging and filling activities had taken place. The inspection occurred on December 9, 1992. The inspection revealed that fill material had been placed covering .36 acres, an area of the property approximately 390 feet x 25 feet ("fill road") and another area approximately 70 feet x 25 feet at the lowland end of the fill road. The fill road appeared to be newly installed based upon the appearance of the clay material used, the instability of the road bed and the lack of vegetative growth in an on the sides and adjacent to the road bed, coupled with the appearance of adjacent felled trees. The clay material used for the fill road is not that normally found in a wetland area, such as the site in question. The property in question is in river-bottom land, bordering the Choctawhatchee River. The Department informed the Respondent that the activities done on the property appeared to violate Chapter 403, Florida Statutes, and pertinent provisions of Title 17, Florida Administrative Code. It so informed the Respondent in a warning letter posted on December 29, 1992. Dredging and filling activities in the landward extent of waters of the State require permits from the Department prior to commencing the activity. The Respondent did not have any permit for the dredging and filling activities observed to have occurred on the property. The Respondent had never applied for a permit for such activities. No permission of any sort had been obtained from the Department authorizing conduct of the dredge and fill activities observed on the property by Department personnel. The Choctawhatchee River is a specifically-named water body of the State of Florida and is classed as an outstanding Florida water. Department employee, James Eric Buckelew, has been an environmental specialist with that agency for some 6-1/2 years. He works in the Division of Submerged Lands and Environmental Resource Permitting, formerly called the Division of Wetlands Management. That Division is in charge of dredge and fill permitting activities for the Northwest District of the Department. The jurisdiction of the Northwest District includes the property in question. Mr. Buckelew routinely makes wetland determinations, including delineating the landward extent of State waters, reviewing dredge and fill applications, and insuring that State water quality standards are maintained throughout the regulatory processes within the scope of his duties. He has a Bachelor of Science degree in Environmental Resource Management and Planning and has completed all of the graduate course work for a Master's degree in Coastal Zone Management Biology. His academic courses included wetlands vegetation and ecology, plant taxonomy, botany, soil science, hydrology, geology, geography, hydrologic indicators, and training in the use of a dichotomous key. He has had additional training from the Department's Jurisdictional Evaluation Team, which provides Department employees with training on identification of vegetation, soil indicators, and hydrology, approximately every six months during his 6-1/2 years of tenure with the Department. The Department routinely relies upon his judgment in making determinations of wetland areas and delineations of the landward extent of State waters. Consequently, adequate proof being presented, Mr. Buckelew was accepted as an expert in making determinations of what areas lie within the landward extent of waters of the State and what areas are wetlands in terms of scientific application of the standards contained in the Department's organic rules, particularly the "vegetative index" to a particular site. During the inspection of the property on December 29, 1992, Mr. Buckelew made a determination concerning whether the property impacted by the dredging and filling activities was within the Department's jurisdiction. He determined that it was within the landward extent of waters of the State, using both hydrological and vegetational indicators. The portions of the property impacted by the dredge and fill activities were dominated by jurisdictional vegetation, including black gum (Nyssa biflora); overcup oak (Quercus lyrata); sweet bay magnolia (Magnolia virginiana); cypress (Taxodium); water oak (Quercus nigra); sweet gum (Liquidambar styraciflua); american holly (Ilex opaca); and ironwood (Capinus caroliniana). The portions of the property impacted by the Respondent's dredge and fill activities were in an area dominated by hydrologic indicators of Department jurisdiction, including staining of leaves, buttressing of tree trunk bases, the low elevation of the portion of the property involved, and its proximity to the Choctawhatchee River. The portions of the property impacted by the activities in question have been periodically inundated with water which covered the fill road. Consequently, Mr. Buckelew established that the portions of the property impacted by the dredge and fill activities, indeed, were within the landward extent of the waters of the State and thus within the Department's dredge and fill jurisdiction. Mr. Buckelew walked the entire length of the connection between the areas impacted by the dredge and fill activities and the waters of the State in making this determination, tracing the vegetational and hydrologic connections from the waters of the State to the impacted areas. He did not use soil sampling or analysis in his determination of the landward extent of waters of the State because it was unnecessary in the formation of his opinion. Under the circumstances, employment of the vegetative index and its application to the site would have been sufficient alone. The Department established that it incurred costs and expenses of $250.10 in tracing and abating this violation and pollution source. Mr. Buckelew, in establishing this expense and cost amount, also established that these were reasonable costs and expenses under the circumstances. Removal of the fill material and re-grading of the impacted areas to their natural grade, as well as allowing them to revegetate with natural species that exist on site, would essentially correct the dredge and fill violations and the pollution problem they engender. The Hearing Officer has considered the demeanor of the Respondent and the other witnesses, his prior sworn statement at deposition and his admissions made to Mr. Buckelew during the investigatory phase of this proceeding. Notwithstanding his testimony at hearing to the contrary, it is found that he placed the fill on the portions of the property at issue. It is, likewise, found that the Respondent or persons under his behest, direction, and control used various pieces of mechanical equipment to haul dirt to the fill sites and to perform the dredging and filling activities, including hauling of the fill to the site and its distribution on the property in the nature of that observed by the Department at the time of its inspection. It is found that the dredge site, or the portion of it referred to as the boat ramp, had straight, square-cut sides, which are inconsistent with that sloping area being caused by a flooding event, as maintained by the Respondent. The shape of the boat ramp was clearly consistent with dredging with mechanical equipment. In summary, based upon Mr. Buckelew's and Mr. Gilmore's testimony, which is accepted, regarding the fresh appearance of the fill road, the road's clay composition which is a soil type uncharacteristic of a river flood plain, as well as the demeanor of the Respondent, including consideration of his prior sworn statement at deposition, it is determined that the Respondent placed the fill material in question within the landward extent of waters of the State. The Respondent, in his opening statement, candidly admitted obtaining permits from the Department in the past for other activities. It is determined that he was reasonably aware that dredging and filling on this property might require a permit from the Department. Finally, based upon the totality of the credible evidence and the circumstances proven in this proceeding, the enforcement action and assessment of costs and expenses advanced by the Department are imminently reasonable. This is especially true in view of the fact that the Department has forborne attempting to fine the Respondent, within its authority, as much as $20,000.00.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent perform the following: Within thirty (30) days from the effective date of the Final Order, the Respondent shall make payment of $250.10 to the Department for the expenses incurred by the Department. Payment shall be in the form of a cashier's check or money order payable to the Department. Within sixty (60) days from the effective date of the Final Order, the Respondent must complete re-grading of the areas of the fill road and boat ramp identified in Exhibit 2 to the NOV and re-grade those areas so as to re- establish the original pre-existing contours and elevations existing before the filling, as indicated by the adjacent, undisturbed areas. The Respondent must also stabilize the restored areas as needed to retain sediment on site during the restoration activities. The Respondent shall utilize turbidity control devices throughout the restored areas, including the use of filter cloth in the vegetated wetlands and floating screens in the open waters. The Respondent shall provide written notification to the appropriate Department personnel within ten (10) days of the completion of the above-described restoration work. The Respondent shall immediately, upon the effective date of the Final Order, cease and desist from further dredging or filling within waters of the State prior to receiving the necessary permit from the Department or written notice from the Department that the proposed activity is exempt from the permitting requirements of the Department. DONE AND ENTERED this 1st day of December, 1995, in Tallahassee, Florida. P. MICHAEL RUFF, 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 1st day of December, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3897 Petitioner's Proposed Findings of Fact 1-41. Accepted. Rejected, as unnecessary and immaterial. Accepted. Respondents' Proposed Findings of Fact 1-3. Accepted, but not materially dispositive. 4. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 5-6. Rejected, as immaterial and as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as patently contrary to the preponderant weight of the evidence. COPIES FURNISHED: Michael C. Owens, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Mr. Tom Mertens Star Route Box 5B Ebro, Florida 32437 Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000 Kenneth Plante, Esquire General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000
Findings Of Fact Petitioner Melvin J. Laney is the owner of Rodriguez Key which is located approximately one and one-half miles from Key Largo, Florida, in the Atlantic Ocean. The island consists of about 170 acres and is undeveloped. It is approximately 9/10 of a mile long and 3/10 of a mile wide. By application, dated July 31, 1978, Petitioner requested a permit from Respondent Department of Environmental Regulation (DER) to conduct specified activities incident to the establishment of a primate breeding and research farm. The proposed activities included the construction of a floating pier, filling a sunken barge which is located 100 feet from the shoreline with coral rock and riprap, constructing two buildings on stilts on the east end of the island, clearing some 8.9 acres of black mangroves to provide trails for the placement and servicing of cages, installation of prepackaged waste treatment units, and temporary cages. (Testimony of Petitioner, Exhibits 1,8) DER's South Florida branch office personnel reviewed the application and issued an intent to deny the requested permit by letter of March 8, 1979, for the reason that Petitioner had failed to obtain local approval required pursuant to Section 253.124,. F.S., and that violations of State water quality standards could be expected by the proposed project. Further, the notice noted that the project would result in adverse effects to marine productivity and wildlife population contrary to the public interest under Chapter 253. Petitioner thereupon requested a hearing. (Petition, Exhibit 6,8) Petitioner plans to bring rhesus, squirrel, and other research primates into the State for the purpose of establishing a breeding and research farm on Rodriguez Key. The primates would be owned by sponsors who would pay Petitioner to provide housing, care and associated services. The project is designed to meet the needs of researchers for the testing of vaccines and other scientific purposes. There is currently a shortage of primates in this country due to a 1978 embargo on the export of such animals by the government of India who had previously been the primary supplier of research primates. (Testimony of Petitioner, Darrow, Exhibit l) Petitioner intends to fill a partly sunken barge near the northeast shoreline with boulders and riprap, cover it with a concrete floor, and construct a floating pier approximately 130 feet long between the shore and the barge for off-loading of supplies and equipment. The project contemplates the construction of an animal care house and a residence, both to be placed on stilts which will each contain a maximum of 10,000 square feet of space. No filling or dredging is planned for either structure. This is a modification from the original permit application which called for some 3,000 cubic yards of fill at the building site. At the western end of the island, Petitioner plans to install 16 rows of prefabricated cages with 64 cages per row, which represents a total area of approximately 12.48 acres. About 4.16 acres of that area will be cleared or otherwise disrupted to place and connect the cage rows. The cages will be secured and there is little likelihood that the animals will escape. Under a current permit from the Fresh Water Game and Fish Commission, the holding cages must be constructed to withstand hurricanes, surge and wind, and provide adequate protection for the animals during such storms. They must also meet or exceed minimum pen specifications established by the Commission. The permit submitted in evidence expired on June 30, 1981. The cages will be prefabricated and placed on metal pilings which are attached to underground rock. There will be troughs located underneath a grate floor for animal wastes which will be collected and pumped to a sewage disposal system. In order to take supplies, materials, and animals to and from the cage area, Petitioner intends to clear a 20-foot wide perimeter "trail" around the island which would be attached at both ends by lateral similar trails. The total distance of the trails is approximately 9,000 feet. The need for a perimeter trail is to deliver materials on one side of the island, service the animals, and then leave by a different route for the purpose of transporting employees, ill animals, or transporting of any animal that might affect the control area for testing and conducting vaccine research. The perimeter trails are designed to be no closer than 75 feet from a red mangrove fringe border around the island. For transportation purposes, it is proposed to use gasoline powered "all terrain" wheeled vehicles which will traverse the trails along two parallel two-inch diameter cables suspended horizontally 36 to 48 inches above the ground level. The cables will be attached to concrete anchors consisting of four inch by four inch steel tubes which are placed at 100 foot intervals along the trails. The tubes will be either hand-driven into subsurface rock several inches or driven by means of a portable pile driver. The tubes will additionally be supported by a concrete block "dead man" attached to a 5/8-inch cable on either side of the tubes and placed underground. Turning platforms would be placed at trail intersections on top of the cable road so that a vehicle could drive upon the platform and execute a turn to a connecting cable road. The low pressure tread vehicles used to traverse the roads will be equipped with shoes or flanges on the inside of the tire rims to securely ride on the pretensioned cables. They will also have low pressure pneumatic tires. The vehicles will also be used in interior areas where mangroves are not present. They will ride on the ground or upon metal plates. These areas are covered with about 9,000 square feet of batis (saltwort) cover which eventually will be killed by vehicle use. Batis is important for sediment stabilization and its removal can cause siltation problems in waters surrounding the island. The need for a 20-foot swath for the cable road is explained by the fact that transport of the 17-foot cages must be accomplished by placing them sideways on the transporting vehicles in order to install and periodically provide service, repair or replacement. A soil study made in representative areas of Rodriguez Key except the west end shows that coral rock exists at levels of approximately 11 to 15 feet below the ground surface, thus necessitating the use of pilings for support purposes rather than shallow footings. Although no soil borings were taken at the west end of the island, the soil expert is of the opinion that the borings reflect general rock characteristics of the entire island. Petitioner's civil engineer who designed the current cable road system prepared several alternative methods of construction, and is of the opinion that suspension of the cables at a height of 15 feet instead of three to four feet as currently planned would be feasible except for cage servicing purposes. A further alternative that was proposed by Petitioner's engineer expert is to place the cages at the east end of the island and utilize a boardwalk constructed of an eight-foot wide precast concrete slab walkway as a boardwalk for positioning of the cages. Six inch by six inch timber posts would be driven to the hardrock layer for a minimum of ten feet to anchor the Platform. The engineer testified that this alternative would be cost effective if used in lieu of the cable road. Respondent's Environmental Specialist testified that such a modification to concentrate the project on the east end of the island would be recommended because it would eliminate the cable road and its adverse environmental consequences Rodriguez Key is almost completely vegetated by mangroves with a red mangrove fringe around the perimeter and black mangroves on the higher interior areas. Some of the red mangroves are 100 to 150 feet in height and the black mangroves range from 20 to 40 feet high. In the east center of the island is an open area of batis, and red mangroves are located in the center and west end of the island. White mangroves are also present in the south side of the island. Throughout the island, there are watermarks on trunks and prop roots ranging from four inches to six inches, and an abundant growth of brown algae. Such algae requires regular submergence to exist. No significant forms of wildlife are present on the island. Batis is a submerged species which is important for sediment stabilization. In order to clear the 20-foot wide trails with cable suspensions as low as 36 inches above ground, it will be necessary to prune or cut back a large number of mangroves to that height. However, the prop roots of the red mangroves extend above six feet in some areas. If the trees and roots are cut to a three-foot height, it is unlikely that they would survive. Red mangroves produce leaf detritus which forms a part of the food chain for marine life. Such trees are island stabilizers which provide filtration and uptake of nutrients associated with runoff and intertidal waters. The waters surrounding the island are categorized as Class III waters under State regulations. The presence of brown algae on prop roots is evidence that the island is regularly inundated to some degree. Turtle grass, which is an indicator of regular tidal flushing, is in abundance on the flats waterward of the island but not found in the interior. During a visit to the Rodriguez Key in 1981, DER personnel observed standing water across the entire island to a depth of from one inch to one foot at high tide. (Testimony of Carroll, Key, Helbling, Exhibits 6, 8) Thirteen public witnesses testified at the hearing, including residents, landowners, and representatives of housing developments in the Key Largo area. They were uniformly opposed to the proposed project for a variety of reasons. Primarily, they fear that the presence of primates on the island a short distance away from Key Largo will produce excessive noise, odor, and water pollution in the adjacent waters which are used for recreation. Additionally, some are of the opinion that their property values will decrease as a result of the activity. A District Naturalist employed by the Department of Natural Resources at the nearby Coral Reef State Park testified that her agency opposes the proposed activity due to concern that it will cause degradation of water quality in the surrounding waters and that increased boat traffic could damage the shallow coral reef beds which lie near the State park. There is also general apprehension among the nearby residents that a hurricane could destroy any facilities on Rodriguez Key and cause damage to their property. A petition signed by a large number of Key Largo residents reflects their opposition to Petitioner's use of Rodriguez Key as a primate breeding and research facility. (Testimony of public witnesses (Hearing Officer's Exhibit 2) Exhibits 9-10) There probably would be no odor problem connected with the presence of monkeys on Rodriguez Key if the cages are regularly cleaned and fecal waste is disposed of according to sanitary methods. Although primates are inclined to vocalize at feeding time or when strangers appear, they do not screech at great length and the presence of trees and other foliage would modify the sound. (Testimony of Darrow)
Recommendation That the application of Petitioner Melvin J. Laney, as modified in the above Conclusions of Law, be approved and that a permit authorizing the requested activities be issued pursuant to Chapter 403, F.S., together with water quality certification under PL-500, subject to standard conditions reasonably necessary for prevention of pollution. DONE and ENTERED this 14th day of September, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1981. COPIES FURNISHED: Ross A. McVoy, Esquire Madigan, Parker, Gatlin, Swedmark and Skelding Post Office Box 669 Tallahassee, Florida 32302 Ray Allen, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Honorable Victoria Tschinkel Secretary, Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 =================================================================
Findings Of Fact Petitioner and DER have stipulated to the following facts: Petitioner is the owner and developer of real property in Franklin County, Florida. 2. DER has adopted Rules 17-4.28(2), 17-4.28(8)(a) and 17-4.242(1)(a)2, Florida Administrative Code, which: require a permit for dredge and fill activities under Chapter 403, Florida Statutes; prohibit permitting of dredge and fill activities in Class II waters approved for shellfish harvesting by the Department of Health and Rehabilitative Services (now the Department of Natural Resources); and require an affirmative public interest showing of an applicant for a license to construct a stationary installation in "Outstanding Florida Waters." These rules substantially affect Petitioner for the following reasons: Petitioner applied to DER for a development permit to dredge a navigation channel from his private canal into Alligator Harbor in Franklin County. The navigation channel was proposed to be 40 feet wide and 400 feet long, and was to be dredged to a depth of minus four (-4) feet mean low water, which would entail removing approximately 3,890 cubic yards of material. On May 28, 1980, DER issued an intent to deny the requested permit in file No. 19- 28442-1E. On June 11, 1980, Petitioner filed a petition for administrative hearing on DER's intent to deny his permit application. On June 12, 1980, DER informed Petitioner it would take no action on its Intent to Deny letter of May 28, 1980, for 60 days and allow Petitioner to submit additional information on the merits of his permit application during that period. DER took no further action regarding the Intent to Deny or Petitioner's permit application, and, after Petitioner's request, on March 5, 1981, DER forwarded the petition for administrative hearing filed with it on June 11, 1980, to the Division of Administrative Hearings. DER's Intent to Deny Petitioner's permit application stated DER had permitting jurisdiction under Chapter 403, Florida Statutes, and under Rule 17-4.28(2), Florida Administrative Code, because the proposed dredging would be in waters of the state within the definition contained in Rule 17-4.28(2), Florida Administrative Code. DER's Intent to Deny Petitioner's application asserted that Petitioner's proposed project was located in Class II waters approved for shellfish harvesting and that dredging in such areas was prohibited by Rule 17- 4.28(8)(a), Florida Administrative Code. DER's Intent to Deny Petitioner's application stated that Petitioner had not "affirmatively demonstrated that the proposed activity or discharge is clearly in the public interest pursuant to Section 17-4.242(2). . . . The parties have agreed that the reference in the aforementioned quote should have been to Section 17-4.242(1)(a)2. Counsel for each of the parties have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact are not contained in this order, they have been specifically rejected as being either irrelevant to the issues involved in this proceeding, or as not having been supported by evidence of record.
Findings Of Fact Respondent/applicant, James L. Carpenter (applicant or Carpenter), is the owner of upland property bordering on and contiguous to a man-made lagoon in Vaca Key near Marathon, Florida. The property is also adjacent to an artificial man-made canal which connects the lagoon to the open waters of Florida Bay. The lagoon and canal are classified as Class III waters of the State while Florida Bay is a Class III Outstanding Florida Water. A more precise location of the property is Section 9, Township 66 South, Range 32 East, Monroe County, Florida. By application dated June 23, 1987 applicant sought the issuance of a dredge and fill permit from respondent, Department of Environmental Regulation (DER), authorizing the construction of an "L" shaped 125'x8' commercial dock with a 10'x8' access walkway waterward of mean high water (MHW) in the canal. The dock and walkway will be located on the property described in finding of fact 1. According to the application, Carpenter owns several "landlocked residences" in the vicinity of the proposed dock and desires to provide dockage for residents who rent his houses. Because of DER concerns that shading might affect photosynthetic capabilities in the vicinity of the project, applicant agreed to revise his application. This revision was made on December 21, 1987 and reduced the dock size to 102'x6' while the access walkway was increased slightly to 12'x8'. Thus, the dock will extend eight feet into the canal beyond the MHW. On January 5, 1988 DER's district office issued an Intent to Issue a permit subject to seven specific conditions incorporated in the permit. This prompted the filing of a petition by petitioner, Lillian Berdeal (Berdeal), who owns upland property bordering on and contiguous to the lagoon, canal and Florida Bay. She operates a commercial seafood business directly across the canal from Carpenter. According to her petition, Berdeal asserts that Carpenter's dock would adversely affect navigation in the canal and the health, safety and welfare or the property of others. The water body in question is a man-made canal facing to the north and providing an outlet for the lagoon to Florida Bay. The lagoon, which measures approximately 150'x100', is fairly well developed. On the east and southeast side of the lagoon lie an outdoor restaurant and Carpenter's boat rental business. Petitioner's seafood processing operation lies on the west and southwest sides of the lagoon and lagoon entrance. Photographs of the area have been received in evidence as DER exhibits 1 and 2 and petitioner's exhibit 1. Presently, there are five finger piers (docks) in front of Berdeal's property at the narrowest point of the canal. These piers are directly across the canal from Carpenter's proposed dock addition. They extend out eight feet perpendicular to the shoreline and are now used by commercial fishermen for docking purposes while using Berdeal's facility. Approximately thirty or forty boats use the finger piers during fishing season (August - May) while up to twenty may use them in the off-season (June - July). Berdeal described those boats as ranging from thirty to forty-five feet in length and having beams up to, but not exceeding, sixteen feet. However, vessels at petitioner's facility on the day of DER's inspection had an average beam of ten feet. The evidence is conflicting as to the canal's width at its most narrow point. According to DER's expert, the minimum width is seventy-six feet, and this figure is accepted as being more credible than Berdeal's own measurement of sixty-three feet. If the project is constructed, Carpenter's dock, together with a boat having a ten foot beam, would use around eighteen feet of the channel at its most narrow width while Berdeal's facility, if used by the largest boat, would take up another twenty-three feet. This would still leave around thirty-five feet of channel for navigation purposes between the two docks at the canal's most narrow point. According to applicant's expert in navigation, James J. Morrison, who has piloted boats in the area for over thirty years, a boat may safely operate in the canal if it has five feet of water on each side. This margin of safety is sufficient in all weather conditions up to and including a small craft warning. If the project is approved, the necessary margin of safety would be available. It is noted also that there are no significant currents in the canal that would adversely affect navigation, and under normal weather conditions, the canal and basin are easily navigable. Petitioner presented the testimony of a commercial fisherman, Leonard Quasney, who expressed concerns that northerly winds periodically drive aquatic weeds and grasses into the lagoon and canal thereby impairing the ability of a boat to safely operate. These weeds are shown in photographs received as petitioner's exhibit 1. It was Quasney's contention that, coupled with the periodic influx of weeds, the addition of a dock at the canal's most narrow point will make navigation more hazardous. However, this theory was discounted by expert witness Morrison who pointed out that, while it is true that floating mats of weeds affect the ability of a person to handle a boat by making the boat's rudder and propeller action less responsive, they do not affect the ability to navigate the canal. In other words, as long as the margin of safety is available in the canal, the presence of the weeds would not hinder a ship's ability to enter and exit the lagoon. This testimony is accepted as being more credible on the issue, and it is found that the new dock will not create a navigational hazard as a result of the weeds. Berdeal is concerned also that the new dock would make it more difficult for fishermen to access her property and therefore cause economic harm to both her and the fishermen. However, this contention was not substantiated. The parties have stipulated that, with the following special conditions proposed by DER at hearing regarding limitations on commercial use, liveaboards and scraping boat bottoms, all water quality standards will be met: All temporary and permanent use of liveaboard or liveaboard type vessels for residential use is prohibited. All on site fueling activities are prohibited. All major vessel repair, such as hull scraping and painting, with the boat in the water is prohibited. Only private use of the dock is permitted. All double parking or rafting of boats along the dock is prohibited. General conditions common to all dredge and fill permits. The parties have stipulated that the "public interest" criteria in Subsection 403.918(2)(a)2. and 4.-7., Florida Statutes (1987), have been satisfied. In addition, a registered engineer has certified that the dock's construction and use will not have an adverse effect on the public health, safety and welfare or the property of others. Petitioner has applied for the issuance of a permit allowing the construction of additional docks at her facility. If the application is approved, these docks will be used for commercial purposes. The proposed impact of this project, and its cumulative impact on the area, was considered by DER in its evaluation of Carpenter's application. However, conditions to be included in Berdeal's permit will minimize any water quality or navigation impacts of the project, even on a cumulative basis.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of James L. Carpenter for a dredge and fill permit be granted subject to those specific, special and general conditions imposed by the agency. DONE and ORDERED this 29th day of August, 1988, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 29th day of August, 1988.
Findings Of Fact Respondent Communities Financial Corporation is a Florida corporation engaged in the subdivision and sale of real property. In 1971 CFC purchased approximately twenty-two sections, or 22 square miles, of real property ("the land") in Township 34 South, Range 33 East, Okeechobee County, Florida, which it proposed to sell as individual one-and-one-quarter (1-1/4) acre lots. The subsequent development of that land is the subject of this proceeding. Respondent Coquina Water Management District ("Coquina") was organized pursuant to Chapter 298, Florida Statutes, by judgment of the Circuit Court for Okeechobee County, Florida to perform drainage activities on the land. The land which CFC purchased in 1971 was originally platted in 1912 in a grid system with roads, drainage canals, and ditches. Extensive drainage was required for use of the land because it was very flat and had a high water table. Approximately one-half of the land was subject to flooding. After it was originally platted it was utilized for cattle ranching with drainage ditches connecting the low areas to encourage runoff. Ten-acre tracts surrounded by dikes and two to three foot deep ditches were used for tomato farming. Such agricultural ditching covered approximately 15 square miles of the property. At one time a hotel was situated on a portion of the property. North-South and East-West roads and a 5,000-foot airstrip were constructed across the property. The East-West road along the South boundary of the property, which is now a state road, has an adjacent drainage ditch which received ranchland water runoff from property east of the land. In 1971 and 1972 CFC registered the platted lots for sale with the Division of Florida Land Sales and Condominiums ("Land Sales") of the State of Florida Department of Business Regulation. In the normal course of compiling the documentation to be submitted for registration, CFC contacted several state regulatory agencies to determine whether such agencies required CFC to obtain permits for development of the property. CFC provided those agencies copies of its drainage plans, which included roads, swales, canals, and control structures. The State of Florida Department of Natural Resources ("DNR") stated that the construction of improvements as planned in the development would not be subject to that agency's jurisdiction for purposes of a dredge and/or fill permit. The State of Florida Department of Pollution Control ("DPC"), predecessor of DER, first stated in a letter of October 4, 1971, to Mr. Moseley Collins, who submitted a "plan of reclamation to DPC, that it had no regulatory responsibilities over the project: In response to your request for comments this Department has conducted a preliminary review of the proposed plan. We have no basic objections to the overall plan of development and believe it could be platted as shown. Specific details as to drainage techniques will be reviewed at a latter [sic] date. It is brought to you [sic] attention that although we have no regulatory responsibili- ties in this area we will welcome the opportunity to review cross sections and details at a latter [sic] date. We thank you for the opportunity to review a project of this magnitude at an early date. [Emphasis added.] The DPC, in a letter of March 30, 1972, to Collins, also observed that: This Department has conducted a review of the revised plan for the subject project and endorse the approach that you are contemplating in developing these areas. I have coordinated with other agencies and organizations and they concur with the approach. We would like to review the project at a future date to deter- mine the method of construction of the swales or greenways to move the water from one lake to another through the complete watershed area. You and your client are to be commended on this approach. From the preliminary layout you can see the possibilities for the potential develop- ment of an area for residential usage that will retain a large percentage of the natural resources and minimize the downstream effect on the overall watershed. Please advise when you want to review the project in greater detail. [Emphasis added.] In connection with the registration of the development, CFC submitted to Land Sales the above-referenced letters from DNR and DPC, detailed evidence of the proposed plan of development, and a public offering statement for use in solicitation of lot sales from the general public. Each offering statement contains several statements to the effect that "this is not a homesite subdivision." Land Sales approved use of the offering statement. In using it to solicit sales, CFC committed to the purchasers that it would complete the required road and drainage improvements by December 31, 1979. CFC commenced sales of lots in the development in 1971. The Agreements for Deed approved by Land Sales and subsequently entered into by CFC with lot purchasers required CFC to deliver improved lots by December 31, 1979. Most of the land sales were made between 1971 and 1973. (6,412 lots were sold and 1,146 were conveyed by June 23, 1977.) Approximately eighty percent of the lots have been sold to date. Up to one-half of the approximately nine thousand lot purchasers hold legal title to their lots pursuant to deeds issued to them by CFC upon full payment. CFC began construction of the promised improvements, consisting of roads and drainage, in 1972. At the present time approximately $1,000,000 of improvements have been completed and approximately $750,000 remain to be completed. In 1973 or 1974, CFC and Coquina submitted plans for the surface water management system which CFC proposed to construct for the property to the South Florida Water Management District ("SFWMD"). The initial plan of development called for the construction of a road and canal system. At the request of SFWMD, the plan was subsequently changed to a road and swale system, and the configuration of one of the control structures was changed. The design changes resulted in more water retention on the property and the preservation of sensitive areas. After several years of analysis and review of the design plan, inspection of the project site, and a public hearing, SFWMD granted conceptual approval for the surface water management system to be constructed by CFC in 1977. The conceptual approval was partially based on the SFWMD staff's assessment than pollutant loadings from the property after development would be less than existing loadings, and that adverse water quality impacts as a result of the proposed development were unlikely. The 1977 SFWMD conceptual approval of the drainage plan for the development was followed by the issuance of a construction permit for the westernmost seven sections on March 15, 1979. Throughout this period construction was continuing. The drainage system as approved consists of grassed lot, roadside, and collector "swales" together with a retention area comprised of natural wetlands in the area of the property known as Ash Slough. The volume of water leaving the property after development will be the same as that leaving the property before development. The drainage conveyances are designed with gradually sloping sides, vary to widths of over 100 feet for the larger collector conveyances, and have depths varying from 2 feet for the "lateral" swales to 3 feet for the larger collector swales. The groundwater table in the area of the project site varies from zero to approximately 30 inches below ground surface. The swales were designed at the request of SFWMD in lieu of the canals proposed within the same easements in the original drainage plan for the development. It appears from the evidence that these drainage conveyances are designed so as to contain contiguous areas of standing or flowing water only following the occurrence of rainfall or flooding. Although some testimony indicated that these conveyances contained contiguous areas of standing water, these observations were made either at isolated times during the progress of construction or soon after a major hurricane passed through the area. Since the purpose of the "swales" is to facilitate drainage from the property, it would appear necessary from an engineering viewpoint to allow some period of time after construction of the swales for them to stabilize to make a valid determination that they will not function as designed. Accordingly, it would not appear unusual that the swales contain areas of standing water until they have been given ample opportunity to stabilize. On the basis of the record in this proceeding, a determination simply cannot be made at this point in time that the swales will not function as designed. Following DPC's initial determination of no jurisdiction in 1971 and 1972, it and DER, its successor agency, were not involved with the project until 1974, when DPC received an inquiry concerning land sales matters from the U.S. Department of Housing and Urban Development. In 1975, a DER staff member conducted a critical review of the Project and filed an internal memorandum faulting the project on the same essential grounds that are the basis for the Notice of Violation issued June 1, 1979. DER representatives participated in various SFWMD meetings from 1975 to 1977 when the conceptual approval of the drainage plan for the project was discussed. During this period, SFWMD forwarded copies of various materials dealing with the project to DER. Further, a DER representative attended the public hearing on September 8, 1977, when the conceptual approval of the project was granted by SFWMD. Respondents' first indication of DER's renewed interest in the development was a letter from DER Subdistrict Manager Warren Strahm to Robert Birenbaum on June 23, 1977. This letter stated, in part, that: The above referenced application/staff report has been supplied to this office by the South Florida Water Management District (SFWMD). It has been determined that your project is subject to Chapters 403 and/or 253, Florida Statutes. A review of drainage plans by our staff indicates the referenced project will comply with Chapter 403, Florida Statutes permit requirements for pollutant discharge. Since these plans have been incorporated into the SFWMD permit, no discharge permit or monitoring in addition to SFWMD permit requirement will be required by the Department at this time. It appears, however, that the referenced project may fall within the permitting requirements set forth in Chapter 17-4, Florida Administrative Code. Pursuant to F.A.C. 17-4.28(2) should any excavation take place in submerged lands or within the transitional zone of submerged lands, dredge and fill permits will be required by this Department prior to commencement of said activi- ties. [Emphasis added.] Please contact Mr. Roger G. Gallop, at the Fort Pierce Branch Office, telephone (305) 464-8525, at your convenience in order to discuss the need for a construction dredge and fill permit. Thank you for your cooperation. Three months later, in a letter from James Brindell to Coquina, Respondents were notified that: A review, by this agency, of the plans associated with your Surface Water Management Permit Applica- tion No. 02187-A indicates that permits will be required from the Department of Environmental Regulation pursuant to Chapter 403 and/or Chapter 253, Florida Statutes for the construction con- templated. Specifically, permits will be required for the construction and operation of discharge structures as well as for any dredging and/or filling in the waters of the state including the submerged lands and transitional zone of these submerged lands. Additionally, certification pursuant to section 401 of F.L. 92-500 may be required. Formal or conceptual appova1 of your project by the South Florida Water Management District does not imply that your project will satisfy the requirements of this agency. Please contact Mr. Warren G. Strahm, Subdistrict Manager, 3301 Gun Club Road, West Palm Beach, phone 305/689-5800, at your earliest convenience concerning application for these permits. (Emphasis added). This letter was followed one-and-one-half months later by a "Letter of Notice" from DER advising Respondents that DER had reason to believe the project was in violation of Chapter 403, Florida Statutes, and requesting CFC to cease any further work. Throughout this series of correspondence, CFC and Coquina maintained that DER did not have permit jurisdiction. This position was reasserted in a letter of November 1, 1977, from Emerson Allsworth, counsel for Coquina, to DER. During this period, numerous meetings were held involving representatives of Respondents and DER in which Respondents were urged by DER to apply for permits. Respondents failed to do so, and, on June 1, 1979, DER issued its Notice of Violation. Natural drainage from the property occurs southwestward into an area known as Ash Slough; southward from the central portion of the property into Gore Slough; and from the northeast section of the property into Company Slough. The headwaters of both Ash Slough and Gore Slough originate on the project site and periodically extend off Respondents' property to the south to join the waters of Chandler Slough. Chandler Slough, in turn, eventually empties into Lake Okeechobee 11 to 15 miles from the property. Company Slough also extends off the project site eastward onto the lands of others. There is, however, insufficient evidence in this record from which to conclude that Company Slough regularly exchanges flow with any other body of water. A "slough", as that term is used in the context of this proceeding, is a surface conveyance pathway for waters whose lateral boundaries are not as well-defined as a stream bed, and whose rate of flow is relatively slow. Due to the flat topography of the project site, Ash, Gore and Company Sloughs have imprecise boundaries, and their rates of flow appear to range at various times from very slow to nonexistent. By Cease and Desist Order dated March 28, 1978, the United States Army Corps of Engineers required Respondents to halt any further work then being conducted on the project, asserting that work in progress at that time was being conducted in waters of the United States, including adjacent wetlands, without first having acquired a permit from the Corps of Engineers. This Order provided, in part, that: Section 301(a) of the [Federal Water Pollution Control Act Amendments of 1972] makes it unlawful to discharge dredged or fill material into waters of the United States unless author- ized by a Section 404 permit issued by the Secretary of the Army acting through the Chief of Engineers. Section 10 of the River and Harbor Act of 1899 prohibits the excavation or depositing of material or erecting any struc- tures in navigable waters of the United States unless authorized by a Department of the Army permit. The work referred to in the paragraph above is deemed to have occurred in waters subject to these statutory requirements without the requisite permits and is considered unlaw- ful by this office. Prior to 25 July, the Corps of Engineers limited the requirement for Section 404 type permits to areas either below the mean high water line in tidal areas or below the ordinary high water line of rivers and streams which either now sup- port, had supported, or were capable of supporting interstate commerce. However, on 25 July 1975, the regulatory juris- diction of the District was expanded to all waters of the United States and adjacent wetlands. [Emphasis add.] Subsequently, however, by memorandum dated May 17, 1978, the United States Army Corps of Engineers determined that it did not have jurisdiction over Respondent's activities for the following reasons: In the northeast and eastern portion of the tract the flagponds and saw grass prairies are isolated with no discernible drainage sloughs or patterns. The other area of concern, in the south west sector, contains isolated ponds and an old man-made drainage canal that comprises shallow, intermittent potholes above the natural headwaters of Ash and Gore Sloughs. There was no recognizable flow in any part of the canal and the point at which average annual flow appear to be 5 c.f.s. or greater is located to the south a considerable distance from the subject tract. The project, as proposed, will not destroy or threaten any endangered species or their habitat nor adversely impact water quality of the ultimate receiving waters in Kissimmee River and Lake Okeechobee. In 1971, the Soil Conservation Service of the United States Department of Agriculture classified Ash and Gore Sloughs, as well as Fish Slough, to which Company Slough is alleged by DER to connect, as "intermittent". This determination is supported by hydrological data compiled by the South Florida Water Management District which shows no net flow in Chandler Slough for as many as six months in 1975 and four months in 1976. In the South Florida Water Management District report concerning flow patterns in Chandler Slough, it was pointed out that: The climate in this portion of Florida is subtropical with warm summers and moderate winters. Rainfall is seasonal with about 75 percent of the total occur- ring in a well-defined wet season, from May to October. This distribution of rainfall results in considerable surface water flow during part of the year. During the late winter and early spring many of the creeks and sloughs, such as Chandler Slough, become completely dry. [Emphasis added.] In addition, testimony in the record in this proceeding establishes that on at least one occasion during the time in which construction on the property was being conducted, Company Slough was completely dry. There is no data in the record quantifying the annual flow of water from Ash and Gore Sloughs into Chandler Slough. Further, there is no evidence concerning the periodicity of any such water exchanges between Ash and Gore Sloughs and Chandler Slough. As indicated above, the evidence establishes that Chandler Slough, which is the larger collector slough into which both Ash and Gore sloughs allegedly discharge, periodically becomes "completely dry." DER witnesses testified that they had observed contiguous areas of standing water in Ash, Gore and Company Sloughs during visits to the site, and had also determined the existence of an exchange of waters between Ash, Gore and Company Sloughs with other sloughs connecting to Chandler Slough by analyzing aerial photographs. However, those aerial photographs were not made a part of the record in this proceeding. Additionally, the relatively few visits to the site by these witnesses, in the absence of validly derived data establishing pertinent flow rates, is insufficient to establish "normal" conditions in the area. This is especially true in light of the aforementioned countervailing determinations based upon data compiled by the United States Army Corps of Engineers, the United States Department of Agriculture and the South Florida Water Management District. The evidence shows that some of the types of vegetation listed in DER's vegetation indices by which DER determines whether areas are "submerged lands" or "transitional zones" of submerged lands have been found on the project site. Among the types of vegetation observed in and around Ash, Gore and Company Sloughs are maidencane, water willow, pickerelweed, button bush, saw grass and St. John's wort. Although these species were detected in some locations by visual observation, apparently no attempt was made to quantify these plants vis-a-vis other vegetative types, nor were any physical measurements made to locate their boundaries. In a report dated August 26, 1977, the SFWMD attempted to identify the acreage, but not boundaries, of wetlands on the development site. The findings of that report show that approximately 2,014 of 14,080 acres, or 14.3 percent of the total site, contains wetlands vegetation. The report also indicates that the wetlands vegetation is scattered in different locations over the site, with the median occurrence being 68 acres per 640-acre section. DER presented quantified evidence showing turbidity readings in the Ash Slough area of the development during the construction of swales in August, 1979, of 325 Jackson Units and November and December, 1979, of 155 and 176 Jackson Units, respectively. It should be noted that these readings were performed after the filing of the Notice of Violation herein. Although samples of August 6, 1979, were taken without a background sample in Ash Slough, the evidence establishes that background readings in Ash Slough were less than 25 Jackson Units. The evidence clearly establishes that DER's water quality sampling and analysis were conducted in accordance with applicable requirements of Chapter 17, Florida Administrative Code. The evidence establishes that these readings are attributable to construction of swales and control structures and would not be expected to continue after completion of construction. There is no evidence to show the duration of the discharges resulting in these turbidity readings, nor is there any showing of actual damage to animal, plant or aquatic life. Petitioner and Respondent have submitted proposed findings of fact in this proceeding. To the extent that those findings of fact are not adopted in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
Findings Of Fact The Department of Environmental Regulation (hereinafter "DER") issued a letter of "intent to issue" a permit based upon an application submitted by Respondent John H. Voorhees for a weedgate and associated fences to be placed at the mouth of the Hollerich Subdivision canal in Big Pine Key, Monroe County, Florida. The majority of owners of lots in the Hollerich Subdivision are in favor of the gate. The Hollerich Subdivision canal is approximately 1,200 feet long. it is an east-west dead-end canal with its mouth facing east. Floating seaweeds, grasses and detritus (a/k/a wrack are blown into the canal by the prevailing east and southeast winds. Although some surface wrack may blow back out of the canal with the occasional west wind, the sunken weeds will not. The accumulation of windblown wrack results in a stench caused by hydrogen sulfide gas from rotting weeds. The odor causes nausea, sore throats, and sneezing. Water quality tests of dissolved oxygen (DO) taken both in April 1985 and in November 1986 show the water in the canal to be below state standards. The low DO levels found in the canal are primarily due to the rotting weeds although the nutrients leaching from the surrounding yards also contribute to those low levels. The area outside the canal is better able to diffuse and absorb the wrack problem than the area inside the carnal. Accumulations of wrack outside the canal are more temporary and therefore produce less navigational difficulty and less deterioration of water quality. The navigational problems caused by weeds choking the canal range from difficulty in steering to poor visibility. The decaying wrack also causes growth on boat bottoms, can damage boat cooling systems, and turns the water in the canal red. The amount of wrack entering the canal and accumulating there has been increasing over the last five years. The proposed structure will stop wrack from entering the canal and will function as a weedgate. The design of the gate will not cause any navigational hazards, although the weedgate should have navigational aids to assure safety. Although the weedgate will not improve water quality in the canal so as to meet state standards, it will result in an improvement. DER has no jurisdiction to resolve property disputes. The proposed weedgate is to be placed in front of the canal with no on-land attachments, and Respondent Voorhees has given reasonable assurances that the proposed gate is not on privately owned property. The proposed structure will be placed in Class III Outstanding Florida Waters. DER has balanced the positive public interest effects that will accrue to the owners of property along the canal against the' negative public interest effects that may accrue to owners of property at the mouth of the canal. Respondent Voorhees has given reasonable assurances that the project will be clearly in the public interest. Respondent Voorhees has given reasonable assurances that the proposed project will meet all applicable DER rules and standards.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered (1), granting Respondent Voorhees' permit application and (2), authorizing the issuance of a permit subject to all permit conditions contained in the Department's letter of Intent to Issue the permit and also including the condition that no trespassing occur on the property at the mouth of the canal attendant to either the construction or the maintenance of the weedgate and associated fences. DONE and RECOMMENDED this 17th day of February, 1987, at Tallahassee, 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 17th day of February, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 86-0599, 86-0600, 86-0601, 86-0954, and 86-0955 l. Respondent Department of Environmental Regulation's proposed findings of fact numbered 1-5, 9, 10, 12-15, 17-20, the first and last sentences of 21, 23, 28, and 29 have been adopted in this Recommended Order either verbatim or in substance. The remainder of the Department's proposed findings have been rejected as follows: 6-8, 11 and 16, as being unnecessary for determination herein; the remainder of 21 and 22 as being immaterial to the issues herein; and 24-27 as being subordinate. 2. Respondent Voorhees' proposed findings of fact numbered l, 3, 8, and 13 have been adopted in this Recommended Order. The remainder of Voorhees' proposed findings of fact have been rejected as follows: 2 and 16 as being subordinate; 9 and 10 as being unnecessary; and 11, 12, 14 and 15 as not being supported by the evidence in this cause. COPIES FURNISHED: Douglas H. MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 John H. Voorhees Route 1, Box 612 F Big Pine Key, Florida 33043 H. Ray Allen, Esquire 618 Whitehead Street Key West, Florida 33040 Dale Twachtmann Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The matters here presented concern the challenges by the named Petitioners to Rule Sections 17-3.061(2)(b), 17-3.111 (11), 17-3.121(14), 17-4.02(17),(19), and 17-4.28(2), Florida Administrative Code, related to definitions of "submerged lands" and "transitional zone of a submerged land" and the requirements set forth by rule provisions for permits related to dredge and fill activities in "submerged lands" and in the "transitional zone of submerged land" and water quality in Florida. The rule challenges are in keeping with the provisions of Section 120.56, Florida Statutes. Specifically, Petitioners claim that the rules are invalid exercises of delegated legislative authority. The Petitioners do not, by the challenges, question the procedures utilized in the promulgation of the subject rule provisions.
Findings Of Fact Petitioner, Baker Cut Point Company, is a corporation which owns real estate in Key Largo, Florida, and James C. Dougherty owns the company. The Respondent, State of Florida, Department of Environmental Regulation, is a governmental body which has been granted certain regulatory powers, to include the responsibility for requiring environmental permits for certain activities over which the Respondent has jurisdiction. In furtherance of that responsibility, the Respondent has promulgated the aforementioned rules which are the subject of this rules challenge case. The Petitioners have been subjected to the terms and conditions of the aforementioned rule provisions in the course of their application for environmental permits for developments in property in Key Largo, Florida, under DER File Nos. 44-21381 and 44-14356. Those matters were the subject of a Subsection 120.57(1), Florida Statutes, hearing in Division of Administrative Hearings' Cases Nos. 80-760 and 80-1055. The hearings in those cases were conducted on the dates described in this order and were held in view of the disputed material facts between the parties occasioned by the Respondent's stated intention to deny the permits based upon the Respondent's belief that the activities contemplated within the permit process would be in violation of certain regulatory provisions, to include those rule provisions which are the subject of this action. Throughout the process of permit review and the hearing de novo, and in response to the revisions to the original permit requests, the Respondent has continued to claim jurisdiction in keeping with the rule provisions at issue. The Baker Cut Point Company DER File No. 44-14356 letter of intent to deny dates from April 3, 1980, and the corresponding letter of intent to deny related to DER File No. 44-21381, James C. Dougherty, dates from May 27, 1980.
Findings Of Fact Petitioner, the Association, represents 1,053 condominium homeowners located in the Old Port Cove Community, a residential development in Palm Beach County, Florida. Old Port Cove Community consists of seven separate condominium buildings and associations. Many of the individual condominium homes/apartments within the complex border on arid overlook the Old Port Cove area of north Lake Worth which is the location of the two existing marinas operated by the Respondent Applicant and the site of the proposed marina expansion. The water in question is an essential part of the residential community and was, in many cases, a major factor considered by the homeowners purchasing in this community. At the time of development, going back a minimum of seven years, property owners were advised by the developer/Applicant (or its predecessor) that the marinas constructed or to be constructed would be for the exclusive use of the residents of the condominium apartment houses within the complex. On or about March 12, 1986, Respondent DER, received an application from the Applicant for a dredge and fill permit for the construction of a commercial addition to the northernmost marina currently existing at Old Port Cove Complex. The new construction was to consist of 1 pier of a total length of 911 feet with 50 boat slips and 26 finger piers. The new slips will be 45 feet in length of which 15 feet will consist of pier and the remaining 30 feet of open water terminated by a piling. The main pier would extend in a northeast direction from the easternmost point of the existing north pier for a total of 171 feet, then turn northwest for a total of 490 feet, and then turn southwest for an additional 250 feet to enclose an area of water leaving a 90 foot wide space for entry of boats into the enclosed area. The application for the permit contains as an attachment thereto an engineering drawing depicting the proposed marina expansion and its relationship to the existing marina. This expansion was proposed because of the growing need for boat slips in the area. The operator, currently providing a total of 289 slips in both marinas, (197 in the south and 92 in the north) proposes to construct 50 new slips for pleasure boats from 25 to 120 feet in length. Applicant proposes and commits itself to utilize the new slips for sailboats only. Notwithstanding the fact that there are approximately 1,261 additional slips available within a one mile area of the proposed site, the applicant contends it has been continuously turning away applicants for slip rentals in its facilities. If approved, the proposed new facility will constitute an approximate 4 percent increase in the total number of boat slips in the area, not counting the free moorings offshore in the Federal mooring in the center of the cove. Applicant presently operates one diesel fuel pump at the South Marina. No other fueling facilities exist at either marina operated by Applicant nor are any additional fueling facilities intended. Applicant has also entered into a contract with a local fuel spill control company to provide spill cleanup if necessary. At the present time, there are no pump-out stations for sewage at either the North or South Marina. Applicant proposes to install sewage facilities as a part of the approval package. Leasing agreements currently in effect require all boats using the marinas to certify they have U.S. Coast Guard approved heads on board before being allowed to dock at the marina. This requirement is not actively enforced, however. Most boats utilizing the facility are pleasure/non-commercial fishing boats. Individuals, mainly residents of the apartment complex, use the docks for fishing but there is some question as to the nature and availability of the fish population in the area. Manatees do frequent the area, however, not necessarily as far north as the marina in any great numbers, but several hundred yards to the south, congregating at times around the entrance to the intracoastal waterway which forks off to the northwest somewhat south of the south marina. Subsequent to the receipt of the Association's Petition herein, DER had numerous water quality tests performed and requested certain assurances from the Applicant designed to remedy or rectify numerous objections made by the Association in its Petition. Thereafter, on February 16, 1987, DER issued a Revised Intent to Issue in this case in which it addressed the Association's concerns and specified certain conditions to be included in the permit to protect the water quality and biological resources in the project area. These conditions included: A prohibition against commencement of any excavation or other construction activity prior to receipt of evidence of permission from the Trustees of the Internal Improvement Trust Fund or DNR; A requirement for notification of the Division of Archives in the event any historical or archaeological artifacts are discovered within the project site; Provision for permanent sewage pump-out facilities to be provided at the south marina to replace portable facilities currently available, within 90 days of permit issuance, and the provision of temporary sewage pump-out facilities at the north marina which shall be in place and functioning prior to any work being commenced under the permit; The requirement for use of turbidity screens around the project site during construction to remain in place until turbidity behind. The screens falls to an acceptable level; The placing of educational signs, the content of which shall be coordinated with DNR, at both the north and south marinas, informing boaters that manatee may be in the area and requesting that care be taken; The posting of manatee warning signs in both marinas; The establishment of idle speed and no wake zones in both marinas and the access channels; A provision that permanent liveaboards connect their vessels with permanent sewage hook-ups at all times when the vessel is docked; and A provision against refueling facilities at the expanded north marina. Applicant and DER are satisfied that the conditions imposed by the terms of the Revised Intent to Issue satisfy all the current requirements of the statute and rules relevant to dredge and fill permits for projects of this nature. Many of the apartment owners, banding together as the Petitioner Association herein, strongly resist approval of the permit to construct the new marina for numerous reasons. They contend, first, that the construction of the new marina and the greater number of boats resulting therefrom, constitute a threat to the manatee population in the area. The Association is also concerned with water quality in the area, fire safety, wake damage, and noise pollution as a result of the proposal. Other considerations of the residents include parking and a diminishment in the resale value of their property. Several of the residents have seen manatee in the area swimming in the waters adjacent to the marina and in the "key" area on the other side of the peninsula. Many have scars on them and appear to have been injured by collisions with boats. Several residents have seen trash and debris in the water and have observed boats traveling at a high rate of speed just outside the existing marinas. In addition to debris, residents have seen oil and grease floating on the water and contend that the proposed wave baffles hanging down into the water from the extended pier will interfere with the natural flushing action of the winds and tides. Many of these same individuals complain of an extremely bad odor coming from the marina and they have observed boat owners either pumping their bilges directly into the marina water or washing their boats with detergents which are allowed to run overboard into the water. At least one resident, speaking for others as well, referred to a green space, an area of grass outside and between the buildings and the water. Originally, this area was supposed to be gardens and a recreational area for the residential complex, and the yacht club was to be a secondary appurtenance for the property owners. Now, with apartment owners making up no more than 10 percent of the occupants of the marina slips, for it seems as though the apartment residence owners are being shunted to the background and commercial activities, including the marina, are becoming paramount in the eyes of the applicant which still operates it. This green space is now proposed to be converted by the applicant to parking for the use of the marina patrons; all to the detriment of the apartment owners. There is some evidence that boat owners utilize the grounds of the apartment complex as a place to walk their dogs for canine toilet purposes and there is some evidence that numerous liveaboard boat owners, who do not have adequate toilet and bathing facilities on board their boats, utilize the pool, showers, and toilets ordinarily reserved for residents of the apartment complex. Noise from parties on the boats is often both excessive and disturbing and to the knowledge of at least some of those testifying on behalf of the Association, efforts by security personnel employed by the condominium associations to get the boat owners to curb the noise and disruption have been totally unsuccessful. One resident summed up the feelings of his co-owners when he indicated that these various factors translate to property value and because of the current situation with pollution, noise, lack of security, and the increasing commercialism, the result has been a substantial drop in property value. This witness feels that the more slips that are made available, along with their related annoyances, the less the value of the individual apartments will be. All feel that the addition of 50 more slips will increase the existing problems and none of the residents who testified for the association were of the opinion that the developer's controls will be adequate to alleviate or minimize the untenable situation which they now face. However, there was no evidence presented to substantiate the layman opinion of reduction in property value and it cannot be said, therefore, that this has or will really happen, and the amount of loss. Turning to the issue of water quality as effected by refueling operations and sewage disposal at the marina, the question of fueling facilities was not raised by the Association other than to object basically because of the potential for fuel spills. Applicant and DER contend that this problem should be taken care of through the contracting for the services of Glasgow Equipment Service, providing for 24 hour emergency response for fuel spills of any type. It is unreasonable to expect that a marina providing dockage for potentially as many as 289 motor vessels can be expected to be totally spill free. If proper refueling procedures are followed, and there is no evidence to indicate that they would not be, the incidence of fuel spills should be minimal and the contract with the clean-up service providing for around the clock response in case of a spill, appears to be adequate action to remedy the effects of any spill. There have been very few fuel spills in the history of the marina operation. The most recent resulted in a spill of no more than 3 to 5 gallons and clean-up was successfully accomplished with little damage. The Association made much of the fact that no disciplinary action was taken against the offender and that the boat in question is still an occupant of the marina. This incident is still under investigation, however, and final action has not yet been taken. At the current time, there are no pump-out stations for sewage at either the north or south marina. The applicants propose to install a pump-out sewage facility tied to each vessel berth in the south marina and to provide a portable pumpout facility which can be rolled to a particular spot to meet the needs of any vessel at the north marina. The Applicant has agreed to fund the project completely and has agreed to the special conditions contained in the Revised Intent to Issue regarding the pumping stations. Applicant and DER both arranged for testing of the water quality at the north marina to determine the current condition of the water. Dr. John D. Wang, an expert in coastal hydrodynamics on the faculty at the University of Miami, is familiar with the site of the proposed expansion and visited it last in November, 1986. At that time, he did a study on the flow exchange caused by tides and wind over a two day period. As a part of his test, he placed instruments in the water to take measurements of water motion, temperature, and salinity on the outer side of the current pier at the north marina and inside that marina at different depths. On the first day of the test, the tide was an ebb tide (receding) pulling water out of the marina area. However, at the same time, the wind was from the southeast which directly opposed the tide action. At the surface, the drogues (instruments) followed the wind. Those deeper in the water went with the tide. When the tide came in the next day, the drogues went to the north under the power of both wind and tide. Dr. Wang's experiment confirmed not only that the water moved in and out of the marina area, but also that the water circulated clockwise north along the west side of Lake Worth and south on eastern side. Dr. Wang thought this might be due to wind force, but regardless of the cause, it was a good indication that water was exchanged in the area. Dr. Wang concluded that the water in the marina was completely taken out within one hour and joined the circulatory pattern, being replaced by other water. The baffles placed on the piers to reduce wave motion will have some effect on the water circulation tending to reduce surface flow, but these baffles will not prevent the exchange of water due to circulation because they are limited to the top three feet of the water. In Dr. Wang's opinion, they may have some positive effect on circulation by preventing wave water from flowing back out. By the same token, the presence of boats in the marina will have but a marginal effect on water exchange. The draft of the boats utilizing this area is not much more than the wave baffles and there will still be ample water underneath to permit flow and exchange. In fact, in Dr. Wang's opinion, the location of this marina is almost optimal. By virtue of the fact that it is out in the open, water can flow freely through the area and no dredging is required. The flat, sloping bottom promotes water exchange. No evidence was presented to contradict this opinion and it is hereby accepted. Additional tests on water quality were run by Dr. Paul R. McGinnes, head of an independent consultant laboratory specializing in water quality and motion who visited the site several times doing three separate studies of dissolved oxygen, salinity, and water temperature at various depths and at different hours. As a part of his examinations, he also looked for oil (pollutants), and bacterial components. The water subject to tests for bacterial components was taken from the top foot at several locations in each of the three studies. In the 1983 study, tests showed fecal and coliform bacteria were present in sufficient quantities to constitute a few violations. In 1986, when he sampled for fecal bacteria only, the count was very low. In the 1987 test of samples taken twenty times over 24 hours, the fecal bacteria count was, in each case, within state limits. As to heavy metals, in 1983, levels of lead, cadmium, mercury, and zinc were not present. There was no evidence as to current levels. As to oils and greases, all studies showed very little present (below 5mg per litre) and what grease was there could consist of animal or vegetable fats. This is considered unlikely and it is found there is petroleum product in the water, though in insignificant quantities. Regarding dissolved oxygen, all tests showed compliance with state standards. Levels were comparable to other areas of Lake Worth. Dr. McGinnes is generally familiar with the state standards for Class III waters and believes the construction and operation of the new 50 slips at the north marina will in no way result in violation of state water quality standards. His opinion as to this construction is based on his tests, his conversations with applicant's personnel, and his experience with other similar projects. Granted, boats do tend to leak oil and that situation will raise the oil level in the immediate area of the leak. However, not all boats leak in all marinas and what leaks there are will tend to dissipate to a safe level within a very short period of time. In February, 1983, the coliform bacteria in the south marina were higher than in the north marina or in Lake forth in general. However, coliform bacteria does not appear to be a major problem in this case. In response to cross examination, Dr. McGinnes concluded that even if five boats dumped raw sewage in the north marina, it would not have any major negative impact on the overall water quality there. It would, of course, affect the sample taken in the area immediately after dumping, but not the overall quality over the long run. Dr. McGinnes' last sample was taken in February, 1987, which is a time of highest use. The water quality in and around the marina is generally as good as in the northern end of Lake Worth which is better than in the southern end of the lake. His examination of the water quality indicated no recognized violations of Florida water quality standards in the last two reports. The association's expert, Mr. Timmer, went to Old Port Cove in January, 1987 and saw numerous boats in the slips. He looked for inlets opening into the marine and for a bird population, either one of which could cause an increase in undesirable bacteria in the area. He found none. He took water samples for testing to see if the fecal coliform bacteria level in the marina was higher than outside it. During his tests, he took samples from 14 sites at three separate depths at each. His samples were duplicated for safety in case any one sample was compromised. Six of his samples were taken inside the dock area of the north marina; one was taken to the north several thousand yards; and four more were taken outside the area of the proposed marina. One was taken in the federal anchorage; several across the cove on the east side of the lake and one outside the cove, south of the Intracoastal Waterway inlet and west of the channel. The furthest test site was approximately one mile from the marina. When Mr. Timmer got his samples, he isolated the sets from each other; "refrigerated" them (placing them in a cooler without any ice), and upon completion of his sampling, took them to the McGinnes lab where analyses were done for fecal coliform bacteria. As a result of his tests, and relying on the report received from McGinnes Laboratories, Mr. Timmer concluded that the fecal coliform level within the marina was higher than outside the marina by 5 to 10 times. Surface samples, he felt, averaged out in excess of what he considered to be the state standard. Some of the lower level samples were high also. In no case, however, did any sample exceed a count of 15 outside the marina. Coliform standards, according to state rules, are to be averaged over a month's period of taking. In fact, the report received from the McGinnes lab concluded that because testing was not done over a month's period, the standard was not exceeded. These samples, even that one reflecting a reading of 560 bacteria per 100 ml at site 3a, did not come anywhere near the upper limits of the state standard and in fact was well within it. Mr. Churchill, a zoologist and ecologist and expert in marine biology made various studies of the benthic communities and fish population in the area of the proposed construction. He studied the soft bottom communities and took samples of the bottom in different areas both inside and outside the current marina and in the area where the extension is proposed. He found that the outside and the outer inside communities were much the same and had a low number of species. The inner inside was considerably different. It had a higher number of both species and individuals. A larger number is a better system and DER rules provide that one cannot build a project which would tend to reduce the number. Here, since the area where the construction is planned is outside the area of high species count and similar to the rest of the cove area, the construction would most likely not violate the state's rule. In fact, in Mr. Churchill's opinion, concurred in by other experts, the proposed project will, rather than negatively impact the environment for wildlife, enhance it by providing additional habitat. The pilings, forming supports for the piers and ties for the boats will provided habitat for small marine life which in turn provide food for larger life which is attracted. This testimony would tend to contradict the testimony of at least one of the residents who indicated that in his experience, the fish population in the area had declined radically over the years since he moved in and that about all one can catch in the immediate area now are some small sheepshead. This is in comparison to the larger variety and size of fish available to the angler several years in the past. No doubt, the fish selection and availability has diminished since the area was developed, but the question is whether the new construction will aggravate that situation and the answer appears to be that it will not. An additional water quality study was conducted by Dr. Martin Roessler, a marine scientist who did a water quality study in the area consistent with that done by Dr. McGinnes. He also did several of his own on- site inspections as to water clarity and marine plant and other life including reptiles and birds in the area. On his third visit to the site, he took water quality samples for testing for bacteria and other marine life. As a result of his tests, he concluded that water quality in the area should not be diminished by construction of the marina. During construction, the use of turbidity curtains and booms will tend to keep any temporary disruption to a minimum. He agrees with Dr. McGinnes and Mr. Churchill that the nature of marine life within the area should not be disturbed by the construction. He was unable to observe any sea grasses in the area (they are on the other side of the cove and not where he observed) and dredging would not be involved; only the driving of pilings which will disrupt the bottom only in the immediate area of the piling. Dr. Roessler's credibility was not damaged by the Association's evidence that a previous study done for another agency was rejected and he was not paid for the work done. There was insufficient evidence of detail and a broad-brush smear can not be held effective here. When Old Port Cove submitted it's application for its permit, it included the original draft and all requested information in a final product. This project documentation was evaluated by Ms. Janet Llewellyn, a supervisor with DER, who is an individual fully conversant and familiar with the dredge and fill rules and standards set forth in the statutes and the F.A.C. As to water quality, Ms. Llewellyn analyzed the information submitted by the applicant in response to her request for water samples at certain locations she had identified. These samples showed no current violation of the rules governing dissolved oxygen and fecal or coliform bacteria even with the boats that are currently in the marina. DER also requested "hydrographic information as a part of the reasonable assurance" test and this information was to deal with existing water quality and the flushing action of the tides and winds. Ms. Llewellyn has visited the site, albeit only shortly before the hearing, and as a result believes that the drawings submitted with the permit application are correct and represent the work to be done accurately. Recognizing that the field inspection report submitted by on-scene local DER personnel is somewhat negative in its evaluation of the project, she nonetheless disagrees with certain portions of this report which say that boats and piers will interfere with the flushing action of the wind and tide. She also disagrees with the statement that oil and grease will continue to degrade water quality. She feels that the inspector who did the report did not have available to him the hydrographic and water quality tests that she had. This information, submitted somewhat earlier, was sent to Tallahassee by the experts and was not forwarded to the field representative when the request for the survey was laid on. The Revised Intent to Issue, including as it does, the additional requirements laid on the applicant in such areas as sewage pump-out, liveaboards, fueling facility prohibitions, and the like came about as a result of misunderstandings between DER and the applicant and culminated in the applicant agreeing to try to ameliorate the situation and the issuance of the permit by compromise as suggested. DER is satisfied with the proposals contained in the Revised Intent to Issue and feels that approval of this permit will upgrade the facilities at the south marina as well as insure compliance with state water quality standards at the north marina. Together it will result in an upgrade in the water quality in the area. Ms. Llewellyn is convinced that there will be no negative effects on the water quality by the construction at the north marina and that the criteria contained in both the statutes and the rules, from an environmental standpoint, will not be violated. DER has no authority to consider other factors which appear to be among the most substantial complaints of the association members. She did not consider the possibility of damage to the scenic view by the addition because she did not consider it to be an issue. In her opinion, the question of damage to the property of others relates to damage to structure, property, wildlife, etc., and the impacts to these would be negligible. What she considers important is that the permit involved here is for construction, not operation of the marina and enforcement of continuing operational rules is another consideration entirely. When using the term "assurance" as a requirement for an applicant, the assurance required is not that the new slips will have no adverse impact, but that any adverse impact will not reduce the water quality below standards set out in the statutes and rules. Though not envisioned, water quality can be reduced from very high quality to high quality (a reduction in quality) and still be within standards. Additional scientific examination of the water and the immediate site was conducted by Dr. Kenneth L. Echternacht, a hydrographic engineer, physicist, and physical water quality expert with DER who reviewed the hydrographic study submitted with the application. He found that the drogue study showed water speeds of between .05 to .1 feet per second which was typical of the area. The placing of drogues and the resultant study and conclusions was not flawed by the lack of education of the individual who did the placing at the direction of the scientist. What is important is the education and knowledge of the supervising scientist who will take the information gathered and examine it. Considering that prevailing winds in this area during daylight hours are from the sea to the land, (SE to M), and at night the reverse occurs, any study made only during daylight or during nighttime would be flawed to the extent that it would examine only one part of the equation. Given the baseline information available to him, Dr. Echternacht concluded the project as described would not adversely effect water quality from a hydrographic standpoint. Flushing and circulation are important to water quality. If the water does not move, the pollutants added by outside factors, (here boats), accumulate and build up. On the other hand, the faster the water moves, mixed with turbulence, the faster the pollutant is disbursed and prevented from accumulating. At .05 f/sec, a particle of water would move 180 feet per hour. As a result, water will move the length of the marina, (450') in 2 1/2 hours. Therefore, if a spill occurred at the south boundary during an incoming tide, it would move to the north boundary of the marina within 2 1/2 hours and given a tide cycle of 6 1/2 hours, would still have 3 1/2 to 4 hours to move even further away, mix with other water, and be disbursed before being brought back to the marina by the outgoing tide. (However, there is evidence that the water moves in a clockwise direction and the likelihood is great that the contaminated water would not even come back to the marina but would head out down the eastern side of the cove.) This is a worst case situation because of the slow water movement rate utilized and it is, itself, a relatively fast movement. Admittedly, this water movement will be affected by obstacles in the water such as boat hulls, posts, pilings, and baffles. However, while these factors would slow up the water, they would also create turbulence and vortices in the water which, themselves, help mixing. From a practical standpoint, other factors are involved such as the size of the obstacle, etc. Here we are faced with a situation where the marina is not enclosed and the water flows freely. The water quality can be expected to be better than in an enclosed marina and even better in the new area than in the existing areas because it will be further away from the seawall. Taken together, in light of the evidence presented by both sides, it is found that a diminishment in water quality as a result of the construction of the proposed facility here would be minimal and would in no case, likely result in a reduction of the water quality to a level below that considered acceptable in the state statutes and rules. In addition to water quality, the residents were concerned about the threat of injury to the manatee population which, while not appearing in the immediate area of the proposed construction on a regular basis, does visit the area periodically. In addition, there is substantial evidence to establish that boats coming into and out of the marina, going down through the channel into the main part of Lake Worth and out through the cut, would pass through areas actively populated and visited by manatees and therefore, the opening of 50 additional slips for new boats, even in this less populated area, could have a substantial impact on the manatee population. There is no doubt that manatees do visit the area. There are sea grasses, if not in the immediate area of the proposed marina, certainly on the opposite shore of the north part of Lake Worth. It is uncontroverted as well that manatees have been seen near the marina and in the key area on the other side of the peninsula. However, the evidence introduced by the association's own witnesses, Mr. Rose and Dr. Odell, indicates that the manatee population tends to congregate in areas south of the entrance to the Intracoastal Waterway which, itself, is south of the Old Port Cove area. Many manatee congregate in the warm waters produced by the Riviera Beach power plant in the southern part of Lake Worth and go from there to other areas within the Lake Worth area to feed, even as far north as Hobe Sound and Loxahatchee. Generally, there are not enough sea grasses in the local area to keep them there. Manatees can range up to 12 feet in length and up to 3500 pounds in weight. Manatee deaths in Palm Beach County, of which boat deaths account for approximately 50 percent, are a serious danger to the survival of the manatee population. The greatest danger to manatees comes from power boats. While there is no evidence that sailboats are dangerous since they move slowly enough for the manatee normally to evade then, there nonetheless may be some danger as a result of their presence. Some manatees are crushed by barges and larger power boats. Some are killed by impact with medium and larger boats. In approximately 40 percent of the cases, impact kills without propeller injuries and it is hard to tell the size of the boat which did the damage. As to propeller deaths, boats from 24 feet up can kill by this method. The number of manatee deaths has increased lately as a result of boat and other man related causes and if this trend continues, the manatee population will decline and, possibly, become extinct. Mr. Rose, who is quite familiar with the habits of the manatee in this area, states that it is most likely that in traveling north to Hobe Sound and environs, the manatee would travel up the Intracoastal Waterway (the entrance to which is south of the proposed construction) and not go into the Old Port Cove area. Even if they were following the grass which runs along the east and north shores of Old Port Cove, the grass does not grow on the marina side and it is unlikely the manatees would come to the marina in the west to feed though they might come for other reasons and in fact have been seen in the "key" area. Dr. Odell, perhaps the foremost authority on manatees in the United States, has visited the area and, at this hearing, heard the testimony of the other witnesses. He contends that because of the food available in the form of sea grasses and mangrove seeds, primarily on the eastern side of the cove, the likelihood is that manatees would be found in that area. This is consistent with the testimony of Mr. Rose. Consequently, it is found that while manatees come to the area of the proposed marina from time to time, it is more the stray manatee than evidence of continued habitat. Dr. Odell's studies indicate that between 1974 and 1985, there were no manatee deaths recorded in north Lake Worth. However, it is possible that the dead manatee found elsewhere may have been injured or even died elsewhere, (possibly near Old Port Cove) and there well may have been others who were injured in the area who went elsewhere to die. There is, however, no evidence that this is the case. Dr. Odell considers that boats with a draft of between 5 and 7 feet would leave little clearance from the bottom in the bottleneck area south of the marina where the water depth is no more than 9 or 10 feet, to allow room for the manatee to avoid them. In fact, he feels that large, inboard powered boats pose the greatest threat to the manatee. While sailboats generally do not create a risk to the mammal, if the new 50 slips were to be limited to sailboats but all existing slips were to be converted to power boats, this would constitute a severe threat to the manatee population. Further, a change in use patterns, creating more traffic, would increase the risk to the manatee. The real issue is, however, how much time boats spend in manatee habitats. The more boats there are, the less desirable the situation. (Both experts agree, however that if the 50 new slips are limited to sailboats and the ratio of power boats to sailboats in the existing slips is not increased, there is really no legitimate reason, based on a threat to the manatee population, to deny this construction permit.) It would appear, then, that the risk to the manatee population is acceptable. Signs advising boaters to slow down and beware of manatee are good only so long as they promote awareness. There is, according to Dr. Odell, no evidence that they have reduced manatee mortality and given present trends of more power boats and the destruction of the manatee's habitat, one can expect the manatee population to decrease even further.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore: RECOMMENDED that the Department of Environmental Regulation issue a dredge and fill permit to the applicant to construct an additional 50 slips at its north marina as proposed. RECOMMENDED this 20th day of May, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1987. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.57(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties to this case. By Petitioner, Old Port Cove Property Owners Association: 1. Accepted except that the undersigned would quell at the right of an individual who wore 44 foot "boots." 2-7. Accepted. 8. Accepted except for the Finding that sea grasses grow as close as 50 feet to the north marina. 9-10. Accepted. The north marina contains 92 slips which includes 66. Other findings contained herein are accepted. Accepted. Accepted but more in the nature of argument than fact and qualified by the fact that new liveaboards must agree to connect to the proposed central sewage system. Accepted. Rejected as argument rather than Finding of Fact. Rejected as contrary to the weight of the evidence. 17-20. Accepted. 21. Rejected as contrary to the weight of the evidence as relates to the first sentence. Accepted as to the cited contents of the survey. 22-23. Accepted. 24. Rejected as not supported by the evidence. 25-26. Accepted. 27-37. Accepted. 38. Immaterial. By Respondent, Old Port Cove Properties, Limited: 1-7. Accepted. 8-11. Accepted. 12-19. Accepted. 16-19. Accepted as recitations of testimony presented. Rejected as to a shortage of marina slips, accepted as to the rest. Accepted. Accepted as argument. By Respondent, Department of Environmental Regulation: 23-25. Accepted. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel S. Rosenbaum, Esquire Suite 720 450 Australian Avenue South West Palm Beach, Florida 33409 Douglas Wyckoff, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Robert A. Routa, Esquire Post Office Box 1386 213 South Adams Street Tallahassee, Florida 32302 =================================================================
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
