Findings Of Fact In 1950, Petitioner acquired lots 8 and 9, block 23, of Lone Palm Beach subdivision, third addition, which lots front on Boca Ciega Bay in Pinellas County, and she has held the property in free simple since. Petitioner's late husband, her predecessor in title, acquired the lots in 1941. They constitute the tip of man-made peninsula jutting bayward from a barrier island bordered on the other side by the Gulf of Mexico. In 1926, the lots did not exist as such, because the peninsula had not yet been built. Petitioner's exhibit No. 10. Since the creation of the lots, their aquatic periphery has varied continually, on account of accretion and reliction. In the first half of the last decade, wooden and metal stakes were sunk along the shoreline, landward of the water's edge. Since then, water has washed away Petitioner's beach, moving the shoreline inland an average distance of approximately thirty feet. Erosion has been more severe along the northern half of Petitioner's beach than along the southern half. Seawalls have been built along adjacent properties on either side of Petitioner's parcel. The evidence did not establish what proportion of this erosion may have been attributable to the effects of Hurricane Agnes or to the location of neighboring seawalls or to any other particular cause. In 1972, the Honorable C. Richard Leavengood, Petitioner's present husband, hired Rupert Osteen, a contractor, to build a seawall. Pinellas County issued a building permit to Mr. Osteen, covering a "Seawall - 356LF - Type D," Petitioner's Exhibit No. 5, on March 14, 1973. (In September of 1951, the Town of Redington Beach had issued a building permit for "Dredging and Filling behind Sea Wall Constructed on [what is now Petitioner's] Rear Property Line.") Construction began, but came to an abrupt halt in July of 1973, when Mr. Osteen was arrested for building a seawall "without having obtained the recommendation of the Chief of Engineers and the Authorization of the Secretary of the Army prior to beginning," a criminal offense of which he was subsequently convicted in the United States District Court for the Middle District of Florida. Respondent's Exhibit No. 4. Before work on the seawall stopped, Petitioner had caused some 4,500 cubic yards of fill dirt to be deposited on the lots. After Mr. Osteen's arrest, Petitioner applied for a fill permit to the Pinellas County Commission, sitting as the Pinellas County Water and Navigation Control Authority. The Authority granted the permit on March 19, 1974, on condition that the seawall be made to tie in with the existing seawall on lot 7, which adjoins Petitioner's property to the west. On or about August 16, 1974, Petitioner applied to the Department of the Army prior to beginning," a criminal offense of which he was subsequently convicted in the United State District Court for the Middle District of Florida. Respondent's Exhibit No. 4. Before work on the seawall stopped, Petitioner had caused some 4,500 cubic yards of fill dirt to be deposited on the lots. After Mr. Osteen's arrest, Petitioner applied for a fill permit to the Pinellas County Commission, sitting as the Pinellas County Water and Navigation Control Authority. The Authority granted the permit on March 19,1974, on condition that the seawall be made to tie in with the existing seawall on lot 7, which adjoins Petitioner's property to the west. On or about August 16, 1974, Petitioner applied to the Department of the Army for a permit, pursuant to Sections 403 and 1344 of Title 33, United States Code. Petitioner applied for the "after the fact" permit at issue in these proceedings on May 10, 1974. At one point in the course of negotiations between Petitioner and Respondent, Mr. Douglas Jones, Chief of Respondent's Bureau of Permitting, indicated that Respondent would permit Petitioner to erect another seawall along the present mean high water line. Eventually, Respondent's staff notified Petitioner that it would recommended denial of an after the fact permit for the existing seawall, and Petitioner filed a request for administrative hearing, which initiated these proceedings. Aerial photographs dating back to 1942 were received in evidence. Respondent's Exhibits Nos. 5 through 11. None of these phontographs show land as far out in the water as the portion of the seawall Mr. Osteen finished. The partially completed seawall is further waterward tan the 1971 interface between land and water. Respondent's Exhibits Nos. 9 and 10. In November of 1973, Alan J. Burdette, Jr., a marine biologist, who is now employed by Respondent, inspected lots 8 and 9 of Lone Palm Beach subdivision and found water in the low area landward of the seawall. More recent photographs indicate that the seawall still stands somewhat offshore. E.g.., Respondent's Exhibit No. 16, taken on September 7, 1977. Mr. Bardette's inspection revealed oyster and fiddler crabs inside the seawall and clams just outside. Mangroves, which were not there at the time construction began, had sprung up. Removal of the seawall would create additional shallow bottom where algae, clams, oysters, mangroves and other marine life could flourish. Mr. R. S. Murali, a hydorgraphic engineer employed by Respondent, visited Petitioner's property the day before the hearing in this matter was held. While he was on the site, the wind blew from the southwest and waves with an average height between eight and nine inches struck Petitioner's unfinished seawall every 1.2 seconds. Mr. Murali discovered evidence of erosion under the seawall, which was caused by wave action. If the seawall were placed more landward, so that waves travelled up a sloping beach before striking it, the erosion problem could be significantly alleviated.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That Petitioner's application for an after the fact fill permit authorizing the seawall which has already been constructed around lots 8 and 9, block 23, of Lone Palm Beach Subdivision, third addition, be denied. DONE and ENTERED this 30th day of November, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 904/488-9675 APPENDIX Paragraph one of Petitioner's Proposed Findings of Fact has been adopted, in substance, insofar as relevant:. Paragraph two of Petitioner's Proposed Findings of Fact has been adopted, in substance, insofar as relevant, except for the date of the permit issued by the Pinellas County Water and Navigation Control Authority, which is immaterial. Paragraph three of Petitioner's Proposed Findings of Fact is apparently predicated on Petitioner's Exhibit No. 12, an uncertified copy of page 74 of Pinellas County's Plat Book 20. Although a handwritten notation on the exhibit reads "Plat Recorded June 21, 1937" such extraneous handwriting on an uncertified copy is not "evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs.". Section 120.58(1)(a), Florida Statutes (1975). The question of the Butler Act's applicability is a question of law rather than of fact and it has not been necessary to decide the question. Paragraph four of Petitioner's Proposed Findings of Fact has not been adopted, for the most part, because of lack of support in the evidence. Paragraph five of Petitioner's Proposed Findings of fact emphasizes that the testimony as to flora and fauna related to a time considerably after application for the after the fact permit was made. While this is true, what is at issue is the ecological consequences of leaving the seawall, so that the relevant time period is the time period beginning when the application was made and extending indefinitely into the future. COPIES FURNISHED: Ms. Carol Haughey, Esq. Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building Tallahassee, Florida 32301 Mr. Ross H. Stanton, Jr., Esq. 280 Florida Federal Building 26274th Street North St. Petersburg, Florida 33704 Ms. Patricia M. Duryee, Esq. Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION DOROTHY B. LEAVENGOOD, Petitioner, vs. CASE NOS. 77-484 STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondents. /
The Issue The issue in this case is whether the development order issued by Polk County for Robert Crowder's development known as Paradise Country Estates complies with Chapter 380, Fla. Stat. (1991). The Department of Community Affairs' Petition for Appeal of Development Order (the DCA Petition) alleges that the development order is contrary to Polk County's 1985 comprehensive plan for the following reasons: Paragraph 11 of the DCA Petition alleges that the development order is contrary to the provisions of Policy 9, Objective III, "Natural Resources," of the Land Use Element (LUE) of the 1985 Plan. Policy 9 states: "Structures should be placed in a manner which will not adversely affect the natural flow regime and which will not reduce the recharge capabilities." Paragraph 12 of the DCA Petition alleges that the development order is contrary to the provisions of Policy 10, Objective III, "Natural Resources," of the LUE. Policy 10 states: "Placement of structures shall be consistent with sound flood plain management practices such as compliance with the Flood Disaster Protection Act of 1973." Paragraph 13 of the DCA Petition alleges that the development order is contrary to the provisions of Policy 11, Objective III, "Natural Resources," of the LUE and Policies 9 and 10 of the "Water Resource Objective" of the Conservation Element of the Plan. Respectively, these policies state: 11. Groundwater withdrawal should not exceed the safe yield per acre as determined by Water Management Districts or successor agencies. * * * Minimize the adverse impacts of development on resources of the Floridan Aquifer, wetlands and flood-detention areas. Protect the normal quantity, quality and flow of ground water and surface water which are necessary for the protection of resources of state and regional concern. Paragraph 14 of the DCA Petition alleges that the development order is contrary to a section of Part II of the Conservation Element of the Polk County Comprehensive Plan entitled "Rare and Unique Natural Resources," which describes the Green Swamp as a "rare and unique land area resource for conservation consideration" and also states: The potentiometric high of the Floridan Aquifer lies within this area. . . . The area has a high potential for recreational and natural enjoyment. . . . The Green Swamp area is the largest expanse of forest in Polk County, with abundant water and wooded areas to provide for wildlife habitats. This area has great significance as an area for conservation of land, air, water, open space and wildlife habitats. Paragraph 15 of the DCA Petition alleges that the development order is contrary to the following section on "Density" found in Part IV of the Conservation Element, entitled "Summary of Special Problems, Areas, Issues, and Relationships": The subject of development density is a particular issue of vital importance to the county. Low density development in some areas and high density in other areas is important so that demands for public facilities can be economically and efficiently handled, so that environmental degradation is minimized, and so that land, not suitable for development, can be saved for important natural functions. The present zoning ordinance classifies most of the county in a Rural Conservation (RC) classification that permits low density development without proper regard for those areas that are best suited for development. Portions of the county should be protected from development pressures and appropriate areas should be zoned to accommodate rational densities. The present level of protection, provided by the zoning system is not brought to bear for conservation purposes. Paragraph 16 of the DCA Petition alleges that the development order is contrary to Policy 14 of the "Water Resource Objective" of the Conservation Element of the Plan: "Protect or improve existing ground and surface-water quality." Paragraph 17 of the DCA Petition alleges that the development order is contrary to Policy 2, Objective I, "Agricultural Uses," in Part V of the LUE: Protect, to the maximum extent possible, agricultural lands from encroachment of incompatible land uses and any detrimental effects of development adjacent to agricultural areas. Paragraph 19 1/ of the DCA Petition alleges that the development order is contrary to Policy 2, Objective IV, "Residential Uses," in Part V of the LUE: Promote and encourage new residential development adjacent to established growth centers, to ensure the orderly use of land and the efficient provision of facilities and services. Paragraph 20 of the DCA Petition alleges that the development order is contrary to Section 5-1(6) of Polk County Ordinance 81-28 (the County Flood Protection and Surface Water Management Code). 2/ Article V is entitled "Flood Protection Standards." Section 5-1 provides in pertinent part: GENERAL STANDARDS: The following minimum standards shall apply to new construction and substantial improvements in all areas of special flood hazard, and to any development, other than phosphate mining, within 100 feet of a watercourse: * * * (6) On-site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding. Paragraph 21 of the DCA Petition alleges that the development order is contrary to Section 5-2(4) of Polk County Ordinance 81-28. 3/ Section 5-2 provides in pertinent part: SPECIFIC STANDARDS: The following minimum standards shall apply in all areas of special flood hazard where base flood elevation data has been provided: * * * Subdivision Proposals: All subdivision proposals and other proposed developments shall be reviewed by the County Engineer. [I]f the proposal is in an area of special flood hazard, it shall be reviewed to assure that the following standards are met: All such proposals shall be reasonably safe from flood waters resulting from the base flood. All such proposals shall have public utilities and facilities such as sewer, gas, electrical and water systems located and constructed to minimize flood damage. Base flood elevation data shall be provided for all such proposals. Roads shall be reasonably safe from flood waters resulting from the base flood. Paragraph 22 of the DCA Petition alleges that the development order is contrary to Section 6-2(3)(a) of Polk County Ordinance 81-28. Article VI of Polk County's Flood Protection and Surface Water Management Code is entitled "Water Management Standards." Section 6-2 provides in pertinent part: GENERAL STANDARDS: The following minimum standards shall apply to all development which occurs within an area of special flood hazard and to any man-made change to improved or unimproved real estate . . .. * * * (3) (a) The amount of site alteration within a wetlands soil association shall be limited to ten percent (10%) of the area of wetlands soil association within any given total site.
Findings Of Fact The Proposed Project and Location. The project site is on Dean Still Road in Polk County, approximately 2 miles west of State Road 33. It is approximately 6 and 1/2 miles from Polk City and 15 miles from the City of Lakeland. The proposed project is comprised of 356 lots on approximately 1280 acres with a gross density of 1 unit per 3.6 acres. Although the average lot size varies, the project was reviewed under the Southwest Florida Water Management District's (SWFWMD) criteria for rural development which requires that at least 90% of the lots be at least 2 acres in size (excluding jurisdictional wetlands), and 10% of the lots be at least 1 acre (excluding jurisdictional wetlands). The site has been zoned Rural Conservation under Polk County's Zoning Code for approximately 12 years. This designation allows a density up to 1 unit per acre. Individual water wells and on-site waste disposal systems (septic tanks) will be utilized for each home. There are no water or sewer extensions proposed for the site or for adjacent areas by any governmental entity. Access to the site from Polk City is along Dean Still Road, which is unpaved at this time. The County has plans to pave it in the near future. Of the 1280 acres comprising the project site, 362 acres have been claimed as jurisdictional wetlands and approximately 642 acres have been mapped within the 100-year floodplain by the Federal Emergency Management Agency (FEMA). 51 of the lots platted in the project are entirely within the FEMA 100- year flood plain. Several other lots contain large portions within FEMA 100- year flood plain. Despite the significant amount of wetlands and floodplains on the site, the project is designed so that no net loss will occur in the floodplains and less than 1% (.59%) of the jurisdictional wetlands will be impacted by development. Impervious conditions on the site will only increase by 2.8% after development. All structures will be set at or above the 100 year flood elevation, as calculated by the project engineers, and will be constructed in accordance with the County's flood protection standards. The project is designed so that post-development runoff is less than pre-development runoff and post-development drainage basins conform to pre-development drainage basins. Existing drainage patterns for the site are designed to be maintained. The property comprising the project has been used through the years for a variety agricultural purposes, including harvesting watermelons, soybeans, corn, and silage. It has been drained and ditched to facilitate these activities. It is currently being used for grazing cattle. A sod farm is located to the south of the property. Additional cattle grazing lands run south from there to Polk City. To the north of the site are ranchlands which run to the border of the Withlacoochee Wildlife Area. Immediately to the west of the site are 20-30 scattered mobile homes and additional ranchlands in a subdivision known as Evans Acres. This subdivision was initially approved by DCA in 1983, and was comprised of 48 lots on approximately 1,290 acres. The original lots ranged in size from 5 to 60 acres. Apparently, individuals have since split their lots and many of the existing lots are 2 to 5 acres in size. A few of the original lots are used for both residential and ranching purposes. Including the large and small lots, there are approximately 163 lots on the property comprising Evans Acres. On the property directly to the east of the site are approximately 16 mobile homes along Melody Lane. These existing homesite numbers are small and scattered when compared to the 356 lots proposed for Paradise Country Estates. Approximately 120 families live in the general vicinity of the proposed project. The Green Swamp. The project is within the Green Swamp Area of Critical State Concern (ACSC). The site is within the drainage basin of the Withlacoochee River, which has been designated an Outstanding Florida Water (OFW) and is approximately three and a half miles to the north. The Green Swamp ACSC was designated by the Legislature. Chapter 79- 73, 380.0551, Florida Statutes (1991). It was the second area to be designated and now is one of only four areas in the State retaining this designation. The Green Swamp was designated because the area's natural resources were considered to be of regional and statewide importance and because of concerns that uncoordinated development could endanger these resources. The Green Swamp is a regionally significant area for recharge of the Floridan Aquifer. The Green Swamp is unique because the top of the Floridan Aquifer is at or near the surface over much of the area. This creates what is known as the potentiometric high of the Floridan Aquifer. The potentiometric high pressurizes the Floridan Aquifer, permitting it to be used for drinking water wells. The Florida Aquifer serves as the principal source of drinking water for central Florida. It supplies the entire State with about 48 percent of its ground water supply. The potentiometric high also serves to hold back salt water intrusion into the Floridan. Recharge is important in maintaining the potentiometric high of the Floridan Aquifer. Although the Green Swamp has been characterized as a recharge area for the Floridan Aquifer, the actual recharge capabilities of the Green Swamp vary considerably throughout the region. Some areas within the Green Swamp, such as the high, dry, sandy ridge on the eastern boundary of the Green Swamp clearly are high recharge areas. In some areas, the Floridan Aquifer rises essentially to the ground surface, with no confining layer above it. In those areas, a considerable amount of surface water filters into the Floridan Aquifer. In other areas, including in the vicinity of the project site, recharge capability is considerably less. See "G. Review under the 1985 Plan and the Flood Protection and Surface Water Management Code, (3) Ground Water Recharge." The head waters of several rivers, including the Withlacoochee River, are in the Green Swamp. Polk County's Comprehensive Plan. Polk County's Comprehensive Plan, as amended by Polk County Ordinance 85-08 (Ordinance 85-08), is referred to as Polk County's 1985 comprehensive plan, or the 1985 plan. It includes a Land Use Element (LUE) and a Conservation Element. The Land Use Element. The 1985 Plan is a "policy plan." As a "policy plan," the LUE does not map land use classifications or densities or intensities of development. The different parts of the plan must be considered together to ascertain their meaning. As stated in the Foreward to the LUE: The Policy Plan is a flexible and realistic guide to future public decisions. Existing conditions are first determined and analyzed. Then, community goals are identified providing a process of finding out where we are and where we want to go. * * * . . .. The challenge is to determine the means of achieving the identified community goals at minimal cost and the least possible hardship on any segment of our society. Under the policies planning process this is accomplished by developing all possible alternative courses of action that will advance the community toward the desire goal. The policies are then a general statement of purpose and outlining broad principles toward which the plan is guided in the implementation stage. A policy plan does not detail specific actions or locations on a map. Rather it provides a broad framework within which day-to-day decisions are made in a consistent manner toward an identified goal. The ultimate product of those community goals will be the heritage of Polk County's future. At 4-2, the LUE discusses the need to give attention to "the proper distribution of population densities in keeping with sound planning practices, the physical capabilities of the land, and the relationship of the population and housing densities to existing or proposed transportation facilities and other community services." It then speaks to "Retention of Open Spaces": A second potential problem to be faced, as urban growth continues, is the potential loss of the open space characteristics that now contribute substantially to its desirability as a community in which to live and visit. To a large extent, the desirable characteristics are provided by extensive agricultural areas. Such uses are compatible with residential and other types of urban land uses and should be encouraged to remain to the maximum extent possible. Desirable open space is also presently provided by . . . wetland areas not suited for urban development. By encouraging such areas to remain in their present condition, a substantial amount of open space can be retained to provide the needed visual relief and openness necessary within a highly urbanized community. At 4-5, discussing "Retention of Unique Agricultural Lands," the LUE states that cattle raising and field crops are subject to potential intrusion by urban development and states: "The development of planning techniques, which will encourage the retention of important agricultural lands and provide for orderly urban development, thus becomes a matter of considerable importance." The Goals, Objectives, and Policies (GOPs) of the LUE starting at 5-1 include the following: General Goal: To maintain productive and mutually compatible use of lands and waters within Polk County in a manner consistent with the economic, physical and social needs, capabilities, and desires of Polk County and its citizens. Objective I - Agricultural Uses: To ensure that a sufficient quantity of appropriate lands are available and protected for productive agricultural uses necessary to a sound economic base. Policies: * * * 2. Protect, to the maximum extent possible, agricultural lands from encroachment of incompatible land uses and any detrimental effects of development adjacent to agricultural areas. * * * 5. Provide all possible incentives for the retention of lands into agricultural production. * * * Objective III - Natural Resources Minimize adverse impacts of development on valuable natural resources including the protection of water quality and quantity in surface and ground waters. Policies: * * * 2. The subdivision and platting of land shall be permitted in accordance with the zoning district applied to the property and in compliance with the Polk County Subdivision Regulations and Flood Protection/Surface Water Management Ordinance. * * * Site alteration should be permitted only when such alteration will not adversely affect the natural flow regime or the natural recharge capabilities of the site. Site alteration should be permitted only when such alteration will not result in the siltation of wetlands or reduce the natural retention and filtering capabilities of wetlands. Site alteration activities should provide for water retention and settling facilities; should maintain an overall site runoff equivalent to the natural flow regime prior to alteration and should maintain a runoff rate which does not cause erosion. * * * Storm water runoff should be released into the wetlands in a manner approximating the natural flow regime. Structures should be placed in a manner which will not adversely affect the natural flow regime and which well not reduce the recharge capabilities. Placement of structures shall be consistent with sound flood plain management practices such as compliance with the Flood Disaster Protection Act of 1973. Groundwater withdrawal should not exceed the safe yield per acre as determined by Water Management Districts or successor agencies. Objective IV - Residential Areas To ensure that an adequate supply of appropriately located lands are available for the development and maintenance of residential areas that can be efficiently and effectively provided with necessary public facilities and services. Policies: Promote and encourage the provision of a wide range of housing opportunities, in appropriate locations, to permit a choice of housing types to suit the particular needs of all citizens. Promote and encourage new residential development adjacent to established growth centers, to ensure the orderly use of land and the efficient provision of facilities and services. * * * Encourage new residential development that can be effectively served by the existing transportation facilities. Promote new residential development in non-urban areas, that is properly designed to combine with future adjacent development, to create a neighborhood of sufficient size to facilitate the efficient and effective provision of all necessary public facilities and services. Part VI of the LUE, entitled "Alternate Approaches," discusses the pros and cons of different concepts for planning and managing of growth. It settles on a "Resource-Responsive Concept" as the preferred growth alternative. This concept holds in part: Wherever possible, future growth should be encouraged to take place in or near established urbanized areas. Scattered growth incapable of functioning as meaningful self-contained communities should be discouraged. And it is preferable that the urbanizing area, as it extends over extensive areas within the County, not be developed in one continuous, monotonous maze of residential, commercial, and industrial uses - but that there be open space provided at appropriate intervals so as to provide visual relief and a sense of scale to the overall urban community. Such open space areas can be productively utilized for agricultural and conservation purposes or recreation areas, public facilities and services required. It is proposed that the most appropriate urban growth concept to meet such guide-lines and the policy statements of this land use plan be a resource-responsive growth concept. Under this concept, urban growth and development will be guided and encouraged with respect to its responsiveness to the natural and human resource capabilities of the County. Within any given area of the County, the resources will be careful evaluated in terms of their capability to support growth, and the physical form and intensity of development will be then shaped to provide the physical form and intensity of development will be then shaped to provide a balance with such resources. Prime resources to be considered are as follows: Natural Resources Topography and soil conditions Vegetation and tree cover Wildlife habitats present Drainage characteristics; relationship to rivers and lakes Natural water supply capabilities General aesthetic qualities Human Resources Transportation facilities (roads, railroads, airports) Available water supply and sewage facilities Community facilities, such as schools, parks, libraries Protective services, such as fire and police Established land uses within the area Economic conditions and potentials. Part VII of the LUE, entitled "Implementation," states: "Initial implementation of a Comprehensive Plan and initiation of the continuing planning process for growth management requires the establishment of principals and standards for measurement of proposed activities against the adopted policies of the community." It includes a section entitled "Principles and Standards for the Control and Distribution of Population Densities and Structural/Development Intensity," which provides in part: All Types of Urban Development: * * * Each new development or land use should follow sound land planning principles to maximize site advantages, avoiding when possible, adverse impacts on the natural resources and hazards to health, safety, or general welfare. * * * Residential Development: Low-density single-family development (1-4 units/acre), other than rural residences related to agricultural operations, shall be located in areas capable of being developed into stable, cohesive neighborhoods. In a section entitled "Legal Requirements of Implementation," it states that "all actions taken by local government, whether in the form of permitting private development to occur or in the provision of public facilities and services, are required to be fully consistent with the adopted Comprehensive Plan. The plan, once adopted, must occupy a central position in the consideration of all proposed development." In another section, entitled "Coordination with Other Plan Elements," it states that the "land use element cannot be implemented alone [but] must be coordinated with the [other elements]." In another section, entitled "Needed Improvements in the Zoning Ordinance," it is recognized that "it will be essential that a thorough review of the zoning ordinance be undertaken and that the ordinance be revised as appropriate to achieve consistency with overall planning objectives." It acknowledges that there were "major identified deficiencies in the current zoning regulations" and advises that "the following needs among others should be addressed as a minimum in making revisions to the zoning ordinance": "Revision of the Density Requirement in Residential Districts." Despite the admonitions in the 1985 Plan, to date there has been no revision of the land use classifications, densities, or intensities in the County's zoning code. As before the 1985 Plan was adopted, zoning in the Green Swamp ACSC remains Rural Conservation (RC) and allows up to one unit per acre residential development. The Conservation Element. Part II of the Conservation Element of the Polk County Comprehensive Plan is a "Summary of Natural Resources." At 2-18, there appears a section entitled "Rare and Unique Natural Resources," which describes the Green Swamp, as well as other natural resources in the County, as a "rare and unique land area resource for conservation consideration." At 2-19, as amended by Ordinance 85-08, this element of the comprehensive plan also states: This area comprises the hydrologic heartland of Central Florida and contains the headwaters of the Withlacoochee, Hillsborough, Peace and Oklawaha Rivers. The potentiometric high of the Floridan Aquifer lies within this area. . . . The area has a high potential for recreational and natural enjoyment. . . . The Green Swamp area is the largest expanse of forest in Polk County, with abundant water and wooded areas to provide for wildlife habitats. This area has great significance as an area for conservation of land, air, water, open space and wildlife habitats. Part IV of the Conservation Element is a "Summary of Special Problems, Areas, Issues, and Relationships." Starting at 4-2, it addresses the following: Displacement . . .. Cities in Polk County have historically developed on the ridges and the urbanized areas are spreading outward rapidly into the prime citrus lands and the "marginal" (flood prone) lands. There is considerable concern about urban development in wetland soils and flood prone areas. The double barreled concern for development in wetland soils and wetland areas is that they might well serve valuable natural functions and the private and public problems created by development subjected to flood damages. This property damage promotes public pressure for drainage in wet areas. The issue in wetland drainage and flood control is the jeopardy of natural functions that wetlands and water fluctuations provide in natural systems and flood damage costs. . . . [C]oncern for the growing demand for uplands development which steadily displaces [good pasture land] . . . relate[s] to the use of good pasture land for development. Density The subject of development density is a particular issue of vital importance to the county. Low density development in some areas and high density in other areas is important so that demands for public facilities can be economically and efficiently handled, so that environmental degradation is minimized, and so that land, not suitable for development, can be saved for important natural functions. The present zoning ordinance classifies most of the county in a Rural Conservation (RC) classification that permits low density development without proper regard for those areas that are best suited for development. Portions of the county should be protected from development pressures and appropriate areas should be zoned to accommodate rational densities. The present level of protection, provided by the zoning system is not brought to bear for conservation purposes. * * * Water * * * Another area of concern relates to the draw down and recha[r]ge of the Floridan Aquifer and is claimed to be a rational concern of an area much larger than Polk County. * * * Pollution Environmental pollution, as it relates to water, is a major local concern. * * * Water pollution is concerned because of its effects on recreation and tourism. Water degradation and the pollution of lakes and rivers tends to remove the intangible value that Polk County enjoys in thee form of its surface water resources. * * * Also, the related cost issues of municipal sewage treatment and disposal, effluent disposal techniques, septic tank useage are environmentally economic choices to be made by the public. Discussing the topic, "Preservation and Management," starting at 4-4, Part IV of the Conservation Element states in part: Many issues relate to what, how, or when something should be conserved. * * * Lakes, rivers and canals of the county are of concern as sources of flooding and as resources for flood control, if properly managed. Flood prone areas surrounding surface water have been identified for much of the county. These water bodies are also legitimate concerns as the habitat for fish and other wildlife that provide a significant value in their own right. The area of these water bodies are also special scenic and recreational values that contribute to tourism and development. Part V of the Conservation Element is where the "Goals, Objectives and Policies" are found. It start with some general observations, including in part: . . .. It can be expected, therefore, that the natural environment of the county will continue to undergo modification of one type or another in response to the needs of people. . . . The inventory of total space will, therefore, diminish as these changes take place, resulting in corresponding losses within particular categories of natural resources. What is important is that no critical loss of impairment of a natural resource take place; that development be managed so as to create minimum disturbance of the remaining natural resource systems; and that there be compensation replenishments of resources wherever possible. It then lists a General Goal and several resource-specific objectives and policies: General Goal: Maintain, protect, develop and utilized the natural resources in a manner that will balance and replenish the natural ecological systems and will best serve and promote the desired quality of life for Polk County resident, present and future. * * * Water Resource Objective: To conserve and protect the quality and quantity of water resources through proper management. * * * 6. Identify and protect significant acquifer [sic] recharge areas for maximum recharge capability and protect the water available for aquifer recharge. * * * Minimize the adverse impacts of development on resources of the Floridan Aquifer, wetlands and flood-detention areas. Protect the normal quantity, quality and flow of ground water and surface water which are necessary for the protection of resources of state and regional concern. Protect the functions of the Potentiometric High of the Floridan Aquifer. Prevent further salt-water intrusion into the Floridan Aquifer. Protect or improve existing ground and surface-water quality. Protect the water retention and biological-filtering capabilities of wetlands. Protect the natural flow regime of drainage basins. Rare and Unique Natural Resource Objective: To conserve and protect, through proper resources management, areas having unique natural characteristics and particularly sensitive environmental balance. * * * Policies: Identify all significant areas in Polk County deemed to have unique natural resource characteristics. Encourage proper management of unique wetland areas of the County as a vital water resource. Encourage a proper system for control of development in flood prone and wetland areas to regulate alternation [sic] of the natural system of water retention and storage during periods of heavy rainfall. Preserve and protect, to the maximum extent possible, all delineated areas having valuable unique resource characteristics. Part V of the Conservation Element concludes with a "Summary," which states in part: The objectives and policies set forth above should not be considered as controls to be rigidly applied in every instance of decision-making dealing with the natural environment. Rather, in dealing with resource conservation issues, guidance is preferable to control. . . . A number of potential implementation actions and programs, presented in the following part, will further assist in establishing the direction and scope of conservation activities in the County. Part VI of the Conservation Element is entitled "Implementation." While acknowledging at 6-1 that Polk County cannot establish an implementation program unilaterally, without regard to the co-responsibilities of other governmental authorities at the regional state and federal levels, it states at 6-2 that Polk County "can and should": Utilize the general objectives and policies established by this Element as considerations in all decision making concerning the use and improvement of land within the County. * * * 3. Utilize, to the fullest extent possible, the policies and implementation controls of other elements of the Polk County Comprehensive Plan, and those of other governmental entities having jurisdiction, to further the conservation of natural resources. Starting at 6-3, Part VI discusses the Conservation Element's "Relationship to Other Plans." At 6-4, after stating that the Conservation Element will be largely implemented through the policies and programs of other comprehensive plan elements, Part VI provides: Land Use Element - This element will provide the overall framework for conservation [sic] potentialities through the manner in which land uses are distributed, arranged, and interrelated throughout Polk County. Policies and implementation programs of this element will determine the degree to which new development is properly related to soil types and capabilities, natural habitats, flood prone areas, wetlands and unique resource areas of the County. Land regulatory controls such as zoning, subdivision regulations and development impact reviews provide the basic tools for implementation of the policies of the Land Use Element. Starting at 6-5, Part VI discusses "Guidelines for Implementation." At 6-5, it points out: The nature of conservation policy, being of such broad application and diversity of interest, requires that its effective implementation utilize many approaches, techniques and procedures. Its application is carried out, for the most part, in an indirect way as a by-product of other more direct decisions and actions relation to the development and growth of the County. It is essential, therefore, that Polk County draw upon all possible alternative mechanisms and techniques which will lead to the effective conservation of its natural resource systems. Among the various approaches which Polk County may utilize to further its conservation objectives are the following. * * * Influence in the allocation of resources to achieve the objectives of the conservation plan. Control of events which determine resources allocation in keeping with the conservation plan. * * * Specific procedures and techniques which may be utilized to facilitate the implementation process include the following. * * * 7. Protect natural water bodies and adjacent wetland areas through the regulation of development densities and proper management of stormwater runoff. This would require a cooperative effort with the Water Management Districts in identifying flood plains for various flood frequencies. Polk County's Flood Protection and Surface Water Management Code. Polk County's Flood Protection and Surface Water Management Code was enacted as Ordinance 81-28 and was amended by Ordinance 85-07. Article V is entitled "Flood Protection Standards." Section 5-1 provides in pertinent part: GENERAL STANDARDS: The following minimum standards shall apply to new construction and substantial improvements in all areas of special flood hazard, and to any development, other than phosphate mining, within 100 feet of a watercourse: * * * (6) On-site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding. Section 5-2 provides in pertinent part: SPECIFIC STANDARDS: The following minimum standards shall apply in all areas of special flood hazard where base flood elevation data has been provided: * * * Subdivision Proposals: All subdivision proposals and other proposed developments shall be reviewed by the County Engineer. [I]f the proposal is in an area of special flood hazard, it shall be reviewed to assure that the following standards are met: All such proposals shall be reasonably safe from flood waters resulting from the base flood. All such proposals shall have public utilities and facilities such as sewer, gas electrical and water systems located and constructed to minimize flood damage. Base flood elevation data shall be provided for all such proposals. Roads shall be reasonably safe from flood waters resulting from the base flood. Article VI of Polk County's Flood Protection and Surface Water Management Code is entitled "Water Management Standards." Section 6-2 provides in pertinent part: GENERAL STANDARDS: The following minimum standards shall apply to all development which occurs within an area of special flood hazard and to any man-made change to improved or unimproved real estate . . .. * * * (3) (a) The amount of site alteration within a wetlands soil association shall be limited to ten percent (10%) of the area of wetlands soil association within any given total site. Review under the 1985 Plan and the Flood Protection and Surface Water Management Code. Land Use, Density and Intensity. DCA alleges that the land use, density and intensity of the development Crowder proposes for the site is inconsistent with: (1) the section on "Density" found in Part IV of the Conservation Element, entitled "Summary of Special Problems, Areas, Issues, and Relationships"; (2) a section of Part II of the Conservation Element of the Polk County Comprehensive Plan entitled "Rare and Unique Natural Resources"; (3) Policy 2, Objective I, "Agricultural Uses," in Part V of the LUE; and (4) Policy 2, Objective IV, "Residential Uses," in Part V of the LUE. 6/ As previously stated, the 1985 Plan is a policy plan that does not map land use classifications or densities or intensities of development. Crowder's Paradise Country Estates is consistent with the County's Zoning Code, which has not changed since before the 1985 plan, and Zoning Map. The development was not otherwise reviewed for land use, density or intensity. But it is clear that the 1985 plan does not condone exclusive resort to the zoning code to determine the appropriateness of the land use, density and intensity for development in the Green Swamp ACSC. See, especially, the section entitled "Density" in Part IV of the Conservation Element of the Plan. In the Green Swamp ACSC, especially, reference must also be made to the Plan itself. See Part VII of the LUE, entitled "Implementation." It is not found that all residential use on the Crowder property would be, in itself, inconsistent with the 1985 Plan. But, taking into consideration all of its land use, density and intensity provisions, it must be found that the development order issued in this case, especially at its level of density and intensity and especially in the manner of its issuance, is inconsistent with the 1985 Plan. The crux of the problem with this development, like others in the Green Swamp ACSC already permitted by County development orders, is that, first, the 1985 comprehensive plan and the County zoning regulations in place at the time were inadequate and, second, the steps envisioned in the plan to make them adequate have not been taken. For the plan and the zoning regulations to be adequate, and for a development order for a project in the Green Swamp ACSC in Polk County to be consistent with the 1985 comprehensive plan, either: (1) the plan must be amended to map land use classifications, densities and intensities of development in the Green Swamp ACSC; (2) the zoning code must be amended as envisioned in the comprehensive plan for the Green Swamp ACSC; or (3) the County must evaluate development orders for projects in the Green Swamp ACSC on a case- by-case basis for consistency with the comprehensive plan. None of these three possibilities happened in this case. 7/ Flood Plain Delineation. Paragraph 12 of the DCA Petition alleges that the Crowder development violates Policy 10 of Objective III, "Natural Resources," of the LUE: "Placement of structures shall be consistent with sound flood plain management practices such as compliance with the Flood Disaster Protection Act of 1973." Specifically, it is alleged that the use of a Federal Emergency Management Agency (FEMA) undetailed "A" zone to map the flood prone area on the site, and the failure to perform a detailed study, did not comply with the Flood Disaster Protection Act of 1973. Other allegations in the DCA Petition also implicate the delineation of the flood prone areas on the site. See, (5) Ground and Surface Water Quality, below. A FEMA "A" zone is the zone depicting the area determined by FEMA to be flood prone. In this context, FEMA defines a "flood prone" area as an area flooded in a 100-year, 24-hour storm. At the time Polk County reviewed the Crowder project for approval of the roadway and construction drainage plans, FEMA was requiring that a detailed study be performed to delineate the flood prone area. Polk County apparently was not aware of this requirement and was not enforcing it. Nor, apparently, was Crowder's engineer aware of it. In any event, Crowder did not have a detailed study performed to delineate the flood prone area on the site, and the County did not require it. In approximately March, 1992, Polk County received a written communication from FEMA advising of the requirement for a detailed study of the flood prone area in the case of developments like Crowder's. Polk County now requires compliance with this FEMA requirement. Crowder did not rely simply on the FEMA undetailed "A" zone to map the flood prone area on the site. Crowder's engineers used the existing undetailed FEMA maps as a starting point for determining base flood elevations. The engineers digitized the areas which had been designated as flood prone on the FEMA panels. The engineer then overlayed the digitized FEMA map with the on- site wetlands survey of the property, which had been field-staked and field- shot. Topographical field shots of the property which had been conducted throughout the site at one foot intervals were also overlayed on the digitized FEMA map. In addition, the engineer took into consideration mapped wetlands soils and compared flooding conditions which had occurred on adjacent property to assess whether all areas actually prone to flooding had been characterized as flood prone on the FEMA map. The methodology used by the project engineers was based on sound engineering practices. Nonetheless, it does not qualify as a "detailed study" as far as FEMA is concerned. A "detailed study" would include the application of a computer program that would "route" hypothetical flood waters onto and through the property to ascertain flood elevations in different stages of the hypothetical flood. It is not possible to determine how a detailed study would change the delineation of the flood prone area in Crowder's proposal. The total area of flood prone area could either increase or decrease; it could increase in some places and decrease in others. As it is, several of the lots platted in the Crowder development would be entirely within both the FEMA undetailed "A" zone and the flood prone area mapped by Crowder's engineers. Ground Water Recharge. DCA alleges that platting Paradise Country Estates will adversely impact recharge of the Floridan Aquifer, contrary to Policy 9 and 11, Objective III, "Natural Resources," of the LUE, and Policies 9 and 10 of the "Water Resource Objective" of the Conservation Element, of the 1985 comprehensive plan. In the vicinity of the project site, the Floridan Aquifer comes to within 35 feet approximately of the ground surface. Above the Floridan Aquifer is a shallow aquifer, which rises to within approximately 12 inches of the surface. There is a layer of clastic soils (sand and clay) between the surficial aquifer and the Floridan Aquifer. This confining layer slows the rate of recharge to the Floridan. As a result, the project site is in an area having low, or even very low, to moderate recharge capabilities, at best. USGS Professional Paper 1403-E, which was released in 1990, uses groundwater modelling to quantify recharge rates, instead of using qualitative terms such as "low," or "poor," "moderate" and "high" to describe recharge capabilities. USGS Professional paper 1403-E reports that many areas in the Green Swamp previously labeled as good, moderate or high recharge areas are actually capable of only recharging at rates of 3 to 4 inches per year. The subject property appears to be in the 2 to 3 inch range per year for recharge according to USGS Professional Paper 1403-E. Only three known sample soil borings have been taken on the project site. As a result, the extent of permeability and overall thickness of the confining layer between the surficial and Floridan aquifers is not certain. But there is no reason to believe that there are any karst features or other geologic faults in the area that would allow for direct connections between the surficial and Floridan aquifers. The soil borings that have been taken on the site verify the various geological surveys and studies describing the recharge capabilities in the area. Due to the site's limited capabilities as a recharge area, it is unlikely that the platting of this site will result in any significant reduction in its natural recharge rate. The project is not inconsistent with Policy 9 or 11, Objective III, "Natural Resources," of the LUE, or Policies 9 or 10 of the "Water Resource Objective" of the Conservation Element, of the 1985 comprehensive plan. Individual Water Well Use. DCA alleges that the planned use of individual water wells in Crowder's Paradise Country Estates will impact the quantity of the Floridan Aquifer (and the surficial aquifer) contrary to Policy 11, Objective III, "Natural Resources," of the LUE, and Policies 9 and 10 of the "Water Resource Objective" of the Conservation Element, of the 1985 comprehensive plan. The potentiometric level of the Floridan Aquifer protects the Floridan Aquifer from salt-water intrusion. Significant de-watering of the aquifer caused by large municipal or industrial wells extracting a high volume of water from the aquifer at an intense rate can lower the potentiometric pressure, thus increasing the potential for salt-water intrusion into the aquifer. (Furthermore, the lowered potentiometric pressure creates a hydraulic gradient which encourages surface waters to percolate downward at a faster rate due to the decreased pressure in the Floridan Aquifer. See the preceding sections on Ground Water Recharge and the following section on Ground and Surface Water Quality.) Large municipal, industrial or agricultural wells which exceed 6 inches in diameter must obtain consumptive use permits from the SWFWMD. The Water Management District takes into account what the District determines to be a safe yield per acre when issuing a consumptive use permit. Small, residential wells are not subject to this permitting process as their impacts are much smaller and less intense, and not a concern with regard to their effect on the potentiometric pressure. For this reason, some coastal areas have begun using smaller, individual wells as an alternative to larger municipal wells. The Floridan Aquifer is replenishing itself fast enough for residential wells not to "de-water" or "draw down" the aquifer's supply of ground water. Residential wells do not lower the potentiometric pressure of the Floridan to a significant degree. Nor would they affect the normal supply of ground water, or contribute to salt-water intrusion. Pumping tests performed within two to three miles west of the project site which utilized several residential-size wells support the foregoing conclusions. For these reasons, it is found that the development will not adversely impact the normal supply of ground water and thus will not interfere with the functions of the potentiometric high of the Floridan Aquifer, including its protection against salt-water intrusion. Since the water wells would pump only from the Floridan Aquifer, they would not impact the supply of surface water. In regard to the use of water wells, the project is not inconsistent with Policy 11, Objective III, "Natural Resources," of the LUE, or with Policies 9 or 10 of the "Water Resource Objective" of the Conservation Element, of the 1985 comprehensive plan. Ground and Surface Water Quality. DCA alleges that Paradise Country Estates will result in unacceptable contamination of the Floridan Aquifer, the surficial aquifer, and the surface water (particularly the Withlacoochee River) contrary to Policies 9, 10 and 14 of the "Water Resource Objective" of the Conservation Element. Paragraph 20 of the DCA Petition alleges that the use of individual on-site disposal systems (OSDS), or septic tank systems, in violation of Section 5-1(6) of Polk County Ordinance 81-28 (the County Flood Protection and Surface Water Management Code), 8/ in particular, will be part of the cause of the unacceptable contamination (other causes being from lawn and garden maintenance and automotive wastes.) On-Site Disposal Systems. Chapter 10D-6, Florida Administrative Code, sets forth requirements for the use of on-site waste disposal, or septic tank, systems in the State of Florida. That chapter, which is administered by the Department of Health and Rehabilitative Services ("HRS") through local health departments, provides construction standards for the installation of on-site waste disposal systems. The septic tank serves as a holding tank designed to separate solids and floatable materials and allows anaerobic digestion of organic materials. The remaining effluent exits the tank into the soil infiltrative process, which is referred to as the drainfield. The drainfield is composed of gravel placed around perforated pipes, which are designed to evenly distribute and release the effluent into soil material where the effluent undergoes aerobic digestion. Eventually, any constituents remaining in the effluent which have not been absorbed by the root zone or otherwise decomposed reach the subsurface waters which are referred to as the surficial water table. Each individual lot owner will be required to obtain a permit from the local health department prior to installing an on-site waste disposal system. Prior to issuing a permit, HRS inspects each site to assess soil limitations and to conduct a percolation test to determine the seasonal high water table for the site. Because the soils on the site are severely limited for filtration purposes and the high water table is only 10 to 12 inches below the surface, individual lot owners will be required to mound their on-site waste disposal systems to overcome these limitations. Although the fill used to mound the systems will be comprised of suitable soils, it is possible that the foreign soils will absorb moisture from the existing soils on this site, a phenomenon referred to as capillary fringe affect. This phenomenon can cause those portions of the fill which come in direct contact with the existing soils on the site to lose their filtration capabilities. Unless the fill becomes saturated from other sources, it is unlikely that capillary fringe affect will render the filtration process ineffective. The effects of capillary fringe affect can be lessened by mixing fill with soils found on the site, a practice undertaken by contractors when installing on-site waste disposal systems. In addition, increasing the amount of fill used to mound the system would decrease the potential affects of this phenomenon. 9/ Floridan Aquifer Water Quality. In some areas of the Green Swamp, the Floridan Aquifer is actually considered a surficial aquifer since no confining layers of soil or clay separate the subsurface water from the Floridan Aquifer. These areas would typically be characterized as areas with high recharge capabilities (or high potential for contamination). However, throughout the project site, a confining layer exists which is composed of clayey sands which have a very low permeability. Therefore, there is relatively little interaction between the surficial aquifer and the Floridan Aquifer on this particular site. For this reason, the use of individual on-site waste disposal systems on this site would pose no significant risk to the water quality of the Floridan Aquifer. Surficial Aquifer and Surface Water Quality.-- As for the surficial aquifer and surface water quality, Chapter 10D-6, Florida Administrative Code, requires on-site waste disposal systems be located at least 75 feet from waterbodies. Normally, and when the systems are operating properly, this assures that adequate filtration and decomposition occurs before wastewater reaches surface waters on or near the site. But, in the case of the Crowder proposal, it is necessary to consider that at least some of the mounded systems will be subjected to flooding and will become saturated. Even based on the analysis by Crowder's engineers, 51 of the lots in Paradise Country Estates are entirely flood prone; there is no place to put an OSDS on those lots that is not flood prone. If a "detailed study" had been done, it is possible that more lots would be entirely within the flood hazard zone. Other lots not entirely within the flood zone may not be able to accommodate an OSDS on the part of the lot not within the flood zone. If the OSDS mound is saturated during flood conditions, the system will fail, and untreated waste, or inadequately treated waste, will be released into the surface flood waters. This waste water will move laterally across the project site. Roots may absorb some nitrates or other organic compounds; 10/ otherwise, the waste water and its constituents will remain in the surface water. Lateral movement across the site generally will be slow, as the site is relatively flat. Some of the waste water and its constituents will get into the surficial aquifer. There are ditches or canals alongside and on the site that will direct the rest of the surface water into Pony Creek and other tributories of the Withlacoochee River, an Outstanding Florida Water approximately three and a half miles to the north. The Department of Environmental Regulation issued a dredge and fill permit for the project's road network's impact on wetlands on the site. But it did not pass on the use of OSDS in the individual lots. It also erroneously referred to the Withlacoochee as a natural Class III, instead of an Outstanding Florida Water. See F.A.C. Rule 17-302.700(9)(i). The Southwest Florida Water Management District (SWFWMD) issued a surface water management permit for the project. In evaluating a permit application, SWFWMD considers surface water quality. But the focus of SWFWMD's inquiry is the pre- and post-development peak flows. Also, when it considers water quality, SWFWMD considers the impact of site alteration on water quality, not the impact of the use of OSDS on the site. In addition, the Crowder project was reviewed under special criteria for low-density rural subdivisions that do not require the submission of as much information. It was not clear from the evidence precisely how SWFMD evaluates water quality under those criteria. For these reasons, based on the evidence, it cannot be said that the Crowder project's OSDS will be meet the minimum standard of being "located to avoid impairment to them or contamination from them during flooding," as required by Section 5-1(6) of Polk County Flood Protection and Surface Water Management Code, or that the project will "protect the normal . . . quality of ground and surface water . . . necessary for the protection of resources of state and regional concern," as required by Policy 10 of the "Water Resource Objective" of the Conservation Element of the Plan. Finally, the project will not "protect or improve existing ground and surface-water quality," as required by Policy 14 of the "Water Resource Objective" of the Conservation Element of the Plan. Other Appeal Issues. Except as set forth above, the Crowder development did not violate the 1985 comprehensive plan and Flood Protection and Surface Water Management Code provisions cited in the DCA Petition. Agency Practice - Other Development in the Area. As previously described, Evans Acres, to the west of the Crowder site, was approved by DCA in 1983. (See Finding 10, above.) As approved, it was comprised of 48 lots on approximately 1,290 acres (a density of one unit per 27 acres). The original lots ranged in size from 5 to 60 acres. Unbeknownst to the DCA, individuals apparently have since split their lots and many of the existing lots are 2 to 5 acres in size. A proposed development known as Turkey Creek is located between the project site and Evans Acres. Turkey Creek is comprised of approximately 57 lots on 170 acres with a gross density of 1 unit per 3 acres. The physical characteristics of the Turkey Creek property, including the abundance of wetlands and floodplains, are essentially the same as the proposed project site. DCA appealed Turkey Creek in June of 1992. However, in that case, the County had been approximately two years late in rendering the Turkey Creek development order to the DCA. Meanwhile, the developer incurred development expenses and already had constructed roads and drainage facilities for the development. The developer, the County and DCA executed a settlement agreement which allows the development to proceed according to the original construction plans, but requires homeowners to install dual septic tank systems and have their septic tanks cleaned and inspected every three years. Several other developments, which are in the general vicinity of the project site and have many of the same physical characteristics, including Yearling Trace and Buck Hill, have been appealed by DCA. Yearling Trace is comprised of 108 units on approximately 544 acres. Buck Hill is comprised of 55 units on approximately 214 acres. Those projects were appealed by DCA in June and April, 1992. In some of these cases, the County did not timely render development orders to DCA in a timely manner. In the case of Buck Hill, the DCA had been mailed an unapproved copy of development plans in October, 1990; in early 1992, DCA contacted the County to inquire, as no County-approved development plans ever had been sent to the DCA. In many of these cases, substantial development expenses had been incurred; in some cases, roads and drainage facilities already had been constructed. DCA decided to settle the pending appeals in which the County was late rendering the development order, and in which the developer already had constructed roads and drainage facilities, consistent with the Turkey Creek settlement. In cases where the County was late rendering the development order, but the developer had not already constructed roads and drainage facilities, the DCA determined to settle not only for stipulations to upgrade the OSDS, as in the Turkey Creek settlement, but also for requirements that a "detailed" flood zone study be done, in accordance with the FEMA requirements. Prior to the DCA appeal, Crowder had expended approximately $31,000 in permit fees. In addition, he has incurred development costs, primarily for engineering fees and related services. Through the time of the final hearing, he had spent approximately $99,000 on engineering fees and services. (The evidence was not clear how much had been incurred by the time of the DCA appeal.) However, the County was not late in rendering the Crowder development order, and Crowder has not constructed roads or drainage facilities. In view of the different circumstances in Crowder's case, DCA's prior agency practices do not compel that Crowder's development be treated in the same manner, i.e., be settled on the same terms, as the Turkey Creek and the others. DCA has argued that FLWAC's Final Order in the case of Dept. of Community Affairs v. Narbi International Company, Inc. and Lake County, 14 FALR 3223 (1992), controls this case and requires the Crowder development order to be overturned on appeal. Narbi involved development Green Swamp ACSC, albeit in Lake County. Factually, there are many differences between Narbi and this case. The Narbi development order was a rezoning from agricultural with a residential density of up to one unit per five acres to a residential planned unit development (PUD) zoning with a density of one unit per 1.35 acres. Also, Lake County's comprehensive plan had an "urban containment policy," which DCA equated with its non-rule policy preventing "urban sprawl" or "leap-frog development." Thirdly, in Narbi, it was found that a geologic fault existed on the project site which allowed a direct connection from the surficial aquifer to the Floridan Aquifer. Because of the factual differences, Narbi does not control the outcome of Crowder's case. Conditions for Approval. Based on the testimony of its witnesses, DCA has proposed that, notwithstanding its deficiencies, the Crowder project can be approved if its density is lowered to between one unit per ten acres and one unit per 20 acres. The rationale of DCA's witnesses seems to be that the proposed lower density, in and of itself, would cure at least the most significant of the deficiencies. Since the Crowder development order under review was for approval of particular road and drainage plans, the plans would have to be redrawn at the lower density and resubmitted for approval by the County subject to the final order to be entered in this case. It is not possible for the Commission to approve, on condition of lowered density, the plans that were the subject of the development order in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Land and Water Adjudicatory Commission enter a final order rescinding and denying approval for the development order in this case. RECOMMENDED this 10th day of March, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 10th day of March, 1993.
Findings Of Fact The Petitioner, Millender and Son Fish Company is a wholesale seafood business, with its principle place of business located on the banks of the Carrabelle River in Carrabelle, Franklin County, Florida. The business is owned and operated by Farris G. Millender. Mr. Millender owns the real property on which the business is located and that property is bordered on the north by Avenue "A", also known as State Road 10 which is the main street of the City of Carrabelle. The property is bordered on the southerly margin by the mean high water line of the Carrabelle River. Prior to September 2, 1985, there existed several wooden docks which ran lengthwise along the margin of the Carrabelle River on the waterward boundaries of the Petitioner's property. In the fall of 1985, the Carrabelle area was struck by two hurricanes: the first occurred on September 2, 1985, and the second in November, 1985. These two hurricanes together severely damaged the wooden docks, as well as Petitioner's buildings. In March, 1985, the Petitioner had hired Edwin G. Brown, a registered surveyor, to survey his property. The survey was completed on March 18, 1985, and showed a line along the Carrabelle River identified as "approximate MHW line" (mean high water). The surveyor stated that this line represented the shoreline of Petitioner's property at the time the survey was done. Employees of the Department of Natural Resources verified each end of the Brown survey as being an accurate location of the line of mean high water. That survey also depicted the location of the Petitioner's docks and pilings which were later damaged by the storms. The approximate mean high water line lay landward of the location of Petitioner's existing docks and pilings. The survey also depicted a small concrete bulkhead along part of the boundary line designated as "approximate MHW line" on that survey. On September 10, 1985, after the first of the two hurricanes struck, the Petitioner applied for a city building permit from the City of Carrabelle seeking to construct a seawall at the line of mean high water along that part of his property fronting the Carrabelle River. That permit was granted on September 17, 1985. On September 25, 1985, after Hurricane Elena struck, an emergency permitting team comprised of representatives of the U.S. Army Corps of Engineers, the Florida Department of Environmental Regulation, and the Department of Natural Resources met with Farris G. Millender at his place of business and inspected the hurricane damage. Following that inspection, an emergency authorization permit (APL0029) was issued. That permit described the pre-existing condition of the property as a "functional off-loading seafood dock" and it authorized the Petitioner to rebuild the docks and piers to existing pre- disaster condition. That is, he was authorized to build the docks and piers to the same dimensions, consisting of a "6' x 300' pier, 20' x 45' pier, and 6'-10' x 800' pier and docks behind building." The members of the inspection team saw no evidence of any concrete bulkhead or seawall existing at or near the site of the Petitioner's damaged wooden docks. The Petitioner asked the team members if the permit authorization would allow the construction of a concrete seawall. He was told that the emergency authorization only permitted the building of wooden docks and structures as they had existed previously. He was told that the construction of a concrete seawall would have to be permitted through normal permit application procedures. The emergency permitting process was designed to allow property owners to rebuild structures damaged by the hurricane in the same configuration, as to size, type of material and intended purpose, as those structures which existed prior to the emergency situation caused by the hurricane. On October 11, 1985, Mr. Powell Rivers called Mr. Larry Taylor of the Department of Environmental Regulation and inquired, on Petitioner's behalf, concerning whether bulkheading and backfilling was authorized under the emergency permit. Mr. Taylor informed Mr. Rivers that the emergency permit only authorized repair of the structures as they existed prior to the storm disaster. Mr. Taylor informed him that any additional work or change in the pre-existing installations, such as bulkheading and backfilling, would require a permit which must be obtained through normal permit application procedures. The Petitioner, however, proceeded to construct a concrete bulkhead along the Carrabelle River adjacent to his property and backfilled dirt or soil behind the bulkhead for its entire length. The bulkhead was constructed between September, 1985 and February, 1986. It is approximately 505 feet long and lies 20 to 55 feet waterward of the March 18, 1985, "approximate MHW line" surveyed by Edwin Brown. The area below the mean high water line encompassed by the seawall or bulkhead and attendant fill material is 0.446 acres. In response to a report by the Florida Marine Patrol, representatives of the U.S. Army Corps of Engineers, the Department of environmental Regulation (DER) and the Respondent inspected Petitioner's property on January 24, 1986. The concrete seawall itself was then nearly complete, but the backfilling had not yet been done. The Petitioner was informed at this time that the structure was not authorized under the above-mentioned emergency permit and that state and federal formal permitting was necessary. The Respondent formally notified the Petitioner of the encroachment of the construction in question on state-owned lands, without consent, by letter dated January 28, 1986. The Respondent requested the Petitioner to take immediate action to comply with the Respondent's rules and applicable state law. The Petitioner responded to this notice by stating that his position was that the work was authorized by the emergency authorization issued on September 25, 1985. In this connection, the Petitioner originally testified that Susan Radford, an employee of the Respondent, signed a handwritten note on November 21, 1985, giving Petitioner permission to construct the concrete seawall and related backfilling, below mean high water. The Petitioner recanted that testimony, however, following testimony of Susan Radford, on rebuttal, to the effect that she had not met the Petitioner, had never visited the site and had never signed any form of consent for Petitioner to perform the work in question under the aegis of the emergency permit. Based upon the Petitioner's response to the notice of January 28, 1986, the Respondent conducted an investigation and confirmed that indeed, in its view, the construction was located on-state-owned lands and was not authorized by the emergency permit issued on September 25, 1985. Accordingly, on April 1, 1986, the Respondent notified the Petitioner, with a formal Notice of Violation, that his construction was in violation of Chapter 253 and Rule 16Q- 14.03(1) and (4), Florida Administrative Code. He was ordered to cease and desist any further construction and given 20 days to apply for an "after-the-fact lease" or else to remove all unauthorized materials placed waterward of the referenced mean high water line. The Petitioner thereafter filed a petition for administrative hearing. The materials Petitioner placed waterward of mean high water have not as yet been removed. The Petitioner at a later time, however, applied for an "after-the- fact lease." The Carrabelle River is formed by the confluence of the New River and the Crooked River in Franklin County, Florida. It flows south into St. George Island Sound on the Gulf of Mexico. The river has been variously referred to in times past as the Crooked River, the New River and the Carrabelle River. It is a tidally-influenced water body at the point in question. Its shoreline boundaries are determined at the elevation of mean high water. Historically, Carrabelle and the surrounding environs, including the Carrabelle River area, has been the site of Indian villages, timber harvesting operations and seafood harvesting and processing industries. The river was traveled by boat by a surveyor as early as the year 1806, as far as the source of the New River and Crooked River. In 1840, the river was used as the means of transport for a military expedition. In 1882, the settlement of Rio Carrabelle, now called Carrabelle, had been established and timber was being transported on the river by logbooms or rafts moved by steamboats. Although the mouth of the river was partially obstructed by an oyster bar and sand, the channel contained approximately 4 1/2 feet of water at low tide in 1827 and by 1895 was being travelled by lighters, mail packets, tugs, and other vessels drawing 3' to 5' of water, plying between Carrabelle and Dog Island Harbor. (See Respondent's Exhibits 1, 2 and 3 in evidence.) The existence, location and general size of the New River and Crooked River, and their connection with St. George Sound via the Carrabelle River, has been shown on an 1846 topographic map of the state, as well as on an 1855 survey for the Apalachicola Land Company. The Crooked River was declared navigable by the Florida legislature in 1852, and in 1889, in a Memorial to Congress, the legislature described the importance of the river and the commerce then being shipped from Carrabelle via the river and its mouth. The water immediately adjacent to the Petitioner's property was part of a tidal slough or lagoon running parallel to and slightly north of the main channel of the Carrabelle River, at least as early as 1913. The lagoon was closed from the river on the west end by an intervening strip of land, but opened on its east end into the main channel of the river near Petitioner's property. On the south side of the lagoon there existed a series of marshy islands which were inundated at high tide. The water depth in the slough ebbed and flowed with the tide, but the connection between the east end of the slough and the main river channel near Petitioner's property was always inundated, even at low tide. Since the early part of this century, through 1965, the slough was capable of floating logs and small boats, typically oyster and mullet skiffs, even at low tide. In 1943, when the Petitioner's father purchased the property in question, which the Petitioner now owns, a fish processing house and dock existed along the shore of the property. The Petitioner's father purchased the property for the purpose of operating a wholesale fish business and the Petitioner was able to transport mullet to and from the main channel of the river to the docks along the front of his property in a "mullet skiff," which is a small boat of shallow draft typically used by commercial fishermen in the area. By 1954, the width of the slough along the Petitioner's property had increased and the marsh islands separating it from the main body of Carrabelle River had become smaller. More docks had been constructed along the Petitioner's shoreline and the adjacent property farther up the slough. Boats were able to navigate and moor to these docks. Additionally, since at least as early as 1913 through the present time, the shoreline along the Petitioner's property has been covered and uncovered by the daily ebb and flow of the tides in the Carrabelle River and in the slough. Thus, from the early part of this century to the present time, the waters adjacent to the Petitioner's property have been susceptible to navigation by small boats and skiffs used commercially by oyster and mullet fishermen. In 1965, the U.S. Army Corps of Engineers deepened the main channel of the river and the waters near the Petitioner's property, enabling larger vessels to dock alongside Petitioner's property. The Petitioner and his witnesses testified to substantial erosion which has occurred along Petitioner's shoreline over the years, allegedly as a result of dredging activities of the Corps of Engineers. However, aerial photographs taken by the Department of Transportation in 1953, 1965 and 1977, during periods at or near mean high tide, show a shoreline location and configuration essentially the same as that existing when it was surveyed by Edwin Brown in March of 1985. The Petitioner's wooden pilings, which now form the waterward boundary of the new seawall, were part of a wooden dock which was located at the same place prior to the 1965 dredging activities by the Corps. It was used to dock and unload fishing boats prior to 1965.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED that a final order be entered by the Respondent, Department of Natural Resources, finding the Petitioner in violation of the authority cited next above and ordering such corrective action as is authorized by Chapter 253, Florida Statutes, and Chapter 18-14, Florida Administrative Code. DONE and ORDERED this 7th day of January, 1988, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1498 Petitioner's Proposed Findings of Fact: 1-7. Accepted. 8-9. Rejected as contrary to the preponderant weight of evidence and subordinate to the Hearing Officer's findings of fact on this subject matter. Petitioner's Proposed Findings of Fact on Historical Mean High Water: 1-3. Accepted. Accepted generally but subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as constituting a recitation of testimony, contrary to the preponderant weight of evidence and subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as constituting a recitation and dis- cussion of testimony. Rejected as constituting a discussion or recitation of testimony and not a finding of fact and is contrary to the Hearing Officer's findings on this subject matter and subordinate thereto. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as contrary to the Hearing Officer's findings of fact on this subject matter. Accepted. Accepted, but not dispositive of any material issue presented and subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Rejected as contrary to the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter. Petitioner's Proposed Findings of Fact on the Issue of Estoppel: Accepted, but not dispositive of any material issue presented in itself. Accepted, but not dispositive in itself of any material issue presented. Accepted, but not dispositive of any material issue presented in itself. Respondent's Proposed Findings of Fact: 1-8. Accepted. 9. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. 10-14. Accepted. 15. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. 16-27. Accepted. COPIES FURNISHED: Eugene E. McClellan, Jr, Esquire Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399 J. Ben Watkins, Esquire WATKINS & RUSSELL 41 Commerce Street Apalachicola, Florida 32320 Tom Gardner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Thomas G. Tomasello General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact Hammock Dunes is a parcel of land located on the east coast of Florida approximately half way between Daytona Beach and St. Augustine. With the exceptions of a few small parcels separated from the main area, the area in question in this case is that bounded by Malacompra Road to the north, the Atlantic Ocean to the east, and State Road A1A to the south and west. The property is cut at several places from the west boundary, State Road A1A to the east by 16th Road, Jungle Hut Road, and the approach road to the Sheraton Hotel. All of the property at issue in this hearing is owned by either Admiral or its parent company, ITT. The natural terrain is a series of ridges and swales which contain to the west, sea oats, salt palmetto, and coastal scrub in the drier areas. The lower interior ridges contain alternating growth of the above vegetation until one gets to the immediate area of State Road A1A where, because of the fill, oak and other upland vegetation is in evidence. Ditches exist on both sides of each of the cross roads mentioned above. In addition, ditches have been dug in a generally north - south direction following the ridge and swale run of the land and there is also evidence of spoil banks in the southern portion of the property resulting from the dredging of the Florida East Coast Canal. The north/south ditches in question were dug as a part of the mosquito control program carried out over several years starting in 1953 to remove the seasonal breeding ground of salt marsh mosquitoes. In addition to these north/south control ditches, there are other ditches leading away from them which form a part of that system, and there are some permanent waters on the property, primarily at the southern end near the Sheraton Hotel and at the coquina quarry. The dominant vegetation adjacent to the ditches includes a mixture of plants including weeds, disturbance plants, and persistent vegetation. Aerial photographs taken at various times over the period of the last 40 years reflect that the vegetation includes cat tails, bunch grass, wax myrtle, cabbage palms, and salt brush. Many of these ditches are encroached by the growth surrounding them. The existence of cabbage palms serves as a tool to define the swale areas because water conditions are not suitable for these plants in the swales. The swales in question, which basically were the areas in which the drainage ditches were dug, were natural and not man made. According to Dr. Durbin C. Tabb, a consultant in environmental assessment, whose work emphasizes the location, siting, and sensitivity of aquaculture projects, vegetation in areas such as this goes through a progression of species and this progression is used in relic analysis. Dr. Tabb performed a relic analysis on the area in question and based on this, as well as an analysis and examination of extensive aerial photography done of the area, he concluded that prior to the ditching activity, the plant community in the area could be described as a "wet prairie." This is an area of virtual treeless grasses and shrubs growing in an area periodically inundated by water. The zonation of the plants caused by this periodic inundation, as determined by Dr. Tabb, is consistent with wet prairie and that condition, prior to the ditching for mosquito control purposes, was consistent with mosquito breeding. In his analysis, Dr. Tabb found that numerous plants, such as cat tails, maiden cane, pickerel weed, saw grass, spike rush, soft rush, switch grass, button bush, and coastal plain willow, all of which need a moist environment, were extant in the area. Dr. Tabb also concluded that the water in the swales was primarily fresh water. In dry periods, however, in the lower areas, some salt could be sucked up from below ground by capillary action. Another survey of the area was conducted by Jeremy Tyler, the supervisor of the dredge and fill section of the Northeast District of DER, who has performed more than 3,000 jurisdictional determinations over the past 10 years, and who performed the jurisdictional determination for the property in question here. In making his determination, Mr. Tyler looked at various maps, aerial photographs, and information supplied by Admiral Corporation and conducted at least three recent on-sight visits to the property in addition to others conducted in the past. Based on all of this information available to him, Mr. Tyler concluded that certain portions of the Hammock Dunes area were exempt from DER dredge and fill permitting requirements. His conclusions were that the canal running to the intra-coastal waterway and the waterway itself were jurisdictional. Mr. Tyler determined that at least two ditches went through the uplands portion of the area as a part of the mosquito control operation. These ditches were the one at the west side of Malacompra Road which entered into the intra-coastal waterway; another was the westernmost ditch running south into the barge canal at the southeast corner of the property. Both were exempt. The third ditch in the area, that on the most eastern side, was not cut in the mosquito control operation and therefore did not meet the criteria for exemption. On the basis of this, he concluded that DER's jurisdiction extended to the sides of the jurisdictional ditch up about half way northward on the lake in the southeast corner of the property. North of that point, the ditch was cut through a non-jurisdictional uplands area. Mr. Tyler indicated that he would normally follow each ditch up-stream, but, having been made aware of the extent of the mosquito control operation, and the relationship of that operation to the ditches, he concluded that the majority of the ditches in the area were dug during the mosquito control operation and met the criteria for exemption, and, as a result, he did not have to follow them to their source. If he had not been satisfied that the mosquito control district exemption applied, he would have gone up each and every ditch to see where jurisdiction stopped. Prior to publishing an opinion as to jurisdictional limitations, ordinarily the agency will request a legal review of the proposed determination. This was done in the instant case by agency counsel Richard Lee. However, Mr. Tyler made the ultimate determination that the exemption applied in this case. He did not examine the question of whether the ditches constituted a series of lakes connected, so as to support jurisdiction, because since he was satisfied they were dug in mosquito control operations, the exemption applied which obviated any other jurisdictional issue. Robin D. Pyne, a consulting engineer in water resources, has studied the Hammock Dunes property since 1977 when his company was hired to do a water use plan for a neighboring community. Since 1979, he has had substantial opportunity to study the water situation there. Over the years, he has specifically tried to determine if standing water existed between the swales prior to the beginning of the digging of the mosquito control ditches in 1953. In doing his analysis, he relied on historical data, site topography data collections, reports of other agencies, and the work done by other experts. Considering all this, Mr. Pyne found that the soil in the Hammock Dunes area was basically well drained beach sand. Any rainfall on this area would seep in quickly and not run off, as the sand is very porous. During periods of sustained rainfall, the water table rises into the low part of some of the swales. Once the rains stop, however, the water drains off quickly through the ditches, and before they were in place, through the underground drainage which went west to east to the ocean as well as through evaporation. Extrapolation of this theory and its application to known data revealed that prior to the beginning of the mosquito control ditch program in 1953, wet soils were found in the swale bottoms only periodically and the swale bottom water level was determined by the level of the water table in the area. Generally, the swale bottoms would not be wet under average or dry weather prior to the digging of the ditches. The several mathematical calculations made by Mr. Pyne for the period prior to the ditches revealed that generally the average water table was below the bottom of the swale and there is no standing water in the bottom of a majority of the swales. Mr. Pyne concluded that the digging of the ditches may have lowered the water table by approximately one foot overall, but this would not affect his thesis. It is accepted here over that of Mr. Frazee who testified for Petitioner, and whose testimony is discussed in Para 24, infra. Other analysis was conducted by Mr. James H. Humphrey, an aerial cartographer who analyzed photographs of the area in question taken in 1943, 1952 and 1983. The use of a stereo plotter in these analyses delineated swales, ditches, roadways and other features important to the project. Based on the technical tools and procedures available to and used by him in his analysis, Mr. Humphrey is convinced the swales he identified are accurate and using his plotter, the textures of grasses, the tones of grey on the picture, and other like considerations, he was able to determine this outline. Dr. Thomas H. Patton, a geologist with a specialty in geomorphlogy, a study of why land looks as it does, and the relationship of soils to geomorphology, performed studies on the property in question to determine if the swales contained soils indicative of inundated conditions. To determine this, he looked for certain characteristics of the soils in the area to determine if the soils had been inundated for a period of time. In doing so, he first used aerial photographs to get the lay of the land from an overview standpoint defining general trends and the general outline of the land, roads, and other impacts by man. He then took soil samples from the major, the intermediate, and the minor swales and tried to get samples from between the swales to see if there was any interconnection between them. He took samples from soil across the entire width of each swale studied. Soil samples contain and maintain within themselves indications of sustained emergence or saturation. Studying these indicia can show how long the soil was dry (above the water table or below it). If the soils were inundated for a long period, they would show a preservation of a surface decomposed organic layer reflected by a dark grey to black color. This is the primary indication. There are others such as a blue-grey/green coloring of the subsurface and a mottling or sign of reduced condition. This test has been adopted by the Department of Natural Resources and the United States Corps of Engineers. Certain horizons have been defined and identified by letter. These are: O - the top, made up of leaf litter A - the elevated layer - transfer level B - just at or above the water table (normal dark brown color), and BH - the water table level - no clay or organics According to Dr. Patton, it takes a long time for the BH level to accumulate. The process is quicker in a porous soil than a dry soil and the Hammock Dunes area has porous soil. One would not find a BH horizon, however, in a saturated or inundated soil. If the soil is saturated, even a large part of the year, there would be no BH horizon. At the Hammock Dunes site, the emergent soil has a diffused, darker upper surface. Below that comes a much cleaner, greyer sand and beneath that, the zone of accumulation. Dr. Patton's survey revealed to him that soils in the swales were not inundated throughout the year. They were inundated during periods of high rainfall, but because of the porosity of the soil, would drain quickly. On the entire property, he saw only four isolated areas that could be considered wetlands. In the majority of the area, the soils appeared to be emergent soils. Most met the typical horizon picture including a BH zone. Using a specific site as an example, Dr. Patton traced to the BH horizon starting at approximately 42 inches down. The soil started lighter on top and proceeded to get darker as one went down to the zone of accumulation. That indicated that the water table was at or near 42 inches sufficiently during the year to achieve accumulation. Had the water table been nearer the surface more of the year, that would not occur. In Dr. Patton's opinion, this situation, including the water table level, stayed just about at that point all the time for at least a couple of hundred years if not for 1,000 years. This is not to say that the water table will not move during periods of drought and over rain. It will, but those periods are relatively short and the general level of water table where the BH horizon is is just about normally at 42 inches throughout the Hammock Dunes property. In preparing his analysis, Dr. Patton compared the swales work described above with the soils found in what he considered a wetlands area just north of 16th Road to see what a real wetlands soil in this area looked like. He found the latter to be black and mucky and typically wetland. He also took samples from Bonne Terre farms, which is a drained historical wetland. In this wetland, the soil was quite organic at the surface which showed sustained inundation of the surface. He also took samples at a place where Varn Lake comes close to State Road A1A and at that point, it was determined that there had been submergence, saturation, or inundation long enough to constitute a wetlands. The organic material was at a depth which indicated there that originally the area was wetlands but he cannot say when. In general, then, if the interdunal swales had been inundated prior to the dredging operation of the mosquito control ditches, there would have been organic materials still in the bottom of these swales. The time necessary to leach it out would have been several hundred years. Since the BH horizon, with its level of organic material, was located at 42 inches, this indicated that, for the most part, the Hammock Dunes areas with their swales included were not historic wetlands. Dr. Patton agreed with Mr. Pyne that the digging of the mosquito control ditches did not materially lower the water table nor does he believe that except in the worse conditions, in the rainiest of rainy seasons, that the water table in one swale was ever connected to the water table in another. In contrast to the above, Petitioner introduced testimony by various experts and residents which contradicted that referenced above. James M. Frazee, an employee of the St. Johns River Water Management District became familiar with the Hammock Dunes area in connection with a salt water intrusion problem he was working on while employed with the U.S. Geological Survey in 1978 to 1980. During that period, he entered the site at least once a month. Based on his visits at the time, he found the area in question to be a combination of relic dunes with an interdunal lake system which holds water during periods of average to high water levels. His measurements of the water depth between the ridges showed it to be anywhere from 1 1/2 to 2 1/2 feet down. This was during a period when the water table was between 5 1/2 to 6 feet above mean sea level, and was a period of above normal rainfall. During the period 1965 to 1980 there was a period of less than normal rainfall during which the water table fell from the high above to approximately 6 inches above mean sea level. Mr. Frazee contends that the interdunal swales are lakes and ditches dug by the mosquito control district have drained the area. In his opinion, were it not for these ditches, the ground in the swales would be much wetter, but Mr. Frazee cannot indicate by how much. His testimony, contradicted by that of Dr. Patton and Mr. Pyne, is not considered to be consistent with the weight of the evidence. John Labie, an employee of DER specializing in water quality assurance, is familiar with the Hammock Dunes area and examined it as to ditching by a review of numerous aerial photographs and surveys. In his study, he tried to determine what the area looked like originally. In addition to the documentation he reviewed, he also walked a great portion of the area, personally examining the property in question. On the basis of his inquiry, he concluded that the area was previously a wetlands which was dried out by the mosquito control ditches. He admits that his depictions of historical wetlands, on the maps utilized for demonstrative purposes at the hearing, was not based on the same degree of accuracy and sophistication as was the basis for Respondent, Admiral's expert testimony. Another evaluation was conducted by botanist Sydney T. Brinson, an employee of DER, whose job includes the preparation of jurisdictional determinations based on botanical studies. She visited the site herself and determined there are at least three connections to waters of the state and from these connections into the interior of the Hammock Dunes property. She contends then, that if there were not mosquito control exemption, at least some of the ditches would, at least partway up, be jurisdictional. It is her opinion that before the ditches were put in, based on old documentation, the area was a series of coastal dunal lakes and the lakes, as they existed, did not have much plantlife in them. Relying on the U.S. Coastal and Geodetic Survey maps, which refer to much of the areas as "open water," she contends that the area was a system of coastal lakes rather than marshes. Marshes contain vegetation. Lakes generally do not. It is her further opinion that the interdunal waters, as interdunal lakes, total approximately 270 acres. Not all of these are connected at the surface. She feels that all of the individual systems north of the Florida East Coast Canal are more than 10 acres in area and would have to be over 2 inches in depth because of the fact that they are reflected as open water on the USGS maps. Based on her research, she concluded that prior to the digging of the mosquito control ditches, the area was a historic wetland. This opinion is not supported by the weight of the evidence, however. Another expert in soils science, Dar Guam Cheng, visited the site on May 9, 1985, and, in addition, reviewed a 1918 soils map of the area. Back then the area consisted of hydric soils which is a wetlands soils. All types of soils found in the area in 1918 are considered hydric (wetlands) soils. Mr. Cheng, however, took no samples himself on the Hammock Dunes property. His evaluation was based solely on the 1918 map, and is not considered to be of substantial value to the determination of this issue. Burrell Miller, a 76 year old resident of Hammock Dunes since 1979, but who either lived or visited in the area since 1917, indicated that his family homesteaded the area around Malacompra Road in 1920. During the period 1917 through 1943, he recalled, there was always water storage in the Hammock Dunes area. There was, however, not always high water except in the 1926 hurricane. There is, however, fresh water generally there every time it rains and the water generally stays level with the sea level. Mr. Miller recalls that from time to time in years past, boats were needed to cross the savannah to the beach. On other occasions one could wade in water up to one's waist. As he recalls, some of the soil was wet all of the time and never dried out. Mr. Miller's testimony, however, was fragmented and capable of numerous interpretations. It is not given the same weight as the scientific evidence presented by other parties. Nonetheless, another resident, Petitioner, Gerald Schatz, started coming to the area in 1953 and settled there in 1954. Over the years, he has gone into the Hammock Dunes area quite frequently and it is his recollection that along Malacompra Road, there always seemed to be some water, at times, up to the floor board of his pickup truck. He can recall when the mosquito control ditches were started in 1953. Even before he came to the area, Mr. Schatz' father-in- law lived there and always considered it wet. He recalls hearing others also describing the area as being wetlands. During the 1926 hurricane, it was flooded and again in 1957. Before the ditches were installed, there was, to his recollection, substantial standing water. Mr. James J. Miller, state archaeologist for Florida and very familiar with the history of the area, is familiar with the Hammock Dunes area from the work he did on a Development of Regional Impact for the area. Having reviewed records and historical documents relating to this specific area, going back as far as 1605, he concluded that there was no natural waterway extending across the Hammock Dunes area. His study, however, dealt with the issues of navigability of waters not its hydrographics and his study did not deal with the issue of wetlands. Nonetheless, it is clear from the above, that the area was neither open water or a water course at any time in recorded history. The overwhelming weight of the evidence clearly indicated that the Hammock Dunes property was not a historical wetlands within the framework and the intent of the statute or the rule. Admittedly, the area was inundated from time to time, especially after such periods of high rainfall as hurricanes, tropical storms, or above average rainy seasons. During those periods, the standing water which remained for a relatively short period of time was often of such magnitude as to come to the floor board of a pickup truck, or require the use of a skiff or other surface transport over the water to cross it. This clearly accounts for the memory of Mr. Miller as to him using boats to get to the beach and for the recollection of Mr. Schatz who remembered water coming to the floor boards of his truck On the whole, however the scientific evidence presented by Admiral Corporation, including such expert testimony as that of Dr. Patton, Dr. Tabb, Mr. Pyne, and other highly qualified scientists who visited the site and conducted reliable scientific evaluations of the area, all clearly lead to the inescapable conclusion that the area was for the most part and over the long run not a submerged wetland. There can be little question that the majority of the "swales" on Hammock Dunes were either the result of or enhanced by mosquito control ditching operations of the East Flagler Mosquito Control District over the period from 1953 through completion. Though these ditches ultimately connect with the intercoastal waterway or the Florida East Coast Canal, both of which are waters of the state, these connections, with the exception of the ditch west of Varn Lake which is admittedly not exempt, are obviously due to mosquito control activities of EFMCD. According to the best evidence available, the land in question was not a surface water body nor was it connected to a water of the state prior to the construction of the mosquito control ditch system. For the most part, the interdunal swales, which constantly hold water, are less than 10 acres in size and have an average depth of less than 2 feet of water in them throughout the year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that DER take final agency action adopting the preliminary determinations made by its Northeastern District of DER's permitting jurisdiction for the discharge of dredge and fill materials on Hammock Dunes as outlined in the DER Northeast District letter of August 9, 1984 to Admiral Corporation. RECOMMENDED in Tallahassee, Florida this 23rd day of December, 1985. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 1985. APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-3604 In the preparation of this Recommended order, the proposed Findings of Fact submitted by Petitioner and Respondent were thoroughly considered and evaluated. As listed below, the individual proposed findings were accepted or rejected by the undersigned as indicated: For the Petitioner: 1) accepted and incorporated in para 30 (a)-(e) accepted but not dispositive of any issue - 6) accepted except for the last sentence of para 6 which is argument rejected as contra the weight of the evidence accepted accepted but immaterial 10 - 12) accepted but not dispositive irrelevant irrelevant irrelevant accepted rejected as irrelevant (a) - (d) accepted - 23) accepted but not controlling 24 - 25) rejected as argument, finding of fact 26 (a) (1) - (4) accepted but not conclusive or definitive 26 (5) rejected as a summary of documentation and not a mapped Findings of Fact 26 (b) - (d) rejected as a summary of testimony and not a finding of fact rejected as a summary of testimony and not a finding of fact rejected 29 (a) - (d) rejected as argument summarization of testimony rather than Findings of Fact rejected as a summary of testimony rather than Finding of Fact accepted 32 - 36) accepted rejected as contra to the weight of the evidence rejected as summary of testimony and not Finding of Fact rejected as contra to the weight of the evidence and argument rather than Finding of Fact rejected as summary of testimony and not Finding of Fact 1st and 2nd paras accepted, but 3rd paragraph rejected as not the better evidence rejected as argument and not Finding of Fact 43 - 44) accepted accepted rejected as contra to the weight of the evidence accepted as to the severance of Varn Lake from the major canal but rejected as to contra to the weight of the evidence as to the historical connection rejected as contra to the weight of the evidence accepted accepted that Mr. Labie made such a "finding" but the finding is rejected as contra to the weight of the evidence 51 - 52) rejected as recitations of testimony and not Findings of Fact 53) rejected as far as categorization of the periodic wet areas as "lake systems" 54) accepted as a statement of Mr. Schatz's recollection accepted as a statement of the contents of a writing not dispositive of the issue 57 - 59) accepted 60) rejected as contra to the weight of the evidence For the Respondent: accepted accepted accepted except for the term "swales" which is used merely descriptively and not binding as to definition accepted accepted 5 (a) - (c) rejected as recitations of testimony rather than Findings of Fact 5 (d) - (8) accepted rejected as contra to the weight of the evidence. Petitioner's witnesses' testimony was, in general, in disagreement with that of Respondent's witnesses. However, as stated in the Recommended Order, the weight and quality of Respondent's evidence prevailed. (o) - (q) accepted not as fact but as a recitation of the evidence presented by each witness (a) - (c) accepted - 11) accepted 12) accepted COPIES FURNISHED: Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Deborah Getzoff, Esquire Ross Burnaman, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Randall E. Denker, Esquire Lehrman & Denker Law Offices 103 North Gadsden Street Post Office Box 1736 Tallahassee, Florida 32302 Timothy Keyser, Esquire Post Office Box 92 Interlachen, Florida 32048 Carlos Alvarez, Esquire Carolyn S. Raepple, Esquire Hopping Boyd Green & Sams 420 First Florida Bank Bldg. Post Office Box 6526 Tallahassee, Florida 32314 =================================================================
The Issue The ultimate issue for determination is whether the Petitioner has met the requirements of Sections 403.918 and 403.919, Florida Statutes, for the issuance of a dredge and fill permit within the waters of the State of Florida.
Findings Of Fact The Department takes exception to the Hearing Officer's statement in Finding of Fact No. 5 that the fill "over time will become inhabited by the types of life which live at the edge of the water and land." The Department argues that the record contains no competent, substantial evidence to support such a finding of fact. The law prohibits me, as agency head, from rejecting any finding of fact in a recommended order that is supported in the record by competent, substantial evidence, but I can and should reject findings of fact which are not supported in the record by competent, substantial evidence. Section 120.57(1)(b)10., Florida Statutes. In this case I must agree with the exception. A review of the entire record reveals no competent, substantial evidence to support the finding of fact. The only record evidence remotely bearing on the matter is that portion of the testimony of Dr. Peebles where he stated that "there probably are some small animals and little salamanders and whatever that live in that area, but I don't believe that they would all die. I think they migrate out into the other natural area that I'm leaving." (Tr. at 21) 2/ This testimony does not support the finding of fact, and the record contains no other evidence even remotely bearing on the matter. Therefore, I reject this finding of fact and accept the exception of the Department. The Department next takes exception to Finding of Fact No. 11 in which the Hearing Officer states that "However, this effect [on the life cycle of fish] will be minimal and would not itself cause significant damage to fishing or the lake." Once again, the Department contends that there is no competent, substantial evidence in the record to support the finding. Dr. Peebles testified: I can't honestly believe that me filling 14.3 percent, of my frontage is going to effect the health, safety, welfare and property of other people. The same goes for . . . whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Now, this is a case where to argue that on a factual basis would require expert witnesses that would say yes and others that would say no. I think we would find conflicts on all of these subjects. (Tr. at 19) Dr. Peebles also testified that "14.3 percent of the shoreline for the use of the owner is not a serious thing. So I don't think any far reaching serious impacts will occur by granting [the permit]." (Tr. at 75) The only other statement in the record which arguably supports the finding of fact is a statement made by Dr. Peebles while questioning the Department's witness. There Dr. Peebles stated that "I know for a fact -- I'm a fisherman. I fish in the lake. It's a good fishing lake, and with all the construction that's already taken place you've still got good water quality." (Tr. at 70-71) Whether the proposed project and the cumulative impact of reasonably expected future similar projects will have a minimal or significant impact on fishing and the lake is an area requiring specialized knowledge, skill, experience or training. Although the lay opinion of Dr. Peebles may be helpful in supporting expert testimony, lay opinion standing alone may not under law establish what the impacts would be. Dr. Peebles acknowledges that he is not an expert in ecology or the environment, and admits that expert testimony is needed to determine whether granting the permit will adversely affect the conservation of fish and wildlife. (Tr. at 19) Therefore, Dr. Peebles' opinion that there will be no adverse effect on conservation of fish and wildlife (Tr. at 19) and that the filling of "14.3 percent" of the shoreline for the use of the owners will not have "any far reaching serious impacts" (Tr. at 75) is not supported by expert testimony and is not sufficient evidence to support the finding of fact. Section 90.701(2), Florida Statutes; Ehrhardt, Florida Evidence 387 (2d ed. 1984); Husky Industries v. Black, 434 So. 2d 988, 992 (Fla. 4th DCA 1983) ("Expert testimony is not admissible at all unless the witness has expertise in the area in which his opinion is sought.") Furthermore, the statement that Dr. Peebles made while questioning the Department's witness is not evidence. To the extent that it might be liberally construed as evidence in view of the fact that he was not represented by counsel, the existing fishing quality of the lake is not relevant to the impact of future filling of wetlands around the lake. On the other hand, Mr. Jeremy Tyler, accepted as an expert in the areas of the environment and water quality, (Tr. at 52) testified that the cumulative impact of granting Dr. Peebles' permit and similar permits reasonably expected would result in an adverse impact on conservation of fish and wildlife, (Tr. 35-41, 49-51, 54-55) and ultimately would result in a violation of water quality standards. (Tr. at 60, 64 and 69) Therefore, not only is there no competent, substantial evidence in the record to support the finding of fact, but there is uncontroverted expert testimony to the contrary Therefore, I accept this exception. The Department also takes exception to any implication in Finding of Fact No. 11 that the Department's only concern is with cumulative impacts. I do not read the Recommended Order as making any such implied finding. The record shows that the Department concluded that reasonable assurance had been provided that the instant project, standing alone, would not result in water quality violations, (Tyler, Tr. at 51, 60, 64) but that water quality violations will occur and the project is contrary to the public interest when the cumulative impact of reasonably expected future permit applications are taken into consideration. (Tyler, Tr. at 35-41, 49-51, 54-55, 60, 64 and 69) This does not suggest that the Department's only concern in such permitting decisions is cumulative impacts. It only means that under the facts of this application, the only remaining concern is the cumulative impact of reasonably expected future permit applications. The exception is rejected. The Department takes exception to Finding of Fact No. 12 to the extent that the statement "Mitigation of the impacts to fishing is not practical" implies that the only negative impact of the proposed project is to fishing. As noted in my discussion of Point 3 above, the record contains competent, substantial evidence that when the cumulative impacts of reasonably expected future projects are considered, water quality violations will result and the proposed project will be contrary to the public interest. I have reviewed the entire record and find no competent, substantial evidence to support a finding that the impact of the proposed project and cumulative impact of reasonably expected future projects would be limited to fishing quality. To the extent that the Recommended Order implies such a limited impact I reject the implication and accept the exception. The Department's final exception to findings of fact argues that Finding of Fact No. 14 improperly implies that the proposed project would not impair water quality. Finding of Fact No. 14 states, "The amount of fill proposed in this application would not place the lake at risk or impair fishing; however, if additional such permits are approved it may at some point impair the waters and fishing." Although some semantic difficulties arise out of the Hearing Officer's use of the terms "place the waters at risk" and "impair the waters," the finding of fact is consistent with - testimony of Mr. Tyler that reasonable assurance had been provided that this proposed project, standing alone, would not violate water quality standards. (Tr. at 51) The finding is also consistent with the testimony that when the cumulative impact of this project and similar reasonably expected projects are considered, reasonable assurance had not been provided that water quality standards will not be violated and that the project is not contrary to the public interest. (Tr. at 60, 64 and 69) However, the impact of the project on the water quality of the lake is a matter that requires expert testimony. As in the case with the impact on conservation of fish and wildlife discussed above, Dr. Peebles introduced no expert testimony regarding the impact of the project on water quality. On the other hand, the Department's expert witness testified that although reasonable assurance had been provided that the project, standing alone, would not violate water quality standards, (Tyler, Tr. at 51) he also testified that the project by itself would have some adverse impact on water quality. (Tyler, Tr. at 51) Therefore, any implication that the project by itself would not impair the water quality of the lake lacks support in competent, substantial evidence and is contrary to unrebuted expert testimony. To the extent the Hearing Officer's finding implies that the project will not impair water quality, such a finding can not affect the outcome of this case because impairment of water quality is not a proper legal criterion for deciding whether to grant or deny the permit. The proper criterion is whether reasonable assurance has been provided that the project will not violate water quality standards. Cf. Houle v. Department of Environmental Regulation, 10 FALR 3671 (DER Final Order, June 13, 1988), per curiam aff'd, 538 So.2d 1257 (Fla. 1st DCA 1989); Brown v. Dept. of Environmental Regulation, 9 FALR 1871, 1875 (DER Final Order, March 27, 1987), per curiam aff'd, 531 So.2d 173 (Fla. 4th DCA 1988). Since the implied statement of the Hearing Officer does not affect the outcome of this case, any error is harmless and I reject the exception. RULINGS ON EXCEPTIONS TO CONCLUSIONS OF LAW Burden of Proof The Department contends that the Hearing Officer erred in not placing the burden of proof on Mr. Peebles to show that the project is not contrary to the public interest when the cumulative impact of reasonably expected similar future projects are taken into consideration. An applicant for a permit has the burden of proof or persuasion to show entitlement to the permit. Florida Department of Transportation v. J.W.C. Co., 396 So.2d 778 (Fla. 1st DCA 1981). In order to show entitlement to a dredge and fill permit, an applicant must show that he has provided reasonable assurance that water quality standards will not be violated and that the project is not contrary to the public interest, and both of those tests must take into consideration the cumulative impacts of similar projects which are existing, under construction, or reasonably expected in the future. Sections 403.918(1), (2) and 403.919, Florida Statutes; Caloosa Property Owners' Ass'n v. Dept. of Environmental Regulation, 462 So.2d 523 - (Fla. 1st DCA 1985). 3/ The applicant's burden of proof includes the burden of giving reasonable assurance that cumulative impacts do not cause a project to be contrary to the public interest or to violate water quality standards. Concerned Citizens League of America, Inc., v. IMC Fertilizer, Inc., et al., 11 FALR 4237, 4244 (DER Final Order, March 29, 1989); Brown v. Dept. of Environmental Regulation, 9 FALR at 1877. At the hearing, the Department introduced expert testimony that reasonable assurance had not been provided that the project would not cause violations of water quality standards and was not contrary to the public interest when the cumulative impact of reasonably expected future projects were considered. (Tyler, Tr. at 35-41, 49-51, 54-58, 60, 64 and 69) Dr. Peebles, who bore the burden of persuasion, introduced no competent, substantial evidence to show that when cumulative impacts had been considered the necessary reasonable assurances had been provided. 4/ Dr. Peebles argues that his project will only fill in 14.3 percent of his shoreline, and only increase the percentage of the lake's wetlands that have been filled to 31.6 percent from the already existing 30 percent. However, it is not the incremental increase that causes the project to be not permittable, it is the cumulative impact of reasonably expected future projects, and Dr. Peebles failed to carry his burden of persuasion as to the cumulative impacts. Since Dr. Peebles did not carry his burden of persuasion he was not entitled to the permit as a matter of law, and the Hearing Officer erred in concluding that the permit should issue. Therefore, the Department's exception is accepted. Cumulative Impacts The Department takes exception to the Hearing Officer's conclusion of law that: Application of the cumulative effect principle denies the applicant a permit because of the destruction of wetlands by other landowners. The lack of emphasis on enforcement creates a disincentive to comply with the state's regulation of the waters. If those landowners who illegally filled the waters of the state were required to restore the wetlands they destroyed, then new applicants also could fill small portions of wetlands to enhance their use of their property without worrying about cumulative effects. (Recommended Order at 6) At this point it may be helpful to explain the role of cumulative impact analysis. The Department is required to take into consideration the cumulative impacts of similar projects which are existing, under construction, or reasonably expected in the future. Section 403.919, Florida Statutes; Brown v. Department of Environmental Regulation, 9 FALR 1871, 1876 (DER Final Order, March 27, 1987) (cumulative impact analysis is mandatory). Cumulative impact is not a third test, but rather a factor to be considered in determining whether reasonable assurance has been provided that the project will not result in violations of water quality standards and will not be contrary to the public interest. Concerned Citizens League of America, Inc. v. IMC Fertilizer Inc., 11 FALR 4237 (DER Final Order, March 29, 1989). As my predecessor Secretary Tschinkel observed: Without the ability to consider long-term impacts of a project (in combination with similar projects in the area considered "reasonably likely"), DER would be helpless to prevent gradual worsening of water quality and piece-meal elimination of biological resources inflicted by a proliferation of small projects. Morales v. Department of Environmental Regulation, 7 FALR 4786 (DER Final Order, September 18, 1985). The cumulative impact doctrine was originally developed as policy by the Department. It was subsequently codified by the Legislature in 1984 as Section 403.919, Florida Statutes. Chipola Basin Protective Group, Inc. v. Dept. of Environmental Regulation, 11 FALR 467, 476 (DER Final Order, December 29, 1988). - The doctrine was approved by the courts in Caloosa Property Owners Association v. Department of Environmental Regulation, 462 So.2d 523 (Fla. 1st DCA 1985). The cumulative impact statute, Section 403.919, is entitled "Equitable distribution." As the title suggests, the purpose of cumulative impact analysis is to distribute equitably that amount of dredging and filling activity which may be done without resulting in violations of water quality standards and without being contrary to the public interest. In order to determine whether the allocation to a particular applicant is equitable, the determination of the cumulative impacts is based in part on the assumption that reasonably expected similar future applications will also be granted. It does not necessarily follow, however, that all similar future applications must be granted if the current application is granted. Although the Department must be consistent in its permitting decisions to the extent possible and consistent with the public interest, (Rule 17-103.160, Fla. Admin. Code) each future application must stand on its own merit and must provide anew the necessary reasonable assurances subject to cumulative impact analysis. Manasota- 88, Inc, v. Agrico Chemical Co., et al., 90 ER FALR 043 (DER Final Order 1 February 19, 1990). In this case Dr. Peebles argued and the Hearing Officer concluded that the application of cumulative impact analysis is inequitable because previous unpermitted and allegedly illegal filling of wetlands around the lake now results in permits being denied which would have been granted but for the previous filling. There was testimony that about 30 percent of the original wetlands around the lake had been filled in the past, (Tyler, Tr. at 67) that all of the past filling was unpermitted, and that some of it may have been illegal. (Tyler, Tr. at 46, 61-62, 66-67, 72) However, the record contains no competent, substantial evidence showing how much, if any, previous filling was illegal. Furthermore, Section 403.919(2) requires the Department to consider the impacts of "projects which are existing", and does not draw a distinction between legal or illegal projects. As to the Hearing Officer's recommendation that cumulative impacts not be considered in this application, I note that Section 403.919, Florida Statutes mandates that such an analysis be conducted for every dredge and fill permit. Section 403.919 states that "The department in deciding whether to grant or deny a [dredge and fill] permit for an activity which will affect waters, shall consider [cumulative impacts]." See also Brown, supra, 9 FALR at 1876 (cumulative impact analysis is mandatory). Therefore, to the extent that the Hearing Officer is recommending cumulative impact analysis not be applied to Dr. Peebles' application, the recommendation is contrary to the law and must be rejected. The issue then remains of how past fill, whether legal or illegal, should be considered in the cumulative impact analysis. The Hearing Officer's recommendation in effect would require the Department to conduct a cumulative impact analysis under the assumption that previously filled wetlands should be treated as functioning wetlands. If I were to accept this view it would require the Department to take enforcement action in every case or abandon the protection of water quality of certain waters of the state. Such an interpretation would strip from the Department's hands the ability to exercise its discretion in allocating its limited enforcement resources, and result in the Department's enforcement priorities being set by permit applicants rather than by the Department. I note that the record contains competent, substantial evidence that the Department lacks sufficient resources to enforce every violation, (Tyler, Tr. at 45) although such a fact scarcely needs proof. Acceptance of the Hearing Qfficer's recommendation would place the Department in the dilemma of having to choose to withdraw enforcement resources from more environmentally significant projects or to abandon altogether the protection of less significant projects. Acceptance of the Hearing Officer's conclusion of law would also result in requiring the Department in all cases to determine whether violations had occurred and to take enforcement action for prior violations before it could consider cumulative impacts. Aside from the lack of sufficient enforcement resources, such enforcement' proceedings seldom, if ever, could be commenced and completed within the 90 days within which the Department must act on an application. Section 403.0876, Florida Statutes. The result would in effect limit the scope of Section 403.919 to pristine water bodies, and render the statute largely meaningless. I cannot accept that the Legislature intended such interpretations of Section 403.919, Florida Statutes. Although the result of the application of cumulative impact analysis to the facts of this case may seem harsh, the record indicates that Dr. Peebles may still obtain access the waters of the lake by means of a private dock that would not even require a permit if it had 1000 square feet or less of surface area and met the other provisions of Rule 17-312.050(1)(d), Fla. Admin. Code. Dr. Peebles' existing planned dock is 452 square feet. Therefore, Dr. Peebles could extend that portion of the dock that bridges the wetlands to the uplands by an additional 548 square feet of surface area. For example, the four foot wide bridge to the dock could be extended an additional 137 feet, which is more than enough to reach the upland portion of the lot. (Joint Exhibit No. 1) For the reasons state above, I reject the Hearing Officer's conclusion of law and accept the exception. Public Interest Test The Department also takes exception to the Hearing Officer's conclusion that the project is not contrary to the public interest. In conducting the public interest test the Department must balance the criteria as specified by the Legislature. Section 403.918(2)(a) states: In determining whether a project is not contrary to the public interest, or is clearly in the public interest, the department shall consider and balance the following criteria: Whether the project will adversely affect the public health, safety, or welfare or the property of others; Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project; Whether the project will be of a temporary or permanent nature; Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of 5.267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity. The Department introduced evidence that criteria 1, 3 and 6 were neutral, (Tyler, Tr. at 54-56) that criteria 2, 4, 5 and 7 were negative, (Tyler, Tr. at 35-36, 54, 56, 57) and that when all the criteria were balanced there was a negative value to the project. (Tyler, Tr. at 57-58) Dr. Peebles argued at the hearing and in his response to exceptions that the Department's methodology in weighing each criteria in the public interest balancing test is incorrect. I disagree, and note that Dr. Peebles bore the burden of proof on the public interest test, and was free to introduce competent, substantial evidence on each criteria. As discussed in Part II above, Dr. Peebles did not introduce any competent, substantial evidence as to any of the above. The Hearing Officer's conclusion of law lacks competent, substantial evidence to support it, and is contrary to unrebuted competent, substantial evidence. Therefore, I reject this conclusion of law.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the application of Petitioner to place fill in the waters of the state be approved in accordance with the drawings submitted with the application. DONE and ENTERED this 28th day of February, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida1 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-3725 The Agency filed proposed findings of fact which were read and considered. The Agency's findings were adopted or rejected for the reasons indicated as follows: Paragraphs 1-10 Adopted Paragraph 11 Adopted that it will damage fishing; however, this damage will be insignificant and will not truly affect tee fishing on the lake. Paragraph 12 Adopted The Applicant's letter was read and considered as oral argument on the issues presented at hearings. COPIES FURNISHED: Mr. Dale H. Twachtmann Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Dr. Peyton Z. Pebbles, Jr. 6527 Northwest 42nd Place Gainesville, FL 32606 William H. Congdon, Esq. Office of General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 =================================================================
The Issue The Department of Environmental Protection seeks to impose costs and specific restoration requirements resulting from unpermitted dredging and filling by Respondent. Inherent in that issue are the following: Whether the property at issue was within the Department's dredge and fill jurisdiction at the time the property was filled; and The amount of the Department's costs, if any.
Findings Of Fact The parties' stipulated to the following facts: Petitioner agency has the authority to administer and enforce Chapter 403 F.S. and the rules promulgated thereunder, specifically Title 62 F.A.C., formerly Title 17 F.A.C. Respondent is the developer of a parcel of real property located in Section 10, Township 9 South, Range 27 East, Putnam County, Florida, known as Lot 85, Rio de St. John Subdivision, located at the northwest corner of the intersection of South Main and Southwest 6th Terrace. The property is a wetland area. On February 13, 1992, agency personnel inspected and found fill material had been placed on two areas of the parcel: an area approximately 88 feet by 83 feet for residential development (area 1) and an area approximately 83 feet by 25 feet for an access driveway (area 2). The fill material was placed by Respondent without a permit and covers 0.2 acres of the parcel. In Warning Notice WN-92- 0118-DF54 NED, dated February 17, 1992, the agency informed Respondent that its activities violated Chapter 403 F.S. and Title 17 F.A.C. Respondent has never applied for a permit and has proposed no mitigation for the filling done without a permit. Jack Dunphy is the supervisor of Petitioner's dredge and fill enforcement section for its Northeast District. He earned a B.S. in biology and has taken postgraduate courses in plant morphology, plant taxonomy (the identification of plants) and wetlands ecology. He has had further annual training by the agency in wetland plant identification. He was accepted as an expert in the identification of wetland species and agency enforcement procedures. At all times material, Mr. Dunphy used the version of Chapter 17-301 F.A.C. accepted as Joint Exhibit B in making his determination that the agency has dredge and fill jurisdiction of Lot 85. The Respondent contended that the agency had no dredge and fill jurisdiction because Lot 85 is an isolated wetland. At all times material, the rules did not place isolated wetlands within agency jurisdiction. See, specifically, Rule 17-312.045 F.A.C. The rules were amended effective July 1, 1994 to give the agency jurisdiction over isolated wetlands. Both parties place substantial reliance upon Rule 17-312.030(2)(d) F.A.C. which provided in pertinent part: For the purposes of this rule, surface waters of the state are those waters listed below and excavated water bodies, except for waters exempted by [rule], which connect directly or via an excavated water body or series of excavated water bodies to those waters listed below: * * * (d) rivers, streams and natural tributaries thereto, excluding those intermittent streams, tributaries or portions thereof defined in [statute]. Standard hydrological methods shall be used to determine which streams constitute intermittent streams and intermittent tributaries. An intermittent stream or intermittent tributary means a stream that flows only at certain times of the year, flows in direct response to rainfall, and is normally an influent stream except when the ground water table rises above the normal wet season level. Those portions of a stream or tributary which are intermittent and are located upstream of all nonintermittent portions of the stream or tributary are not subject to the dredge and fill permitting unless there is a continuation of jurisdiction as determined pursuant to [rule]. The agency used the procedures outlined in Chapter 17-301 F.A.C. to determine whether Lot 85 was connected either vegetatively or hydrologically to a named water body. Chapter 17-301 F.A.C. lists both the wetland plants and the method for determining dominance of those species. It is undisputed that, under the applicable rules, an area is connected vegetatively to a state water if there is a domination of wetland plants connecting the area to a named water body. It is undisputed that, under the applicable rules, an area is connected hydrologically to a state water if there is an open water connection from the area to a named water body. On the ground, an area may be physically connected to a state water either vegetatively (dominant named species) or hydrologically (by water). On the ground, an area may be physically connected vegetatively and hydrologically. Mr. Dunphy, on behalf of the agency, interpreted the agency's rules to establish a jurisdictional connection if an area is connected by a combination of water and vegetation. Respondent contended this is a clear misinterpretation of the agency's own rule. The agency's standard operating procedure at the time Respondent placed the fill was to interpret its rules in para materia to require that its personnel "ground truth" the area in question by first identifying surface waters (a named water body, in this case, Mason Branch and its unnamed tributaries) and proceed landward, by ground, to establish the connection. As long as there was water or dominant jurisdictional vegetation, the agency pronounced a jurisdictional connection. Mr. Dunphy determined that Lot 85 was dominated with wetland vegetation and that the water on that parcel flowed through a culvert under South Main Street and off to the east of the property. South Main Street is a dirt road which has been in place for approximately twenty years. South Main Street physically separates Lot 85, which contains jurisdictional vegetation, from jurisdictional vegetation growing to the east of South Main Street. It does not separate Lot 85 from the lot immediately north of Lot 85, which is also covered with jurisdictional vegetation. The water on Lot 85 and this adjacent lot drains through the same culvert, (hereafter culvert A) under South Main Street to the east. Mr. Dunphy drove through the area and identified what he considered to be an hydrologic connection between Lot 85 and an unnamed tributary of Mason Branch. There is no dispute that Mason Branch is a water of the state. It appears on maps going back to the nineteen-sixties. The unnamed tributary was identified on P-3, the United States Department of the Interior Geological Survey (USGS) Quad Map. Mr. Dunphy traced the tributary's approximate route in red on Exhibit P-3. Although Respondent succeeded in getting some witnesses to admit that the unnamed tributary could not be described as a "bubbling stream," witnesses Adams, Dunphy, and Eaton all testified to having seen on the ground what they were able to identify as, "an unnamed tributary of Mason Branch." As one responsible for enforcing the agency's dredge and fill rules, Mr. Dunphy commonly refers to aerial maps, USGS maps, wetland inventory maps, and aerial photographs to determine jurisdiction. Using such photographs and maps (P-2 and P-3), Mr. Dunphy indicated in red ink approximately how Lot 85 is connected to the Mason Branch tributary. In general, water flows from Lot 85 to the lot north of Lot 85 (designated with a blue 5 in a circle on P-2), through culvert A north of Lot 85 and under South Main Street, then through a wetland area marked by jurisdictional vegetation east of South Main Street where it connects to an excavated ditch. The excavated ditch turns to the north where it empties into another wetland area marked by jurisdictional vegetation, and then through culvert B under another dirt road. From there, the water flows through jurisdictional vegetation to the unnamed tributary connecting to Mason Branch. The water course from the end of culvert A to the beginning of the excavated ditch cannot be seen on P-2, an aerial photograph, because of the canopy of the wetland trees. The western beginning of the ditch is indicated by a blue 1 in a circle and the eastern end of the ditch is indicated by a blue 2 in a circle. Mr. Dunphy visited the vicinity of Lot 85 eight times between the agency's discovery of the unpermitted fill in 1992 and formal hearing in 1995. Each of the eight times Mr. Dunphy visited the site, water was flowing through culvert A running under South Main Street and Lot 85 was inundated. Water also was running through culvert B. On his first visit to the area, Mr. Dunphy walked from the eastern side of South Main Street, opposite Lot 85, into the woods and saw a small, approximately seven foot wide, defined channel where the water flowed over jurisdictional vegetation east to the ditch. He saw quite a bit of water through this area and water flowing through the channel prior to reaching the ditch. According to Mr. Dunphy, the area east of South Main Street but west of the ditch contained cypress and tupelo trees with buttressed (expanding out) trunks and water lines, lichen lines and moss lines which appeared to be above the level of the street due to periodic inundation of the area. This is the type of hydrologic indicator from which scientific judgment may conclude that inundation or saturation is frequent, whether or not a specific agency rule to that effect is in place. Indeed, it is fairly simple cause and effect logic, and therefrom the undersigned infers, that water in the area has frequently stood higher than the road and may have overflowed the road. Also, on a visit in the month preceding formal hearing, Mr. Dunphy observed that some of the dirt roads in the area were heavily washed out in places by high water. Mr. Dunphy's walking the parcel and tracing the runoff constituted "ground truthing." Because Respondent challenged agency jurisdiction, Mr. Dunphy requested that the agency's Jurisdictional Evaluation Team from Tallahassee also make a determination as to whether or not Lot 85 was within the agency's dredge and fill jurisdiction. The Jurisdictional Evaluation Team consisted of David Bickner, a botanist, and Dr. Jim Cooper, a soil scientist. Petitioner agency has assigned them the responsibility for making similar jurisdictional determinations around the state. As an expert in enforcement procedures, Mr. Dunphy regularly relies on the team's opinion concerning jurisdiction. He went to the area with the team during their ground-truthing inspection and relied on the team's report. The report also explains and supplements Mr. Dunphy's direct evidence. That October 26, 1993 report concluded from a visit to the site on October 19, 1993 that Lot 85 was within the agency's jurisdiction and listed the vegetation which connects Lot 85 to the unnamed tributary of Mason Branch. The report states, in pertinent part, as follows: The . . . property was inspected 19 October 1993. The property had been timbered recently and most of the canopy trees were gone. Those trees remaining were the same species as the trees on adjacent properties on all sides . . . which were covered with mature swamp hardwood forest. Many of the stumps on the . . . property were sprouting, so they could be identified to species and these were also the same as those on adjacent properties. The dominant canopy species on the adjacent properties were black gum (Nyssa sylvatica var. biflora) and bald cypress (Taxodium distichum). Other species present included dahoon holly (Ilex cassine), red maple (Acer rubra), and slash pine (Pinus elliottii). The gum and cypress tended to make up 80 to 85 percent of the areal coverage of the canopy, with dahoon and maple being the majority of the remainder. Much of the groundcover vegetation . . . consisted of invader species which had moved into the areas of fill. All other species present were wetland plants. A list of the plants found on this property is attached . . . The property was inundated at the time of the inspection. Water exited the property at its north- west corner through a culvert under South Main Street, flowing east into the swamp on the other side of the street. This swamp ran northeast and where it ended a ditch approximately 7 ft. wide turned north to connect to another swamp near Southeast Second Avenue. Water from this swamp passed under Southeast Second Avenue through another culvert and continued into another swamp on the north side of the road. This swamp ran north, turning gradually to the east where it connected to a tributary of Mason Branch. This point of connection was by means of a ditch which flowed through a wet hardwood hammock forest. Flow in all of these waterways was brisk at the time of the inspection and all points of connection were visited and inspected. Mason Branch is a water of the State, therefore all waterways and wetlands connected to it are also waters of the State . . . The property is vegetated by plant species which are currently listed in Sections 17-301.400(2) and Florida Administrative Code. (emphasis supplied) The agency concluded that Lot 85 is within the headwaters of a larger wetland area that constitutes the headwaters of the unnamed tributary of Mason Branch, a water of the state. In 1991, the Respondent had employed Mike Adams to analyze its property for purposes of planned development and to render advice as to what state and federal permits would be required. He visited the area six times and Lot 85 twice. He initially advised Respondent that Lot 85 and the other parts of the subdivision were located in wetlands subject to the jurisdiction of Petitioner agency and the Army Corps of Engineers, and that development required permitting by both those agencies and possibly by St. John's Water Management District. Mr. Adams has a B.A. in biology and an M.S. in environmental management. At the time of formal hearing, he was a Natural Resources Manager for the Florida National Guard. He is a Certified Environmental Professional. He was accepted as an expert in wetland plant identification. In his work as a private consultant for the Respondent, Mr. Adams had determined that Lot 85 was within the Department's jurisdiction. In making that determination, he analyzed whether or not Lot 85 was dominated by wetland plants. Then he determined whether or not the vegetative composition of the wetland plants on Lot 85 extended off-site. In determining that wetland plants were dominant both on-site and off- site, Mr. Adams employed the plant species and the method for determining dominance set out in the Department rules in effect at all times material. Lot 85 was covered with jurisdictional wetland plants such as cypress, sweet gum, black gum and red maples. In Mr. Adams' opinion, Lot 85 was within the Department's dredge and fill jurisdiction because it was part of a headwater wetland. In formulating his opinion, Mr. Adams walked the entire length of the connection between Lot 85 and the waters of the state, starting at culvert A crossing under South Main Street, through the wetlands to the east of South Main Street, along the excavated ditch, across the street to the north and as far as the unnamed tributary of Mason Branch. Mr. Adams drew the path of the connection beginning at the west end of the ditch shown on Petitioner's Exhibit P-2, an aerial photograph of a portion of Putnam County. On P-2, he designated Lot 85 with a green circle with an "85" in it and the culvert under South Main Street with the letter "A". The aerial photograph and oral testimony clearly demonstrated jurisdictional vegetation dominates between culvert A and the west end of the ditch, from the east end of the ditch to culvert B, parallel to both sides of the ditch for the entire length of the ditch. Mr. Adams also drew in green the path of the connection and outlined Lot 85 and designated it as such on P-3, the USGS Quad Map. Exhibit P-3 as printed by the Department of the Interior does not show a wetland connection. However, Mr. Dunphy and Mr. Adams are agreed that quad sheets like P-3 are not 100 percent accurate in identifying water courses. Mr. Adams never relies solely on quad sheets for determining and advising clients concerning Petitioner state agency's jurisdiction. In his expert opinion, the information on the quad sheets must be ground-truthed. In response to questioning as to why various exhibits did not show all the intervening property between Lot 85 and Mason Branch as "wetlands," Mr. Dunphy testified that the USGS maps only depict wetlands in a general way, both because of the scale and how they are created. The USGS Quad Map itself contains a disclaimer stating that its information is not field checked. "Field check" is synonymous with "ground truth." Mr. Dunphy further testified and pointed out that the National Wetlands Inventory Map created by the United States Department of the Interior (R-3) contains a similar disclaimer which specifically provides that map is not an indication of wetland extent as determined by other federal, state and local regulations. Mr. Adams determined that there was an intact vegetative connection for Lot 85 to the unnamed tributary of Mason Branch; that the excavated ditch was full of water and that the excavated ditch and/or the spoilage (earth thrown up parallel on either side of the ditch when it was dug) was also dominated with wetland plants covered by agency rule. More specifically, although the excavated ditch appears to start at the edge of the wetland area to the east of South Main Street on P-2, Mr. Adams' green markings demonstrated that it actually starts some distance into the wetland area. The ditch feathers out at both its west and east ends, but identifiable wetland vegetation links up to the hydrologic connection. Thus, in Mr. Adams' opinion, there was an unbroken chain of wetland vegetation from Lot 85 to the tributary of Mason Branch except for the roads, where the water (a hydrologic connection) flowed through culverts under the roads. At the time Mr. Adams walked the connection route, the area to the east of South Main Street had pockets of standing water but did not have water flowing through it. Although water was not flowing through the area, Mr. Adams concluded that water typically did flow through that area because of the depth of the standing water which initially caused him not to notice culvert A, which was overgrown, and because the plants present in that area were wetland plants. Admittedly, Mr. Adams was less than articulate when examined about the effects of seasonal rains, intermittent rains, and intermittent flow of the water on the ground, but he eventually made himself clear. He first testified that he thought the flow of water from Lot 85 was "intermittent," but he later clarified that he was not using that word as contemplated by the statute and rule. At one point, he testified that by "intermittent," he intended to mean "seasonal," but did not intend to also indicate that the connection met the definition of "intermittent stream" in the statute or rule. He was perfectly candid that the ditch on the east side of the road did not connect water body to water body but connected vegetation to vegetation and water ran through the ditch from vegetation to vegetation. He agreed that if "hydrologic connection" can only mean "water connecting to water" then there is no hydrologic connection between Lot 85 and the unnamed tributary. However, from the whole of his testimony, it is apparent that surface and ground waters are both involved; water flow depends upon rain regularly depositing water upland, and the water stands, flows slowly, or flows rapidly, dependent upon how deep the water gets, to the tributary; there is probably an exchange of waters with the tributary; this is not dependent upon a specific wet season but during drought periods, no flow will be observed. These explanations do not alter or diminish Mr. Adams' opinion that, applying standard scientific indicators of soil, vegetation composition and hydrology, there is a regular connection by surface and ground water between Lot 85 and the unnamed tributary. He was also definite that there was standing water in the whole area when he was there and that he interprets "isolated" as used in the rule to mean no hydrologic or vegetative connection whatsoever exists and that the water would have to exit Lot 85 without going to the water source (state water) only as a result of periodic flow, which he does not believe to be the situation here. Respondent's Exhibits P-4 and P-5 were videotapes. Respondent's witness, Jack Buchansky, was unable to independently identify most of the footage of either P-4 or P-5. Exhibit P-4 was irrelevant in large degree. At most, the two videotapes together show a single occasion shortly before formal hearing when South Main Street, Lot 85, and areas in the vicinity were dry, but even so, they show dirt roads with ditches parallel on each side containing standing water and vegetation. Standing water and vegetation also appear in the culvert shown and in the depression between tire tracks or ruts on the roads. The nature of the vegetation was not explained. Except for asserting that the dirt roads have been high and dry for 20 years and during hundreds of his visits and that water only flows in the ditches during heavy rains, Mr. Buchansky testified much to the same effect as the other witnesses: that the area across the street from Lot 85 (the same area identified by other witnesses with an X in a circle on P-2) was a natural drainage or spill area and that he never went back there because the water stands there after each rain; that the vegetation is the same throughout the area except for the barriers created by the roads; and that water drains away from his property toward the east by way of culvert A. The greater weight of all credible competent evidence is that jurisdictional vegetation grows on Lot 85; that jurisdictional vegetation grows on the lot to the north; that jurisdictional vegetation grows everywhere east of South Main Street, even in the man-made ditch and/or on the ditch's "spoil" connecting two patches of jurisdictional vegetation, and that the depressed water channel over vegetation between culvert A and the west end of the man-made ditch and the man-made ditch itself collect and funnel rain and ground water because each is lower than the surface soil; and that jurisdictional vegetation dominates from the east end of the ditch to culvert B and between culvert B and the tributary. The roads create a barrier to jurisdictional vegetation, but the culverts carry the water between the areas of jurisdictional vegetation. Wherever the water goes, it is possible for seeds to travel and propagate dominant plant species, dependent upon which plants are involved, and the water flows regularly to the tributary. Unrefuted competent testimony shows that restoration of Lot 85 is necessary because Respondent's fill has caused the wetland to lose some of its functions, including filtering ability, habitat for wildlife dependent on the wetlands, and water storage for flood control. Appropriate restoration will require that the fill be removed to the original grade and that a mixture of red maple, cypress, dahoon holly, tupelo and gum trees be planted. The trees should be three-gallon size. The cypress and tupelos should be planted in the lowest areas and the red maples should be planted in the highest areas. Mike Eaton was accepted as an expert in the agency's dredge and fill procedures and permit criteria. He visited the site with Mr. Dunphy to determine whether the fill on the property could be permitted. He concluded it could not be permitted without mitigation. The agency prepared an exhibit itemizing expenses it claimed to have incurred in the course of its investigation. The exhibit was not listed in the Joint Prehearing Stipulation and some parts of it may have applied to charges dropped when the charging document was amended. It was not admitted in evidence over objection. Mr. Dunphy testified that he totalled reasonable expenses at $981.16, but his breakdown of what the expenses were and how they were incurred was insufficient to relate the agency's financial expenditures to the sole charge remaining after the amendment. Respondent did not diminish that figure through cross-examination, but stipulated that $250.00 constituted the Department's reasonable expenses.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order finding Respondent guilty of the charged violations and requiring: That Respondent shall, within thirty days of the final order, remove from Lot 85 all fill from the Property, which has been placed within the landward extent of the Tributary of Mason Branch in accordance with the restoration plan, attached and incorporated as Exhibit I in the Amended Notice of Violation. All fill shall be removed down to natural, pre-fill elevations and gradings, and shall be disposed of in a site approved by the Department; and Within thirty days of the fill removal, Respondent shall plant a mixture of red maple, cypress, dahoon holly, tupelo and gum trees, spaced 10 feet apart. The trees should be three-gallon size. The cypress and tupelos should be planted in the lowest areas and the red maples should be planted in the highest areas. Within thirty days of the fill removal, Respondent shall tender $250 to the agency as costs. RECOMMENDED this 15th day of August, 1995, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 15th day of August, 1995.
The Issue This proceeding concerns a Consent Order entered into by the Department of Environmental regulation (DER), and James and Patricia Gratzer (Gratzers) regarding an allegedly unpermitted fill in Winter Springs, Florida. The ultimate issue for determination is whether DER abused its discretion in resolving the alleged violations by entering into the subject Consent Order.
Findings Of Fact In the fall of 1990, the Gratzers purchased a 4.35 acre lot located at 216 Stoner Road in Winter Springs, Florida. At the time of purchase, the Gratzers planned to divide the lot and build a residence on the two acre parcel. In preparation for construction of their new home, the Gratzers approached the Winter Springs City Council to subdivide the property and to approve of use of the fill road as ingress and egress for both lots. In February of 1991, the Gratzers and their builder obtained the proper building permits from the County and septic tank permits from the Department of Health and Rehabilitative Services. Construction began on the residence on April 9, 1992 when the Gratzers' builder brought in several trucks of dirt to the end of the existing fill road to begin the house pad. At the time the Gratzers began construction on the subject lot, they had no idea or reason to believe that they were about to build in jurisdictional wetlands of the State of Florida. On approximately April 14, 1992, the Gratzers were first made aware that they may have problems with potential wetlands on the property when an officer of the Game and Fresh Water Fish Commission visiting the site instructed the builders to halt construction, pending a review by DER. As a result of the site visit, the Gratzers investigated further with DER employees the potential wetlands on their property. They also sought the advice of an attorney and his environmental consultant regarding possible ways to solve DER's concerns. On approximately April 26, 1991, an employee of DER visited the site and made an initial determination that the property was a jurisdictional wetland subject to permitting by DER. Under present rules the Gratzer property, with exception of the filled access road, would all be in DER jurisdictional wetlands if only the natural vegetation were considered. Upon being informed of DER's initial determination, the Gratzers hired an engineer from Boyer-Singleton & Associates to make an engineering determination as to the extent of jurisdictional wetlands based upon a ten-year backstop. A ten-year backstop is a method provided by statute to determine the ultimate landward extent of DER's vegetational jurisdictional line. It is a hydrological calculation to determine water elevation levels in a certain area, subject to the ten-year recurrent storm event. By rule and statute, DER's jurisdiction over wetlands effectively stops at the upper end or limit of the ten-year flood elevation line. Claude Cassagnol, of Boyer-Singleton and Associates, an expert in hydrology, reviewed available materials, visited the site and made an initial determination of the ten-year backstop on the Gratzers' property, and ultimately mapped out his conclusions on a plat. Mr. Cassagnol's hydrological study, and his review of Federal Emergency Management Agency (FEMA) materials, led him to conclude that the ten-year backstop would leave the Gratzer's house pad out of any DER jurisdictional wetlands. As a result of his study, Cassagnol forwarded several letters to George Baragona of DER requesting that Mr. Baragona, an expert hydrologist, review his determination and ratify his conclusions. The Gratzers, on advice of counsel, allowed their building contractor to complete compaction of the house pad and begin preparations to pour the house floor. The septic tank contractor for the Gratzers completed installation of the tank and drain field prior to July 1st. After the Gratzers had recommenced construction, on approximately July 10, 1992, DER, issued a Notice of Violation (NOV) which ultimately formed the basis for the Consent Order in this case. The Gratzers immediately ceased further construction on the property and sought further negotiations with DER. Shortly after the NOV was issued, George Baragona reviewed the information, studies and plats submitted by Mr. Cassagnol regarding the ten-year backstop. Baragona made a determination of the ten-year backstop at a point more landward than Cassagnol's. It appears from the plat submitted at hearing, that Baragona's ten- year backstop line runs along the base of the fill roadway; his testimony, however, indicated that his backstop line dipped in and out near the roadway, and he simply chose the baseline of the fill road as his "worst case scenario". Baragona, because of the house pad, was required to extrapolate a line through the house pad, resulting in approximately half of the house pad area being in jurisdictional wetlands. The result of further negotiations between the parties was the Consent Order which is the subject matter of this proceeding. As settlement, the Gratzers agreed to Baragona's "worst case scenario" ten-year backstop, placing approximately half of the house pad was in DER jurisdictional wetlands. As part of the settlement, the Gratzers agreed to, and have paid, a fine of $1,400.00 to DER and have granted a conservation easement over a large portion of the remainder of their property, resulting in an 11.6 to 1 ratio of conservation easement to impacted wetlands, slightly above DER's guideline 10 to 1 ratio. In investigating the alleged violations at the subject property, DER reviewed the cumulative impacts of the project and determined that they were not great, in light of the surrounding area and its already high level of development. In making this determination, DER reviewed property lists, maps and other facts to determine the level of current development. In reviewing the alleged violations, DER also considered whether or not this project would have been able to get a permit had the Gratzers sought a permit prior to any construction. It was DER's determination that the project would have been permittable under the criteria in Chapter 403, in conjunction with the mitigation offered at the site. Finally, in its review and study of the alleged violations, DER determined there was no evidence that this project would have any adverse impact on water quality. DER made a determination that this was a "low to medium" violation, and that the impacts were properly addressed through the Consent Order which imposed the $1,400.00 fine and secured the conservation easement. Fill Road Issue A small road or driveway existed on the site at the time the Gratzers purchased the property, extending from Stoner Road from the south, to the center of their property. Although Baragona indicated the DER modelled backstop line did not always extend to the driveway, he said it sometimes appeared to "bump up" to the eastern edge of the driveway. Baragona could not say with absolute certainty where the 10 year backstop would be on the east side of the site if the driveway were not present. The type of wetland vegetation on the Gratzer property would be considered jurisdictional wetland vegetation under rules adopted pursuant to the 1984 Warren F. Henderson Wetlands Act (Section 403.91, et seq.), but would not be considered jurisdictional wetland vegetation under rules applicable prior to October 1, 1984. If the driveway on the Gratzer property was installed prior to October 1, 1984, it is legal, but if it was installed after that date it is illegal because there is no evidence it ever was properly permitted. DER does not allow illegally filled areas to cut off the extent of its wetland jurisdiction. Therefore, if the driveway on the Gratzer property were placed in DER jurisdictional wetlands without a permit, the road itself could not act as a 10 year backstop cutting off DER wetland jurisdiction to the west. There was conflicting evidence as to when the driveway was placed on the property. James Hartman, who sold the property to the Gratzers, testified he built the driveway in 1978 and 1979. William Kuyper, an expert in aerial photography interpretation, testified that based on his review of aerial photos, the road had been placed on site sometime between January 6, 1986, and March, 1989. The weight of the evidence indicates the driveway was probably placed on site before October 1, 1984, and therefore did not require a DER permit. First, the former landowner's testimony that he built the road in 1978 and 1979, must be considered more reliable than an interpretation of aerial photos taken from 12,000 feet in the air, in spite of the expertise of the photographic interpreter. A possible explanation for why the driveway "appeared" in the 1989 aerial photo but not in the 1986 aerial photo is that the road may have been disturbed, or new fill put on the road sometime between 1986 and 1989, causing the road to be more visible in 1989. Even if the 10 year backstop were to be determined without the driveway present, it would not be significantly different. While DER's 10 year backstop line "bumps up" against the road in places, it does not "bump up" in other places along the driveway, but in order to be conservative the line was placed along with driveway in all areas. The modelled location of the line north of the housepad where there is no driveway is consistent with where the line is modelled south of the housepad where the driveway is located. The Society and its Concerns The Society's corporate status was not controverted. CFWS members have been patrolling the Lake Jessup/Gee Creek area and other wetland areas and have found what they believe are violations of the law and rules intended to protect wetland resources. Although neither Michael Mingea nor his expert witness have been on the Gratzer property, they have been in the immediate area and are concerned about the cumulative impact of small dredging projects, like the Gratzers, which projects are routinely reported to DER by the Society. Beginning in May 1991, the Society corresponded regularly with Secretary Browner at DER and Secretary Williams at the Department of Health and Rehabilitative Services (HRS) and their respective staffs, regarding what the Society perceived were violations occurring through lax enforcement. The Society believed, though review of HRS and DER files, that the Gratzers' project included a septic tank placed in jurisdictional wetlands. This was not established; rather, the septic tank was erroneously placed inside a setback line, but outside the jurisdictional line, and a variance was readily obtained from HRS. DER does not have direct jurisdiction over septic tank permits and HRS' authority is derived from the statutes, not from DER. The Society's position regarding the Gratzer project is based in substantial part on its assertion that the fill road was illegally placed and that DER's jurisdiction extended through the entire property. The Society, however, did not rebut the sound evidence by George Baragona of the 10-year backstop. Nor did it present competent evidence of any alleged water quality violations. Only one other actual violation of permit requirements was established, and DER has required the developer to move the project from jurisdictional wetlands.
Recommendation Based on the foregoing, it is hereby, recommended that the Consent Order that is the subject of this proceeding be adopted as Final Agency Action. RECOMMENDED this 24th day of July, 1992, in Tallahassee, Leon County, Florida. MARY CLARK 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 24th day of July, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-0104 The following constitute specific rulings on the findings of fact proposed by Petitioners: 1.-3. Adopted in preliminary statement and paragraph 19. 4. Adopted in substance in paragraph 5. 5.-6. Rejected as unnecessary. 7.-8. Adopted in substance in paragraph 14. 9.-12. Rejected as unnecessary. 13. Adopted in part in paragraph 20, otherwise rejected as unnecessary. 14.-16. Rejected as unnecessary. 17.-18. Rejected as contrary to the evidence. 19. Rejected as contrary to the greater weight of evidence. 20.-22. Rejected as unnecessary. 23.-25. Rejected as contrary to the evidence. 26. Rejected as unnecessary. 27.-30. Rejected as contrary to the evidence. 31.-32. Rejected as summary of testimony or argument, rather than findings of fact. 33.-34. Rejected as contrary to the weight of evidence. 35.-36. Rejected as unnecessary. 37. Rejected as contrary to the evidence. [Section VI, pp 19-22 includes unnumbered paragraphs summarizing testimony, rather than findings of fact]. COPIES FURNISHED: Michael W. Mingea, President Central Florida Wetlands Society P.O. Box 2826 Orlando, FL 32802 Rex D. Ware, Esquire P.O. Box 1794 Tallahassee, FL 32302 Douglas H. MacLaughlin, Esquire DER-Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary DER-Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. DER-Twin Towers Ofc. Bldg. 2600 Blair Stone Road Tallahassee, FL 32399
Findings Of Fact On June 26, 1986, the Department of Environmental Regulation (DER) issued a permit, No. 661168901, to Elizabeth R. McSheehy authorizing construction on the shore of Choctawhatchee Bay of a seawall 165 feet long and eight feet high "faced with rip-rap . . . and backfilled with 18 cubic yards of sand fill . . . in accordance with [an] attached map and drawing." Joint Exhibit No. 1. The permit application had proposed that the seawall "TIE INTO MR. HEATH['S] SEAWALL," and the attached drawing indicated a point of beginning along the seawall already protecting the lot to the east, then owned by Mr. Heath, now owned by Prentice M. Thomas. The drawing has no compass rose and does not specify the angle of either leg of the permitted seawall. The construction permit expired December 30, 1987 (well beyond the 120 days within which the application indicated it would be necessary to complete construction, once begun.) At hearing, the parties stipulated that Ms. McSheehy had erected or caused to be erected a seawall at the location permitted on or before December 30, 1987. DER does not dispute that the seawall functioned as such when built. Seawall Fails Ms. McSheehy received a letter from Mr. Thomas dated June 6, 1990 (in an envelope postmarked June 22, 1990) stating, "I recently visited my lot at Four Mile Post and regret to inform you that the seawall you installed on your property has been demolished by the winter and spring storms." Petitioner's Exhibit No. 2. The letter reported that her "lot was eroding at a rapid pace." Id. Afraid that his own lot would be affected, despite its well-maintained seawall and rip-rap he had added, Mr. Thomas "beseech[ed her]. . . to take action to arrest the erosion of [he]r shoreline." Petitioner's Exhibit No. 2. The lot west of Ms. McSheehy's has no seawall. T. 48. Its shoreline had also eroded, judging from photographs in evidence. Soon after receiving the letter, Ms. McSheehy inspected the property for the first time since the summer before. She found the piles on which the seawall had been constructed in 1986 or 1987, now standing as far as 30 feet out in the bay. Only the eastern 20 or 30 feet of the seawall remained intact. Remnants, including individual boards and wall fragments comprised of as many as four boards had washed up on the receded shoreline. When DER's James Eric Buckelew happened on the site on July 26, 1990, he concluded from the erosion that the seawall had ceased to function as such some months before. Bay waters reached 20 or 30 feet further inland, covering about a tenth of an acre landward of what remained of the seawall. Mr. Buckelew took photographs of the site. Petitioner's Exhibit No. 1. Seawall Now in Bay Before the month ended and apparently before anybody from DER communicated with Ms. McSheehy, the seawall was rebuilt in its original location. No additional fill has been placed landward of the seawall, which now has water on both sides. In various trips to the site and otherwise in responding to this turn of events, DER has expended at least $245.37. DER advised Ms. McSheehy that a permit could be issued for construction of another seawall along what seems to be the new mean high water line, but that she had acted illegally in having the seawall restored at a location now some 20 or 30 feet out in the Bay. (T. 115). After first applying for and receiving a permit to remove the existing seawall and construct a new one further landward, she took the position that restoration of the original seawall had been lawful, and these proceedings ensued.
Recommendation It is, accordingly, RECOMMENDED: That DER make final its proposed orders for corrective action, unless within a reasonable time DNR conveys or leases to respondent the property lying between the seawall and the mean high water line. DONE AND ENTERED this 24th day of February, 1993, in Tallahassee, Florida. ROBERT T. BENTON, II 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 24th day of February, 1993. APPENDIX TO RECOMMENDED ORDER CASE NO. 91-7281 Petitioner's proposed findings of fact numbers 2, 3, 5, 6 and 12 have been adopted, in substance, insofar as material. With regard to petitioner's proposed finding of fact number 1, the permit issued in 1986, but it is not clear that construction was accomplished in 1986. With regard to petitioner's proposed finding of fact number 4, the seawall failed sometime between the summer of 1989 and the spring of 1990. With regard to petitioner's proposed findings of fact numbers 7, 8, 9, 10 and 11, use of the word "unauthorized" renders these proposed conclusions of law. Respondent's "proposal for the ruling of the hearing officer" did not contain separately numbered proposed findings of fact. COPIES FURNISHED TO: Virginia B. Wetherell, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Richard L. Windsor, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Elizabeth R. McSheehy 516 Mooney Road Fort Walton Beach, Florida 32547
Findings Of Fact Background Respondent Telese is the owner and developer of Egret Woods Subdivision on real property contiguous to state waters in Pinellas County, Florida. The property is near the incorporated areas of Indian Shores and Largo. A residential subdivision borders the project locale to the east, and tidal mangrove swamps fringe the property to the west. An intracoastal connecting waterway known as the "Narrows" lies to the west of the swamps. These state waters connect Boca Ceiga Bay and Clearwater Harbor. The proposed subdivision area is an upland strip between the existing subdivision and the tidal swamp adjacent to the "Narrows". The uplands are predominantly vegetated by live oak, saw palmettos and slash pines. In order to develop the property, and to reconfigure lots from a previously platted subdivision, Respondent Telese applied for a permit from DER to fill 0.12 acres of DER jurisdictional wetlands located at the development site. The application for the permit represents that 340 cubic yards of clean, non-deleterious sandy loam is needed to fill disturbed high marsh areas and other low areas on the proposed lots. Respondent Telese has also requested permission to install culverts in the two conveyance/mosquito ditches that run through the lots before they reach their discharge points outside of the proposed lot lines. The Petitioners are owners of single-family homes within the subdivision to the east known as Whispering Pines Forest, 5th Addition. These property owners filed a Petition in which they disputed the appropriateness of the Notice of Intent to Issue filed by DER on August 21, 1990. In support of their position, the Petitioners identified a number of areas of controversy they contend should cause DER to reverse its preliminary decision to grant the "dredge and fill" permit on this project. Elimination of Natural Drainage The first area of controversy is the Petitioners' contention that their interests are substantially effected by the elimination of natural drainage from their subdivision into the uplands referred to as Egret Woods Subdivision. The entire area was owned by the same developer prior to the creation of Whispering Pines Forest 5th Addition. Essentially, the Petitioners allege that a subservient estate was created on these adjacent lands for their surface water drainage purposes which the proposed development eliminates. A review of the Notice of Intent to Issue reveals that culverts are to be placed in two of the open conveyance ditches currently transporting surface water runoff from Whispering Pines Forest 5th Addition through the uplands of Egret Woods into the wetlands. While this proposed change in the means of conveyance of the surface water may not affect the volume of water conveyed, it could adversely effect the quality of the water at the discharge points into the wetlands. At hearing, the Petitioners were unable to clearly articulate their concerns about this water quality issue. However, it is intricately interwoven into the surface water management issues. The water quality concern was obliquely referred to in the Biological and Water Quality Assessment Report where DER's application appraiser commented that the proposed conservation easements and the mitigation plantings, which replace the high marsh removed for lot reconfiguration, are sufficient to offset the potential adverse impacts of the requested fill and culvert changes to the existing water quality at the project site. Although this particular water quality issue was properly addressed by DER in its review of the permit application, it was not clearly set forth in the Notice of Intent to Issue. There is no way for a person whose substantial interests are affected by the proposed permitting decision to determine that DER had considered mitigation measures to prevent this adverse effect. A decrease in surface water quality would have been caused by the marsh elimination and the placement of culverts if the marsh had not been replanted, and other mitigative measures had not occurred at the locale. The Petitioners properly requested a formal administrative hearing to address surface water management issues as DER's consideration of the matter was not made clear to them in the Notice of Intent to Issue. The written report that discusses water quality as it relates to the mitigation plan was provided to Petitioner's post-hearing, after a copy of the written appraisal was sent to the Hearing Officer and all parties by DER. Planned Roadway The second area of controversy is the Petitioner's concern about the effects of the planned roadway on their properties. As the planned roadway involves the county, it is not a matter considered in the dredge and fill permit. Neither DER nor the Hearing Officer has subject matter jurisdiction. The Petitioners did not pursue this area of controversy or the road location at hearing based upon the Hearing Officer's ruling that it was not relevant to this permit review. High Water Mark and the Setting of the DER Jurisdictional Line The third area of controversy raised by Petitioners involves their collective concern about a variance in the height of the Mean High Water Line on the property on different documents presented to different agencies. The current survey for DER completed by the surveyor shows the Mean High Water Line at 1.16, while the survey submitted to Pinellas County in 1981 from the same surveyor reads the Mean High Water Line at 1.25. This was explained at hearing by the surveyor. It was his opinion as a professional surveyor that there is no basic difference between these two mean high water lines. Since the survey to the county in 1981, the Mean High Water Line has varied between 3 - 3 1/2 feet in some areas. The same methodology and simple mathematical formula was used by him during the two different surveys which were about eight years apart. The difference in the two surveys is within the tolerance level accepted within the industry and needs no further reconciliation. As a correlative issue, Petitioners raise a concern about the change in DER's jurisdictional line on various documents involving this same site over a number of years. DER's jurisdictional lines have changed since the "Hendersons Wetland Act" enacted on October 1, 1984. The jurisdictional line as depicted on this permit application was established by dominant plant species as defined in Rule 17-301.400, Florida Administrative Code, just prior to the application submission. This was the correct way to determine jurisdiction on the property at this particular point in time. Although the mean high water line may have been determinative of DER's jurisdiction on earlier permits, only the current law applies to the facts of this case. DER reviewed the jurisdictional lines as depicted on the property by Respondent Telese's consultant and found them to be properly placed during the processing of the permit application. Historical DER jurisdictional lines and permit reviews are irrelevant to this permit review as it is based upon the agency's current rules the applicable statutory criteria, and current site conditions. Fill Calculations The fourth area of controversy involves the Respondent's request to place fill on the site. When Petitioners used an engineer's scale to measure the areas to be filled on the permit drawings, their volume calculations reveal that more fill will be needed than represented on the permit application. Petitioners are concerned that this error could cause DER to approve a permit which does not accurately depict site conditions. The actual fill calculations were done by the professional engineer with a computer model based upon average elevations, depth and area. In his professional engineering opinion, his calculations were accurate, which was given great weight by the Hearing Officer. The drawings used by the Petitioners to calculate the required fill for the area were pictorial communications of what the Respondent Telese intended to accomplish at the site. These drawings were designed for descriptive purposes only and were not scaled to the extent that they could be accurately used for fill calculations in the manner applied by Petitioners. The computer modeling used by the professional engineer was the more prudent approach to the on-site fill requirements. De Novo Permit Review Although the wetlands resource permit requested by Respondent Telese is commonly referred to as a "dredge and fill" permit, there is no dredging associated with the project. The proposed placement of fill in the high marsh area of tidal wetlands on the property and the culvert placement requires construction activity in Class III Waters. Water quality impacts to the area will be a short term problem as water turbidity should take place only during construction. Specific conditions regarding construction techniques have been placed in the permit as permit conditions to minimize the impacts. There is no factual dispute as to whether the proposed conservation easement, the replacement and enlargement of the high marsh in another location, the removal of exotics such as Brazilian Pepper trees, and the planting of black mangroves will sufficiently mitigate the adverse impacts on water quality and the public interests at the proposed development. Without the replacement of the disturbed high marsh with high marsh plantings at a 1.91:1 ratio, the enhancement of the property through exotic removal, and the conservation easements at a 132:1 ratio, the Respondent Telese is unable to provide reasonable assurances that the project is not contrary to the public interest under the statutory criteria established in Section 403.918, Florida Statutes. The proposed project will not adversely affect the public health, safety, or welfare or the property of others. The flooding anticipated by the Petitioners is speculative, and has not been directly related to the fill placement and the culverts in the two conveyance/mosquito ditches. Conservation of fish and wildlife and their habitats, will not be adversely affected due to the high marsh replacement and the fact that the area provided only marginal wetland habitat prior to the permit application due to the invasion of exotics at the site. Any impact from the proposed project on this public interest criterion is offset by the mitigation plan. The project will not adversely affect fishing or recreational values or marine productivity in the vicinity of the project. The proposed plantings of black mangroves and the removal of exotics, along with the new high marsh swamp should enhance the productivity of the area. No future projects of a similar nature can be developed at this locale due to the conservation easements the Respondent Telese has consented to provide over the remaining undeveloped property owned by him in the area. These easements will allow the Department to limit and control activities that may be undertaken in these tidal waters to prevent degradation of the site from an environmental standpoint. The mitigation planting schedule provides reasonable assurances that water quality standards will not be violated in the area as a result of culvert placement in the two conveyance/mosquito ditches that transport surface water to Class III waters of the state. Balancing of Interests In the "dredge and fill" permit application appraisal, site review, and Notice of Intent to Issue, DER considered and balanced all of the required statutory criteria to determine that the project is not contrary to the public interest or applicable water quality standards. Area of Controversy All of the areas of controversy raised by the Petitioners which are within the Division of Administrative Hearings' jurisdiction, have been sufficiently met by the reasonable assurances of Respondent Telese and the permit conditions required by DER. Based upon the evidence presented at hearing, it is concluded that the harms anticipated by Petitioners will not occur. Recommendation Regarding the Assessment of Attorneys Fees and Costs Petitioners did not participate in this proceeding for an improper purpose. The Notice of Intent to Issue was vague as to how interests were balanced and how the mitigation would offset the adverse impacts that concerned Petitioners. The petition was filed and prosecuted in good faith and addressed legitimate concerns of concerned citizenry who reside on adjacent lands.
Recommendation Based upon the foregoing, it is recommended: That a Final Order be entered approving Respondent's Telese's dredge and fill permit number 521715273, pursuant to the Notice of Intent to Issue filed August 21, 1990. That Petitioners should not be assessed attorney fees and costs as they did not participate in these proceedings for an improper purpose. RECOMMENDED this 28th day of June, 1991, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7035 Petitioners' proposed findings of fact are addressed as follows: Accepted. See HO #11. Rejected. Does not allow for change in seasons or conditions. See HO #11. Accepted. See HO #11. Accepted. See HO #15. Accepted. Rejected. Not within Hearing Officer's subject matter jurisdiction. Irrelevant to this proceeding. Accepted. See HO #3. Respondent Telese's proposed findings of fact are addressed as follows: Accepted. See HO #1, #2 and #18. Accepted. See HO #1, #2, #20 and #23. Accepted. See HO #20 and #21. Accepted. See HO #21. Accepted. See HO #22 - #27. Accepted. See HO #13 and #16. Denied. Contrary to fact. See HO #4 - #17. DER's proposed findings of fact are addressed as follows: 1. Accepted. See HO #1 and #2. 2. Accepted. See HO #1. 3. Accepted. See HO #1 - #3. 4. Accepted. See HO #2, #18 and #20. 5. Accepted. See HO #20, #21 and #24. 6. Accepted. 7. Accepted. 8. Accepted. 9. Accepted. 10. Accepted. 11. Accepted. 12. Accepted. 13. Accepted. 14. Accepted. 15. Accepted. 16. Accepted. 17. Accepted. See HO #19. 18. Accepted. 19. Accepted. See HO #19. 20. Accepted. See HO #21. 21. Accepted. See HO #18. COPIES FURNISHED: Ines D. Degnan 8410-144th Lane North Seminole, Florida 34636 David R. Chirington 8400-144th Lane North Seminole, Florida 34646 Alton Jeffcoat 8340-144th Lane North Seminole, Florida 34646 Carol B. Newton 8450-144th Lane North Seminole, Florida 34646 Steven M. Siebert, Esquire JOHNSON BLAKELY POPE BOKOR RUPPEL & BURNS, P.A. 911 Chestnut Street Clearwater, Florida 34616 W. Douglas Beason, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Carol Browner, Secretary Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400
