The Issue Whether the Respondent committed the acts alleged in the Administrative Complaint.
Findings Of Fact District is a governmental agency of the State of Florida created and empowered by Chapter 373, Florida Statutes, to regulate permitting and construction of water wells, and to regulate well contractors. William Bedard, Post Office Box 545, Branford, Florida 32208, is a water well contractor with license #2830. Bedard constructed a water well for Wendell Forsythe in Three Rivers Estate, Township 6 South, Range 15 East, Section 25 in Columbia County, Florida. This is within the District. Said well was a four inch water well. Said well was constructed sometime prior to July 11, 1991. Bedard applied for a permit from the District on July 11, 1991. District requested additional information from Bedard by telephone on July 11, 1991, and followed up with a letter which was mailed March 23, 1992. The additional information in the form of a survey was provided to the District on May 22, 1992. The District issued a permit for said water well on June 16, 1992, approximately 11 months after the well was drilled. Bedard had one previous violation for drilling a water well without a permit. He applied for and received an after-the-fact permit in that instance. In mitigation, Bedard offered the following facts: Wendell Forsythe (Forsythe) lives in South Florida and only comes to his property in Columbia County on weekends. Forsythe met with Bedard on the site to discuss the proposed well. Forsythe said he wanted to go forward, and Bedard advised Forsythe that he would begin on Monday after he obtained a permit from the District Office which was closed. Forsythe wanted to see the work done, and told Bedard that he would get another contractor if Bedard would not start the well right away. Bedard constructed the well and applied for a permit on the first working day after construction of said well. Before Bedard constructed the well, Forsythe told him that the site was not within the flood plain and a survey would not be required. The site was within the flood plain, and a topographic survey was required. The District asked Bedard for a survey. Bedard passed the request for the survey on to Forsythe, however, Forsythe did not provide this information until May of 1992 when he became aware that he might be liable. The District's attorney's fees and administrative costs were $970.00.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: A penalty be assessed against the Respondent in the amount of $275, and and Two and one half points be assessed against the Respondent's license, No attorneys fees or costs be assessed through this administrative hearing process. DONE and RECOMMENDED this 3rd day of November, 1992, at Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1992. COPIES FURNISHED: Janice F. Bessinger, Esquire 10 North Columbia Street Lake City, FL 32056-1029 William Bedard Post Office Box 545 Branford, FL 32208 Jerry Scarborough, Executive Director Suwannee River Water Management District Route 3 Box 64 Live Oak, FL 32060
The Issue The issue to be determined by this Order is whether the Request for Administrative Hearing filed by Petitioner with the Department of Environmental Protection (“DEP”) on February 15, 2013, was timely1/ and, if not, whether the application of the doctrine of equitable tolling would serve to relieve Petitioner of the consequences of having failed to file a petition for hearing within the time allotted by applicable notice provisions.
Findings Of Fact The Parties Petitioner, SRQUS, LLC, is an active Florida, limited- liability corporation, and is the owner of submerged lands and adjacent upland property contiguous to Sarasota Bay. Petitioner is a closely held entity, the only members being Achim and Erika Ginsberg-Klemmt. Respondent, Department of Environmental Protection, is an agency of the State of Florida having jurisdiction for permitting Municipal Separate Storm Sewer Systems (MS4), including duties as a federally-approved state program for the implementation of the Federal National Pollutant Discharge Elimination System (NPDES) Program, pursuant to authority conferred under section 403.0885, Florida Statutes. Respondents, Sarasota County, City of Sarasota, City of Venice, Town of Longboat Key, and Department of Transportation (“DOT”) (collectively the “Applicants”) are responsible for certain existing stormwater point-source discharges to waters of the state from those portions of MS4 facilities owned or operated by one or more of the individual Applicants. The DEP issued a notice of proposed agency action to issue a renewal of an existing MS4 Permit to the Applicants. On January 30, 2013, Sarasota County arranged for the notice to be published in the Sarasota Herald-Tribune, which is a newspaper of general circulation in Sarasota County. The notice provided as follows: STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION NOTICE OF INTENT TO ISSUE PERMIT AND REQUEST FOR ADMINISTRATIVE HEARING The Department of Environmental Protection gives notice of its intent to issue a permit to Sarasota County, 1660 Ringling Boulevard, Sarasota, Florida 34236 within its jurisdiction and including the following co- permittees: Florida Department of Transportation District One, Town of Longboat Key, City of North Port, City of Sarasota, and City of Venice, for renewal of a Municipal Separate Storm Sewer System [MS4] permit. Any person whose substantial interests are affected by the proposed permitting decision of the Department may petition for an administrative hearing in accordance with Sections 120.569 and 120.57 of the Florida Statutes (F.S.). The petition must contain the information set forth below and must be filed (received) in the Department of Environmental Protection, Office of General Counsel, Mail Station 35, 3900 Commonwealth Boulevard, Tallahassee, Florida 32399-3000. Petitions must be filed within fourteen days of publication of this public notice or within fourteen days of receipt of the notice of intent, whichever occurs first. A petitioner must mail a copy of the petition to the applicant at the address indicated above, at the time of filing. The failure of any person to file a petition [or a request for mediation, as discussed below] within the appropriate time period shall constitute a waiver of that person?s right to request an administrative determination (hearing) under Sections 120.569 and 120.57, F.S., or to intervene in this proceeding and participate as a party to it. Any subsequent intervention will be only at the discretion of the presiding officer upon the filing of a motion in compliance with Rule 28-5.207 of the Florida Administrative Code. A petition must contain the following information: The name, address and telephone number of each petitioner, the Department Permit Number and the county in which the MS4 is located; A statement of how and when each petitioner received notice of the Department?s action; A statement of how each petitioner?s substantial interests are affected by the Department?s action; A statement of the material facts disputed by the petitioner, if any; A statement of facts that the petitioner contends warrant reversal or modification of the Department?s action; A statement of which rules or statutes the petitioner contends require reversal or modification of the Department?s action; and A statement of the relief sought by the petitioner, stating precisely the action that the petitioner wants the Department to take. Because the administrative hearing process is designed to formulate final agency action, the filing of a petition means that the final action of the Department may be different from the position taken by it in the notice of intent. Persons whose substantial interests will be affected by any such final decision of the Department on the permit revision have the right to petition to become a party to the proceeding, in accordance with the requirements set forth above. Mediation under Section 120.573, F.S. is not available for this proceeding. The permit application file and supporting data are available for public inspection during normal business hours, 8:00 a.m. to 5:00 p.m., Monday through Friday, except legal holidays, at Department of Environmental Protection, NPDES Stormwater Section, 2600 Blair Stone Rd. Room 560, Tallahassee, Florida 32399-2400, phone number (850) 245-8430. Date of pub. January 30, 2013. Because a portion of the Town of Longboat Key extends into Manatee County, the Town of Longboat Key arranged for the notice to be published in the Bradenton Herald, which is a newspaper of general circulation in Manatee County. The notice was published on February 4, 2013. The substance of the notice, except for the date of publication, was identical to that published in the Sarasota Herald-Tribune. Neither Petitioner, nor its representatives, saw either of the published notices prior to the filing of the Petition. On or about February 8, 2012, as a result of the filing of a pre-hearing stipulation in related litigation involving an Environmental Resource Permit (“ERP”) issued by the Southwest Florida Water Management District (“SWFWMD”), Petitioner became aware of the existence of the MS4 Permit. Erika Ginsberg-Klemmt obtained a copy of the permit online, and on February 12, 2013, sent an e-mail to employees of the DEP Ft. Myers? office expressing her general concern with water quality from the disputed stormwater outfall. She expressed her belief that Sarasota County was in violation of the existing MS4 permit, and requested that the recipients of her e-mail “[p]lease be so kind as to look into this matter and let us know what could be done to prevent this unacceptable condition to continue unchecked like it did in the past.” The e-mail did not request any information regarding the MS4 Permit renewal application, nor did it request any information regarding notices or deadlines related to the application. On February 13, 2013, Christopher Wright, a consultant for Petitioner, called the DEP to gather information and do some “legwork” related to Petitioner?s challenge to the SWFWMD?s ERP. The purpose of the call was to determine if information submitted to the DEP in conjunction with the MS4 application, particularly drainage basin maps, could have been of use in the SWFWMD litigation. Mr. Wright spoke with DEP employee, Heather Ritchie, regarding the drainage basin maps that had been submitted to the DEP. During the course of their discussion, Ms. Ritchie advised Mr. Wright that a Notice of Intent to issue the MS4 Permit had been issued by the DEP. However, Ms. Ritchie did not know when Sarasota County had published the notice or when the deadline for challenging the proposed agency action was to run. In short, Ms. Ritchie expressed to Mr. Wright that “she didn?t know what the status of things were.” The discussion then went back to the primary substance of the call, which was watersheds and discharge points. Ms. Ritchie agreed to provide Mr. Wright with an electronic copy of a drainage map from the MS4 Permit file. At 12:43 p.m., on February 13, 2013, Ms. Ritchie sent a map to Mr. Wright via e-mail, and indicated that “[i]f you have additional questions or comments, you may call or e-mail me.” Later on the afternoon of February 13, 2013, Mr. Wright decided that he should ask Ms. Ritchie for a copy of the Notice of Intent. At 5:59 p.m., on February 13, 2013, after the close of business for the day, Mr. Wright wrote to Ms. Ritchie thanking her for her “rapid response to my inquiry today,” and providing her with comments on various basin areas and discharge structures. Mr. Wright concluded his e-mail by stating that “at this time I would also like to request a copy of the Notice of Intent to Issue the MS4 Permit.” The next morning, February 14, 2013, Ms. Ritchie provided Mr. Wright with the Notice of Intent to Issue the MS4 Permit as requested. Later that morning, Mr. Wright inquired as to the time for filing a challenge to the permit. Ms. Ritchie replied at 2:34 p.m. that afternoon that the MS4 Permit “was publicly noticed by the county on January 30th with a 14 day window. The window closed yesterday.” There is no evidence that Ms. Ritchie had any specific information as to the date of publication or the deadline for filing a challenge prior to that communication with Mr. Wright. Petitioner filed the Petition on February 15, 2013. The disputes identified in the Petition were directed exclusively at a 46-acre drainage basin in downtown Sarasota, and a related discharge structure that discharges stormwater from the basin to Sarasota Bay just south of the intersection of U.S. Highway 41 and Fruitville Road. The disputed basin and discharge point are located in Sarasota County.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Environmental Protection, issue a final order dismissing Petitioner?s Request for Hearing and Amended Petition for FLS000004-004 on the ground that the Petition was not timely filed. DONE AND ENTERED this 18th day of October, 2013, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 2013.
Findings Of Fact Respondent William O. Reynolds filed with Respondent Department of Environmental Regulation an application to construct a weedgate and fence at the mouth of a dead-end canal in Atlantis Estates Subdivision located on Big Pine Key in Monroe County, Florida. When the Department noticed its intent to issue a dredge and fill permit to Reynolds, Petitioner James A. Abbanat filed his objection. That cause was referred to the Division of Administrative Hearings for conduct of a formal hearing and was assigned DOAH Case No. 84-1508. On March 8, 1985, a Recommended Order was entered in that cause find in, inter alia, that the proposed project would be constructed in Class III waters of the State (Outstanding Florida Waters), that the weedgate and fence should cause no state water quality violations and should not unreasonably interfere with navigation, that they should actually improve water quality and navigation within the canal and should not significantly decrease water quality outside of the canal, that the project would not be contrary to the public interest, and that the applicant had provided reasonable assurances that the project would not violate Department standards, rules, or applicable statutes. Although the permit application was not certified by a professional engineer registered in the state of Florida, the Recommended Order concluded that that technical deficiency should not form the basis for denying the permit but rather that the permit should be granted with conditions. On April 22, 1985, a Final Order was issued adopting the Recommended Order but denying the permit application solely due to the lack of certification of the permit application by a professional engineer registered in the state of Florida. Despite the denial of his application for a permit, Respondent William O. Reynolds caused to be constructed a weedgate and fence. At some undisclosed time Reynolds did, however, submit to the Department of Environmental Regulation a set of drawings for the fence and weedgate. Although the drawing for the weedgate as built was certified by a professional engineer registered in the State of Florida, no fence drawing was so certified and the fence as built was located differently than the fence as shown in the drawings. The drawings showed a fence extending from the weedgate through the cove at the entrance to the canal for a distance of 200 feet, while the fence as installed is 100 feet in length and is located within the canal itself. On August 19, 1986, Respondents entered into a consent order acknowledging the prior denial of Reynolds" application due to lack of certification of the permit application, reciting that certification had been obtained, and authorizing the project. Interested persons were not notified of the entry of the consent order. Accordingly, when Petitioner Abbanat learned of its existence and filed his objection to the entry of that consent order, the Department of Environmental Regulation afforded the required point of entry into administrative proceedings and referred the matter to the Division of Administrative Hearings for the conduct of a formal hearing. That objection initiated this cause. The weedgate as built is in substantial accord with the plans submitted to the Department by Reynolds and certified by Joel Rosenblatt, a professional engineer registered in the state of Florida. The design, location, and size of the weedgate as built is substantially similar to that proposed in DOAH Case No. 84-1508. The weedgate as built has the same system of cables and weights and is supported by support posts on each side. As built, the weedgate opens in the middle to permit unimpeded ingress and egress of boats. The weedgate causes neither interruption of water flow nor erosion. The effect of the weedgate as built on state water quality standards is the same as the effect determined in DOAH Case No. 84-1508, i.e., the presence of the weedgate causes no water quality violation either in the canal or in the water just outside the gate and fence. The presence of windblown wrack in the canal was the major cause of state water quality violations. The sole purpose of the gate and fence is to prevent wrack from entering the canal and decaying there causing lowered dissolved oxygen levels and anoxic and/or anaerobic conditions. There has been little or no wrack in the canal since the weedgate and fence were installed, and the weedgate and fence are beneficial to and appear to have improved the water quality in the canal. The 200-foot fence across the cove at the mouth at the canal shown in the drawings submitted to the Department of Environmental Regulation does not exist since it has been prohibited by the Department of Natural Resources. Instead, Reynolds constructed a 100-foot fence perpendicular to the north side of the weedgate and joined to the rip-rap on the north side of the canal which forms the south edge of the cove. The fence as built prevents wrack from being blown around the gate into the canal, does not affect the water quality in the canal or in the cove, and does not interfere with navigation. The cove itself collects wrack to some degree under natural conditions and without the fence to the south of it because all discontinuities on the Florida Keys eastern coastline tend to trap windblown wrack until it is moved elsewhere by wind or current. The cove does collect more wrack since the fence was installed than it did before the fence was installed; however, estimating the amount would be speculative. Although Petitioner's lot adjoins the canal, it does not adjoin the cove. The owner of the property which does adjoin the cove favors the existing weedgate and fence. The placement of the weedgate and fence does not interfere with navigation in or out of the canal. It is a policy of the Department of Environmental Regulation to issue a consent order for a project if the project has already been built and is of such design and quality that the Department would be able to issue a permit for it had a proper permit application been filed. The weedgate and the fence are of such design and quality that the Department would be able to issue a permit had Reynolds resubmitted his application showing the revised location of the fence and if the drawings were certified by a professional engineer. It was determined in DOAH Case No. 84-1508 that the project was not contrary to the public interest. Since that time the standard has changed from "not contrary to the public interest" to "in the public interest." Although the Department presented only conclusory evidence that it had received reasonable assurances that the public interest standard is met by the project as built, Petitioner allowed that evidence to stand uncontroverted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered approving the consent order signed by the Department of Environmental Regulation and William O. Reynolds on August 19, 1985, and ratifying the conditions contained therein. DONE and RECOMMENDED this 21st day of January 1987, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of January 1987. APPENDIX DOAH CASE NO. 86-1091 The Department of Environmental Regulation's proposed findings of fact numbered 1, the first two sentences of 2, 3-5, 10-12, 14-17, 19, and 20 have been adopted either verbatim or in substance in this Recommended Order. The remainder of the Department of Environmental Regulation's proposed findings of fact have been rejected as follows: the third sentence of 2 as not being a finding of fact; the first two sentences of 9 as being unnecessary; the last two sentences of 9 as not being supported by the record; and 13 and 15 as being irrelevant to the issues herein. Respondent Reynolds' proposed findings of fact numbered 1, 5, and 6 have been adopted in this Recommended Order either verbatim or in substance. The remainder of Reynolds' proposed findings of fact have been rejected as follows: 2-4 and 5 as being unnecessary for determination herein, and 7 as being not supported by the record in this cause. Petitioner's proposed finding of fact numbered 5 and the first sentence of number 4 have been adopted in this Recommended Order either verbatim or in substance. The remainder of Petitioner's proposed findings of fact have been rejected as follows: 1 and 2 as being unnecessary; 3 and 6 as not being supported by the record in this cause; 5 and 10 as being contrary to the weight of the credible evidence; and 7 and the second and third sentences of 4 as not constituting findings of fact. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 James A. Abbanat 5561 S.W. 3rd Court Plantation, Florida 33317 William O. Reynolds Route 1, Box 661-E Big Pine Key, Florida 33043 Douglas H. MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 =================================================================
The Issue Whether Florida Administrative Code Rule 2B-1.002 is an "invalid exercise of delegated legislative authority," as alleged by Petitioner.
Findings Of Fact Background Petitioner, David E. Musselman, is the owner of Lot 23, Block 22, Cudjoe Gardens Eighth Addition, Cudjoe Key, Monroe County, Florida. The lot measures 127 feet along its front and rear property line, 135 feet along its side property lines and, similar to adjacent lots, its rear property line abuts an artificially created waterway. Currently, most of petitioner's lot enjoys an elevation of six feet; however, from the edge of the waterway landward a distance of approximately 20 feet [to what has been referred to as the "toe of the existing slope" in these proceedings] the surface consists of exposed caprock at an elevation of approximately four inches above mean high water. It is petitioner's desire to construct a single family residence upon such lot and, incident to such construction, to erect a seawall along the edge of the waterway such that the elevation at the waterway will be increased by two feet, and to backfill from the seawall to his home. Such backfilling would require the deposition of approximately 3,540 square feet of fill within the Department's jurisdiction, which was shown to extend from the edge of the waterway to the toe of the existing slope, and would raise the elevation in such area two feet above existing grade. On December 16, 1991, petitioner filed an application with respondent, Department of Environmental Regulation (Department), for an exemption from the Department's wetland permitting requirements. If approved, such exemption would allow petitioner to construct the vertical seawall along the waterway, and backfill from the seawall to his proposed home. By notice of agency action dated February 14, 1992, the Department proposed to deny petitioner's application predicated on its conclusion that his proposal did not meet the exemption criteria established by Rule 17- 312.050(1)(g), Florida Administrative Code. Petitioner filed a timely protest to contest the Department's conclusion. The exemption Pertinent to this case, Rule 17-312.050(1)(g), Florida Administrative Code, exempts from permitting the following activities: (g) Construction of seawalls or riprap, including only that backfilling needed to level the land behind the seawalls or riprap, in artificially created waterways where such construction will not violate existing water quality standards, impede navigation or adversely affect flood control. An artificially created waterway shall be defined as a body of water that has been totally dredged or excavated and which does not overlap natural surface waters of the state. For the purpose of this exemption, artificially created waterways shall also include existing residential canal systems . . . . At hearing, the parties stipulated that the waterway which abuts the rear property line of petitioner's lot is an artificially created waterway, as well as an existing residential canal, and that the proposed project will not violate existing water quality standards, impede navigation, or adversely affect flood control. Notwithstanding, the Department contends that petitioner's application should be denied because no need has been demonstrated that would support the construction of the seawall along the edge of the waterway, as opposed to locating it further inland, and therefore the amount of backfill, with its attendant loss of wetlands, is excessive. For the reasons set forth in the conclusions of law, the Department's position is untenable as a matter of law. 1/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department enter a final order approving petitioner's application for an exemption to construct a seawall, and to backfill from such seawall to his proposed home, as applied for. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of June 1992. WILLIAM J. KENDRICK 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 4th day of June 1992.
Findings Of Fact The following findings are based on the uncontested facts alleged in Petitioner's Motion For Summary Recommended Order and from the Final Orders issued in Bayshore Homeowners Association v. Department of Environmental Regulation and Grove Isle, Inc., Case Nos. 79-2186, 79-2324 and 79-2354. On December 29, 1980 DER entered a Final Order on the application of Petitioner for a 90 slip marina in Biscayne Bay, Florida. The Order denied the permit because Grove Isle had not demonstrated that the project is "affirmatively in the public interest" and because the applicant had not demonstrated that it "can meet ambient water quality standards within the project area itself." In the Recommended Order on Remand the Hearing Officer had defined "existing ambient waters" to be the area in the cove between Grove Isle and the Miami mainland. The Final Order rejected that concept and held if any waters others than those contained within the immediate project site were to be considered as ambient, Petitioner must request a mixing zone as part of its application. See Section 17-4.242, (1)(a)2.b. and Section 17-4.244, Florida Administrative Code. By a letter received at the Department of Environmental Regulation on May 20, 1981, Grove Isle reapplied for the boat dock permit which was the subject of the foregoing proceedings. Petitioner's application, which was in the form of a letter from counsel, stated: May 18, 1981 Mr. Larry O'Donnell Department of Environmental Regulation Post Office Box 3858 West Palm Beach, Florida 33402 RE: GROVE ISLE - Application for Boat Dock Dear Mr. O'Donnell: On behalf of Grove Isle, LTD, I am reapplying for the boat dock permit previously applied for by Grove Isle, LTD. Please consider this a short-form application. Your office designated a previous file number, DF 13-7956, to this matter. In conjunction with that application I am applying for a mixing zone, pursuant to Rule 17-4.244, for both the construction and operation of this marina. Please refer to your file on the previous application and incorporate said documents into this reapplication. I am submitting with this application: A scale drawing (one inch = 100') of the proposed facility. (which you have) A certified survey of the proposed mixing zone. (one inch = 100') An application fee of $20.00 A copy of the Final Order issued by Jacob D. Varn, former secretary of DER, on the previous application. A copy of the Notice of Intent previously issued for this project, dated 9/23/79. (which you have) As you will note from reading Mr. Varn's Final Order, he concluded that issuance of this permit was not appropriate inasmuch as the applicant had not applied for nor received a designated mixing zone. We do not necessarily agree with this order and have, in fact, appealed this decision to the First District Court of Appeal. However, in an attempt to keep this matter from becoming any more complicated, we have decided to reapply for the permit and to apply for a mixing zone. We do not concede that a mixing zone should be required for this project or that the facility will result in the release of any pollutants so as to significantly degrade ambient water quality. However, should this project, through its construction or operation, result in the release of any pollutants, I believe they would be limited to: Bottom sediments placed in suspension by the installation of the concrete piles used to support the docking facility during construction; Minimal amounts of oil and grease which may escape from the various vessels moored to the docks; The constituants of anti-fouling paint which may be applied to the hulls of the various vessels moored at the docks. Turbidity will be controlled by the use of curtains during construction. If lowered water quality occurs at all in this project it would only occur within the designated mixing zone, as per Rule 17-4.242 (2)(b) F.A.C. Please advise me should additional information be needed to process this re-application. Yours truly, /s/ KENNETH G. OERTEL On June 19, 1981, DER sent a "completeness summary letter" to Petitioner which requested the following information: Your project is in Outstanding Florida Waters. Please provide the following items demonstrating compliance with Section 17-4.242, Florida Administrative Code. Please demonstrate that this project is clearly in the public interest and that this project will not result in the degradation of ambient water quality beyond the 30 day construction period. Petitioner responded by letter dated June 22, 1981 and which was received at DER on June 25, 1981. Petitioner said in pertinent part: Dear Mr. Duke: If you would check your previous file no. DF-13-7956, I believe you will find all the information you have requested has previously been provided to your office either in that permit file or through the administrative hearings held in pursuit of this application. I think it would be more fruitful if you would communicate with Al Clark, Attorney for DER, with regard to the status of this application. As I do not wish to speak on behalf of Mr. Clark, I believe you should confirm the status of this application with him, particularly in view of our attempt to comply with Secretary Varn's Final Order which suggests the application for this mixing zone. The record reflects no further correspondence between the parties until September 23, 1981 when the Department entered a Final Order Denying Application for Permit. The Order provided that: This project was reviewed previously (DF 13-7956) and was determined not to be clearly in the public interest pursuant to Section 17-4.242, F.A.C. No further evidence upon resubmittal, has been provided to clearly demonstrate that this project is in the public interest. Furthermore, the requested mixing zone exceeds that allowable pursuant to Section 17-4.244, F.A.C. and can be applied only during the construction period, pursuant to Section 17-4.242, F.A.C. During the operation of this facility ambient water quality is expected to be degraded in violation of Section 17-4.242, F.A.C. This order was entered ninety-one days after DER received Petitioner's June 22, 1981 letter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation issue the permit applied for by Petitioner, Grove Isle, Ltd. on May 20, 1981 subject to the conditions contained in the Notice of Intent To Issue Permit dated October 23, 1979 which is a part of the record in Bayshore Homeowners Association et al., v. State of Florida Department of Environmental Regulation and Grove Isle, Inc., Case Nos. 79-2186, 79-2324 and 79-2354. DONE and RECOMMENDED this 12th day of February, 1982, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1982.
Findings Of Fact Petitioner is the owner and developer of real property in Brevard County, Florida. On February 17, 1982, Petitioner filed with DER an application for a permit to construct three docks in the Indian River adjacent to its property. Subsequently, Petitioner withdrew its three-dock application and re- filed its application seeking approval for one dock pursuant to the exemption requirements contained in Rule 17-4.04(9)(c), Florida Administrative Code. The permit for the exempt dock was received by Petitioner on October 1, 1982. Petitioner then filed an application to construct three new docks, while retaining the exempt dock, by application dated November 4, 1982. DER issued an intent to deny this permit application. The three docks which Petitioner proposes to construct are designed to provide a total of 58 mooring slips. The docks are proposed to be constructed in the Indian River adjacent to Petitioner's upland development which is designed to contain 214 units at build-out. Construction of the three docks will involve expenditure of approximately 845,000, and provide approximately five jobs. At the site of the proposed dock construction, the Indian River is navigable, and is classified as a Class II water body. The area of the Indian River in which the proposed docks are to be constructed has been conditionally approved for shellfish harvesting by the Department of Natural Resources. Sampling conducted by both Petitioner and DER confirm the presence of edible clams on the project site and in adjacent areas. Clams are filter feeders which ingest water and entrap suspended particles which are utilized as food. Any contaminants contained in water ingested by clams are concentrated inside the clam until naturally purged. Human consumption of contaminated clams poses a public health hazard. Petitioner proposes to construct the docks by driving pilings into the river bottom with an air-driven hammer. As the air hammer drives the piling into the soil, it displaces the soil beneath the pilings, and densifies it into the shear zone on both sides of the pile. The piles are supposed to be driven approximately four to five feet into the river bottom. The construction and operation of the marina is not expected to diminish the amount of benthic activity in the project area. The habitat provided by pilings is expected to more than offset the loss of the area displaced by their installation. However, the potential for contamination of shellfish in the project area by fecal coliform bacteria and other pollutants will be significantly increased. Although the number of shellfish might not be severely impacted, their fitness for human consumption by virtue of ingestion of pollutants associated with operation of the facility is expected. In order to attempt to offset this expected impact, Petitioner has proposed several restrictions on persons utilizing the docking facilities. Among these are prohibiting detergents for washing boats; prohibiting dockside fueling facilities; prohibiting discharge of bilge water from inboard craft into the river; prohibiting the use of toilet facilities onboard water craft; and requiring boats and equipment to be maintained in good order. Petitioner proposes to have on-site personnel or a subsequently formed condominium association to enforce these requirements; however, no specific workable mechanism for enforcing these procedures was established of record by Petitioner. Petitioner submitted testimony concerning water quality sampling performed in the project area and in areas adjacent to the proposed site. However, no analysis was conducted over and extended period of time to show existing water quality, or to give any credible comparison between the proposed site and other nonresidential marinas in the area. Further, Petitioner conducted no analysis of bottom sediments in the proposed project area in order to determine the type and extent of any pollutants existing on-site which could be expected to be re-suspended in the water column as a result of intense marine activity. These omissions are significant in view of the fact that the waters of the Indian River in this area have been approved for shellfish harvesting. There are several existing marinas and boat ramps within close proximity to the Petitioner's development. Consequently, both the general public and residents at the development have ample access to the waters of Indian River and its surroundings. Petitioner has made no showing of any hardship which would justify the granting of a variance from DER permitting requirements.
