The Issue The issue to determine in this matter is whether Petitioner James Jablon’s applications for a Personal Pet No Cost Permit (PPNC) and Class III Exhibition and/or Sale License (ESC) should be denied for the reason stated in Respondent Florida Fish and Wildlife Conservation Commission’s (FWC) Notice of Denial, dated May 24, 2019.
Findings Of Fact Mr. Jablon testified that he previously owned a male lion named Ed, and possessed the appropriate Class I Wildlife License. Ed then went to live at another wildlife facility near Gainesville. Mr. Jablon testified that in July 2015, Judith Watson, who owned a wildlife sanctuary near Spring Hill, Florida, contacted him and asked him to live in a guest house at her wildlife sanctuary and inquired whether he could relocate Ed to her wildlife sanctuary. Mr. Jablon stated that Ms. Watson had a female lion named Savannah, and it was his opinion that lions should live in a “group system” and not alone. Mr. Jablon testified that he then took steps to reacquire Ed from the Gainesville facility. On October 19, 2015, Mr. Jablon applied for a Class I and/or Class II Wildlife for Exhibition or Public Sale (ESA), in the name of Wildlife Rehabilitation of Hernando, in which he sought a license to possess, inter alia, a lion. The State of Florida classifies lions (panthera leo) as Class I wildlife. See Fla. Admin. Code R. 68A-6.002(1)(a)12. Among the numerous requirements for an ESA are requirements for the facilities for the housing of Class I wildlife, “[i]n order to assure public safety.” Fla. Admin. Code 68A-6.003(2). For example, Florida Administrative Code Rule 68A-6.003(2)(c)1. requires: Property ownership/lease: The facility shall be constructed on property owned or leased by the applicant. If leased[,] the lease shall be for a term of not less than one (1) year from date of application. Such lease shall be subject to initial and annual review and approval by the commission as a condition of said lease. If the property is leased, the lessee must have exclusive rights to occupy, possess and use the property with no restrictions that could prevent the lessee from adhering to the eligibility requirements for licensure with no other in holdings or easements. The existence of any such lease restrictions or termination of the lease shall result in the denial or revocation of the license or permit. As part of his ESA application materials, Mr. Jablon provided a “Residential Lease Agreement,” dated July 31, 2015, between Ms. Watson and “James Jablon/WROH,” that generally stated that Ms. Watson agreed to rent to Mr. Jablon (and Wildlife Rehabilitation of Hernando) real property in Spring Hill, Florida, for a term of almost three months. The Residential Lease Agreement contains the signatures of Mr. Jablon, and purportedly, Ms. Watson. Thereafter, Mr. Jablon submitted to FWC a “License renewal correction update,” dated November 16, 2015, in which he provided a “correction” to the lease term to show that it was for three years, and not almost three months. This “correction” contains the initials of Mr. Jablon, and purportedly, Ms. Watson. At the final hearing, Mr. Jablon admitted that the signatures of Ms. Watson on the Residential Lease Agreement and the initials on the “License renewal correction update” were not those of Ms. Watson, but his. Mr. Jablon testified that he signed Ms. Watson’s signature and initials to these documents with Ms. Watson’s permission. Mr. Jablon further testified: We weren’t really concerned about the legality of the lease, because neither one of us had any intention of enforcing the lease. I wasn’t technically a tenant there leasing the property. I was over there to help her run that facility and work with her. So if you look at the lease, there’s really nothing—it’s basically the way it came in the package. . . . So, I mean, we didn’t—we didn’t care about the lease. Ms. Watson testified that she never asked Mr. Jablon to create a lease for the Spring Hill property, never gave him permission to sign her name on a lease, and never gave him permission to sign a “License renewal correction update.” Ms. Watson, who testified that she was familiar with the requirements for an ESA for Class I wildlife, also testified, consistently with Mr. Jablon, that the two had discussed moving Ed to her property to live with Savannah. The undersigned does not find Ms. Watson’s testimony credible concerning the creation of a lease for the Spring Hill property. As an owner of a lion, who testified that she was familiar with the requirements for an ESA for Class I wildlife, Ms. Watson knew of rule 68A-6.003(2)(c)1.’s requirement that an ESA permittee must own or lease the property upon which the wildlife would reside. By asking Mr. Jablon to move Ed to her property to live with Savannah, the undersigned finds that Ms. Watson would have known of this requirement that Mr. Jablon either own or lease the property where Ed would live. As Mr. Jablon did not own Ms. Watson’s Spring Hill property, the undersigned finds that Ms. Watson would have known that Mr. Jablon would need to lease the Spring Hill property to legally possess an ESA and locate Ed on the Spring Hill property. However, the undersigned also finds, based on his own testimony, that Mr. Jablon falsified Ms. Watson’s signature on the lease, as well as her initials on the “License renewal correction update,” which he submitted to FWC as part of his ESA application. His explanation for doing so--that neither he nor Ms. Watson intended to enforce the lease and renewal documents-- further indicates to the undersigned that Mr. Jablon intended to submit materially false documents to FWC in the ESA application process. On February 19, 2019, FWC received Mr. Jablon’s application for a PPNC and ESC. In its May 24, 2019, Notice of Denial, FWC stated: On May 12, 2016, Ms. Watson provided a sworn statement to Investigator Chad Paul stating that the lease [submitted with the October 19, 2015, application for ESA] was a falsification. In comparing signatures from Ms. Watson over the years to the lease you submitted, FWC confirmed the signature did not belong to Ms. Watson. The Notice of Denial further states, “[b]ased on your prior submission of materially false information, your applications [for a PPNC and ESC] have been denied.” The undersigned finds that competent, substantial evidence supports FWC’s determination that Mr. Jablon submitted materially false information when he applied for an ESA in 2015.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned RECOMMENDS that the Florida Fish and Wildlife Conservation Commission issue a final order denying Mr. Jablon’s PPNC and ESC applications. DONE AND ENTERED this 27th day of September, 2019, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III 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 27th day of September, 2019. COPIES FURNISHED: James Jablon 15297 Highfield Road Brooksville, Florida 34604 Joseph Yauger Whealdon, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Eric Sutton, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Harold G. “Bud” Vielhauer, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed)
The Issue The issue in this proceeding is whether four agency memoranda describing policy on mitigation for dredge and fill projects are unpromulgated rules and were relied on by the agency in violation of Section 120.535(1), F.S. During the hearing, and afterwards in writing, Petitioner sought leave to amend its pleadings to incorporate other policies allegedly relied on by the agency in the process of the dredge and fill application review. That request was denied in an order entered on August 23, 1993. Those policies are addressed in the recommended order in DOAH #93-3367.
Findings Of Fact Petitioner, SIP Properties Limited Partnership (SIP) is the record owner of the parcel at issue, approximately thirty-five (35) acres located in the southwest area of Orlando, Orange County, Florida. SIP proposes to prepare the site for commercial and office use by developing the site into separate parcels or lots with proposed uses such as restaurant or fast food establishments, offices and retail stores. Development of the site requires the construction of compensating storage ponds that will act as retention/detention ponds and filling the site. The proposed improvements will result in the filling of 7.47 acres and dredging of 0.42 acres of wetlands claimed to be jurisdictional by DEP. Based on statements made to SIP by staff regarding department "mitigation policies" applicable to SIP's dredge and fill permit application, SIP believed that department policy memoranda were applied during permit review. SIP attached these various memoranda regarding mitigation to its Petition for Administrative Determination of Violation of Rulemaking Requirement dated May 27, 1993, and identified these memoranda as nonrule policies utilized by the department. The department retains on file and makes available for use by its staff the identified memoranda. However, in this case the department did not rely on or apply the mitigation guidelines contained in the memoranda in SIP's Petition. Instead, it applied Part III of Chapter 17-3120, F.A.C. In Part III of Chapter 17-312, F.A.C., the agency has adopted rules addressing the mitigation issues contained in the memoranda in SIP's Petition. For example, the agency has adopted guidelines in rule 17-312.340(2), F.A.C., for applying ratios when mitigation involves creation of state waters, as in this case. The department presently relies on these rules when reviewing mitigation plans, and does not rely on the policy memos referenced in the petition. Determining the mitigation needed to successfully offset impacts from a project is difficult and depends on many factors, including hydrology, soils, planting methods, and monitoring plans. Determining what is needed to reasonably assure successful mitigation must be done on a case by case basis. Not enough is known about the subject to apply any particular set of directions and expect success. DEP is presently in the process of developing rules to further address most aspects of mitigation.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Environmental Protection issue its Final Order granting SIP's dredge and fill permit #48-2086169, with the mitigation proposed by the applicant, and establishing an expiration date and monitoring and evaluation plan for determining success of the mitigation as provided in rules 17-312.320 and 17-312.350, F.A.C. DONE AND RECOMMENDED this 11th day of January, 1994, 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 11th day of January, 1994. APPENDIX The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings 1.-3. Adopted in paragraph 2. 4.-6. Adopted in paragraph 7. 7.-8. Rejected as unnecessary. 9. Adopted in paragraph 8. 10.-11. Adopted in substance in paragraph 9. 12. Adopted in substance in paragraph 10. 13.-16. Rejected as unnecessary Adopted in paragraphs 11 and 12. Rejected as unnecessary. 19.-21. Adopted in substance in paragraph 13. 22.-23. Adopted in substance in paragraph 14. 24.-25. Adopted in paragraph 15. Adopted in paragraph 16. Rejected as contrary to the weight of evidence. Adopted in paragraph 16. Substantially rejected as contrary to the greater weight of evidence. Adopted in part in paragraph 17, otherwise rejected as immaterial. Rejected as immaterial. Adopted in paragraph 18. Rejected as immaterial. The agency witnesses established that the vegetation along the canal evidences the physical connection and there is evidence that water flows from the site into the canal. Rejected as unsubstantiated by reliable competent evidence. Adopted in substance in paragraph 22. 36.-40. Rejected as unsupported by reliable competent evidence. Rejected as immaterial. Rejected as unsupported by the weight of evidence. Rejected as unnecessary, and as to characterization of merely "relic" wetlands, unsupported by the weight of evidence. Rejected (the conclusion of jurisdictional limit) as unsupported by the greater weight of evidence. 45.-53. Rejected as immaterial or unnecessary. 54.-56. Adopted in paragraphs 33 and 34. 57. Adopted, as to the limited function, in paragraphs 22 and 23. 58. Adopted in paragraph 26. 59.-60. Adopted in paragraph 23. 61. Rejected, as to the absolute conclusion of "no function", as contrary to the greater weight of evidence. 62. Adopted in paragraph 25. 63.-64. Adopted in paragraph 26. Rejected as unnecessary. Adopted in paragraph 30. Adopted in paragraph 34. Adopted in substance in paragraph 31. Adopted in substance in paragraphs 30 and 34. Adopted in paragraph 31. 71.-73. Adopted in paragraph 33. 74.-77. Rejected as unnecessary. 78.-79. Adopted in paragraph 31. 80.-81. Adopted in paragraph 35. Rejected as unnecessary. Adopted in paragraph 33. 84.-90. Rejected as unnecessary. Respondent's Proposed Findings Adopted in paragraph 15. 2.-3. Adopted in paragraph 16. 4.-5. Adopted in paragraph 17. Adopted in paragraph 15. Adopted in paragraph 17. Adopted in paragraph 16. Rejected as unnecessary and as to "binding" effect, unsupported by the weight of evidence. Adopted in paragraph 19. 11.-15. Adopted in substance in paragraph 21. 16. Rejected as contrary to the weight of evidence and inconsistent with proposed findings #18 with regard to the constant level in the canal. 17.-18. Adopted in substance in paragraphs 21 and 23. 19.-21. Adopted in paragraphs 19 and 20. 22.-26. Adopted in summary in paragraph 21. Adopted in paragraph 27. Adopted in substance in paragraphs 1 and 2. Adopted in paragraph 2. Adopted in part in paragraph 16. That the forests are "healthy and viable" is rejected as unsupported by the weight of evidence. Adopted in substance in paragraph 17. Adopted in part in paragraph 25; otherwise rejected as contrary to the weight of evidence. 33.-34. Adopted in part in paragraph 27; otherwise rejected as contrary to the weight of evidence. 35.-37. Rejected as contrary to the weight of evidence. 38.-43. Rejected as unnecessary. 44. Rejected as contrary to the weight of evidence. The stormwater management plan and mitigation will restore the stormwater treatment functions. 45.-47. Adopted in substance in paragraph 30. Rejected as substantially contrary to the greater weight of evidence (as to the negative impact). Adopted in part, as to water quality problems generally, but rejected as to the ultimate conclusion, as contrary to the greater weight of evidence. Rejected as unnecessary. 51.-52. Adopted in summary in paragraph 31. 53.-54. Rejected as cumulative and unnecessary. 55. Rejected as contrary to the greater weight of evidence. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Ronald M. Schirtzer, Esquire Martha H. Formella, Esquire R. Duke Woodson, Esquire FOLEY & LARDNER 111 North Orange Avenue, Suite 1800 Orlando, Florida 32801 Douglas H. MacLaughlin, Esquire John L. Chaves, Esquire Rosanne G. Capeless, Certified Legal Intern Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue Whether petitioner has standing to challenge a consent order negotiated by respondents to resolve an enforcement proceeding? If so, whether the consent order comports with statutes and rules regulating dredging and filling in wetlands?
Findings Of Fact Without securing DER permits, TLC built two dirt roads, one perpendicular to the other, both in Gulf County, east and south of property petitioner John L. Sullivan, Jr. owns and lives on. Between them, the roads, each 20 to 25 feet wide, traversed wetlands (recognized as such by DER regulations and the DER environmental specialist when he visited the site in May of 1990) in three separate places. None of the affected wetlands drain in the direction of petitioner's property. TLC dredged and placed 36-inch culverts before filling at two of the sites, and placed fill at all three sites, constructing roadbed and shoulders. One of the sites, connected by a 200-foot ditch to other wetlands, DER's Larry Taylor eventually characterized as "isolated." He directed TLC to fill the ditch to destroy the connection, on the theory this would divest DER of jurisdiction. At hearing, John L. Sullivan, Jr. testified that the project had not affected him financially, and said he was affected only as a citizen of Florida. The wetlands crossed by the roads drain (or, in one instance, did drain before the ditch was filled) easterly to Stonemill Creek, which flows southeasterly toward the Dead Lakes.
Recommendation It is, accordingly, recommended that DER dismiss the letter or petition with which these formal administrative proceedings began. RECOMMENDED this 10th day of June, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-0282 Petitioner's proposed finding of fact No. 1 has been adopted in substance. Petitioner's proposed findings of fact Nos. 2 and 3 pertain to immaterial matters. Petitioner's proposed finding of fact No. 4 was not proven. Respondent's proposed findings of fact Nos. 1, 2, 5, 6 and 10 (i.e. the final proposed finding of fact) have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 3, a parcel 96 feet by 60 feet was involved at only one of the three sites. With respect to respondent's proposed finding of fact No. 4, the conclusion that "the jurisdictional aspect ceased to exist" is not adopted. With respect to respondent's proposed finding of fact No. 7, whether the violation was "resolved" is a conclusion of law. With respect to respondent's proposed finding of fact No. 8, the allegations of the petition were not proven. With respect to respondent's proposed finding of fact No. 9, not all uncontradicted evidence has been credited. COPIES FURNISHED: Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 John L. Sullivan, Jr. Post Office Box 1298 Wewahitchka, FL 32465 Richard L. Windsor, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Bill R. Hutto, Esquire Hutto, Nabors, Bodiford and Warren 101 East 23rd Street Panama City, FL 32405
The Issue The issue to be determined in this case is whether the Florida Fish and Wildlife Conservation Commission (“Commission”) is entitled to the requested minor modification of its existing Environmental Resource Permit and Sovereign Submerged Lands Authorization, which would authorize the backfilling of a portion of Fisheating Creek as part of a restoration project.
Findings Of Fact The Parties The Department is the state agency responsible for regulating construction activities in waters of the State. The Department has also been delegated authority to process and act on applications for authorization from the Board of Trustees for activities on sovereignty submerged lands. The Commission is the state wildlife management agency. The Commission is the applicant for the minor modification at issue in this proceeding. Petitioner, Save Our Creeks, Inc., is a non-profit Florida corporation with its offices in Lake Place, Florida. Save Our Creeks’ members are interested citizens and groups devoted to the conservation of natural resources, especially creeks and small waterways. Save Our Creeks owns property on Fisheating Creek in Glades County, approximately nine miles upstream of Cowbone Marsh. Petitioner, Environmental Confederation of Southwest Florida, Inc. (ECOSWF), is a non-profit Florida corporation with its offices in Sarasota, Florida. A substantial number of the members of Save Our Creeks and ECOSWF use and enjoy the waters of Fisheating Creek for a variety of purposes, including canoeing, boating, fishing, and wildlife observation. Their interests would be affected by the proposed project. Fisheating Creek and Cowbone Marsh Fisheating Creek flows from Highlands and Desoto Counties south and east through Glades County. The Creek runs in a northeastern direction through Cowbone Marsh before draining into Lake Okeechobee. The Creek contributes approximately nine percent of the flow into Lake Okeechobee. Fisheating Creek is designated as Class III waters. Cowbone Marsh is located about eight miles west of Lake Okeechobee. It is a mile and a half long and two miles wide, covering about 2,500 acres. Fisheating Creek and Cowbone Marsh are within the Fisheating Creek Wildlife Management Area. In 1929, the United States Army Corps of Engineers ("USACOE") prepared a survey map which shows Fisheating Creek as an open water route from Lake Okeechobee through Cowbone Marsh and continuing beyond. The accuracy of the course of the Creek as it is depicted in the 1929 map is not disputed by the parties. The 1929 map does not describe the depth or width of the Creek. Some evidence about historical widths and depths was presented, but it was incomplete. There was credible evidence showing that some segments of Fisheating Creek were four to five feet deep and 20 to 30 feet wide. There was also credible evidence that other segments of the Creek were shallower and narrower. The record shows only that canoes, kayaks, and other vessels drawing twelve inches of water or less have been used on the Creek. For a number of years, much of Fisheating Creek has been choked by vegetation and “tussocks.” Tussocks are floating mats of vegetation. Carolina willow now dominates Cowbone Marsh, having replaced areas that were previously open water or covered with herbaceous marsh communities. The vegetation in the Creek made navigation difficult or impossible through Cowbone Marsh. The 1998 Judgment and 1999 Settlement Agreement In 1989, Lykes Bros., Inc., asserted ownership of Fisheating Creek and tried to prevent public access to the Creek. The Board of Trustees responded with a civil action against Lykes Bros., seeking a determination that Fisheating Creek throughout Glades County is navigable and, consequently, the title to its bottom is held by the Board of Trustees as sovereignty submerged lands. Petitioners in this administrative proceeding intervened in the circuit court case on the side of the Board of Trustees. The jury found Fisheating Creek navigable throughout Glades County and the court entered a judgment in 1998 determining that the Creek is sovereignty land held in trust by the Board of Trustees. The judgment did not include any findings about the widths and depths of Fisheating Creek. The court retained jurisdiction to determine the boundaries of the Creek, but the boundaries were never determined. The circuit court case was appealed, but in May 1999, the parties entered into a settlement agreement pursuant to which Lykes Bros. agreed to sell to the Board of Trustees a conservation easement on upland areas adjacent to Fisheating Creek, to be held and managed for the benefit of the public. The conservation area is known as the Fisheating Creek Expanded Corridor. The settlement agreement also called for the Board of Trustees to lease the Fisheating Creek Expanded Corridor to the Commission, who the Board of Trustees designated as the managing agency. The settlement agreement acknowledges the public's "right to boat and canoe on Fisheating Creek throughout the entire Expanded Corridor.” With respect to navigation, the settlement agreement provides: Protection of Navigation. The navigability of Fisheating Creek throughout the entire Expanded Corridor shall be maintained and enhanced through a navigation maintenance program which includes aquatic weed control and removal of fallen logs and similar obstructions. This section does not authorize dredging. The Cookie-Cutter Project In January 2009, the Commission aerially applied an herbicide to kill the vegetation along the course of the Creek. In April 2010, the Commission contracted with A & L Aquatic Weed Control (“A & L”) to “[m]echanically dismantle floating tussocks.” The Commission directed A & L to perform the project by “shredding vegetation and accumulated organic material to re-open the navigation across Cowbone Marsh.” The Commission instructed A & L to re-open a channel "approximately 2.2 miles long and 18-20 feet wide,” and to clear some areas of the Creek “as wide as 35-feet wide occasionally as necessary to turn shredding equipment during the shredding process.” The Commission did not direct A & L to dredge a deeper channel. The vessel used by A & L to perform the work is known as a “cookie-cutter.” The cookie-cutter has two cutting wheels at the front of the vessel to shred and side-cast vegetation. The cutting wheels also act as propellers to propel the cookie- cutter forward. The cookie-cutter can clear woody vegetation up to four inches in diameter. The two cutting wheels can be lowered or raised in order to cut vegetation at various depths in the water. Evidence was presented to show how the cutting wheels could be lowered two to three feet, but it was not made clear whether the cutting wheels could be lowered even more. No evidence was presented to establish how deep the cookie-cutter blades were lowered into Fisheating Creek during the work performed by A & L. No evidence was presented to establish what depth of soil the cookie-cutter was capable of dredging through if the cutting wheels cut into the Creek bottom. The cookie-cutter began on the eastern side of Cowbone Marsh and moved upstream. The parties disputed the point of beginning. Petitioners contend it was farther upstream, but the more persuasive evidence for the point of beginning was presented by the Commission. The cookie-cutter generally followed the course of Fisheating Creek as depicted on the 1929 USACOE map. However, there are three areas where the cookie-cutter deviated from the 1929 map. One deviation is about 100 feet off-line. The other two deviations are 25 to 30 feet off-line. No explanation was given for the deviations, but the cookie-cutter operator generally followed the path of dead vegetation killed by the aerial spraying of herbicide and the line may have deviated from the true course of the Creek in these three areas. During the cookie-cutter project, water levels within the Creek and Marsh fluctuated. At some point, the project was postponed due to low water conditions. A sandbag dam was placed in the channel to artificially raise the water level so the cookie-cutter could continue. In July 2010, the Department and USACOE ordered the Commission to stop the project due to its adverse environmental impacts, including the draining of Cowbone Marsh. Before the cookie-cutter stopped, it had cleared about two miles of Fisheating Creek. Where the cookie-cutter stopped there is a discernible channel continuing west, but it is shallower and narrower than the channel created by the cookie-cutter. At this terminus, the cookie-cutter was dredging a deeper and wider channel than existed naturally. Additional evidence of dredging along the Creek channel is the soil cast up on the banks, and the removal of peat soils in the bottom of the Creek and exposure of underlying mineralized soil. The cookie-cutter altered the natural conditions of the Fisheating Creek in some areas by dredging the sides and bottom of the Creek. The dredging by the cookie-cutter altered the hydrology of the Creek and Marsh. The Marsh drained rapidly to Lake Okeechobee. In addition, large quantities of soil, muck, silt, and debris disturbed by the cookie-cutter were carried downstream toward Lake Okeechobee. Some of the soil and debris settled out at the mouth of the Creek, causing shoaling. The sides of the channel in many areas is continuing to erode. The Department’s Emergency Final Order In July 2010, the Department issued an Emergency Final Order, which directed the Commission to: (a) remove the cookie- cutter and immediately stop all activities associated with the cookie-cutter; (b) place temporary emergency flow restrictors in the channel to reduce flow velocities and minimize downstream sediment transport, as well as raise the water level to minimize surface and groundwater flow from the adjacent marsh into the channel; and (c) develop a long-term remedial plan to return water levels within the Marsh to pre-impact conditions and apply to the Department for an Environmental Resource Permit to implement the plan. In August 2010, pursuant to the Emergency Final Order, the Commission constructed an aluminum weir in the Creek to decrease flow velocities, reduce erosion, and maintain the hydration of the Marsh. The weir was placed approximately half a mile downstream from where the cookie-cutter stopped. During the wet season of 2010, the aluminum weir was completely submerged. Erosion and shoaling occurred immediately downstream. The Commission determined that the weir was ineffective and removed it. The EPA Compliance Orders In March 2011, the EPA issued an Administrative Compliance Order in which it alleged the Commission had engaged in "unauthorized activities associated with the excavation and construction of a channel within Cowbone Marsh.” The Commission was ordered to construct an initial check dam in the upper reaches of the Marsh to minimize the loss of groundwater and prevent further adverse impacts. In April 2011, EPA issued a second Administrative Compliance Order, directing the Commission to construct five additional check dams. The order describes the check dams as "initial corrective measures" and states that the “final restoration plan will include measures for backfilling the unauthorized cut through Cowbone Marsh.” The Initial Permits In May 2011, the Department issued to the Commission an Environmental Resource Permit and Sovereign Submerged Lands Authorization, which authorized the construction of six earthen check-dams within the portion of Fisheating Creek where the cookie-cutter had operated. The purpose of the check dams was to improve the hydrology of Cowbone Marsh and promote the accumulation of sediments within the channel to restore the natural depth and width of Fisheating Creek. The check dams were constructed using sand bags, marine plywood, coconut matting, and pressure-treated posts. The check dams have ten-foot wing walls which extend into the surrounding marsh. The wing walls are to prevent erosion around the dams and to direct water into the marsh. The installation of the check dams was completed in July 2011. Since that time, some repair efforts have been required to replace lost sandbags and to address erosion that has occurred around the check dams. The check dams have been somewhat successful in maintaining higher water levels in the Marsh. However, they have not restored natural hydrologic conditions, or prevented erosion along the channel. The Proposed Modification In June 2012, the Commission applied for a "minor modification" to the existing permits, which the Department granted. The modified permits authorize the Commission to backfill the channel cleared by the cookie-cutter with approximately 27,000 cubic yards of sand. The check dams would not be removed. The sand for the backfilling would be excavated from a "borrow" area located about a mile away. Petitioners contend that the borrow area is in wetlands, but the more persuasive evidence is that it is uplands. A 1.164-mile temporary access road would be constructed from the borrow area through uplands and wetlands to a 100-square-foot staging area adjacent to Fisheating Creek where the backfilling would begin. Wetland impacts would be minimized by constructing the temporary access road and staging area with interlocking mats. Petitioners did not show that the route or manner in which the temporary road would be constructed and used would have unacceptable adverse impacts to the environment or otherwise fail to comply with applicable criteria. The sand would be dumped into the Creek and then compacted. As the Creek was filled, the compacted sand would be used as a roadway for the trucks to transport sand to the end of the filled area to dump more sand, until the backfilling was completed. The proposed backfilling would not restore a typical stream profile, deepest in the middle and becoming more and more shallow moving toward the banks. That kind of profile can be seen in the photographs of Fisheating Creek taken before the cookie-cutter project. The proposed modification calls for filling the cut channel from "bank to bank": Final Grade: Fill must be compacted and ground surface elevations must be the same as the adjacent marsh ground surface elevations (within a tolerance of +6/-6 inches) The filled channel would be seeded and fertilized to grow native vegetation. The proposed seed mixture is mostly water grasses, but has some willow included. Compliance with Criteria Florida Administrative Code Rule 62-343.100 provides that a modification is treated as either minor or major depending on the magnitude of the changes and the potential for environmental impacts that differ from those addressed in the original permit: modification shall be considered to be minor only where the modification does not: Require a new site inspection by the Department in order to evaluate the request; or Substantially: Alter permit conditions; Increase the authorized discharge; Have substantially different or increased impacts on wetlands and other surface waters. . . ; Decrease the retention/detention specified by the original permit; Decrease any flood control elevations for roads or buildings specified by the original permit; or Increase the project area. At the final hearing, it was not shown how the modification meets the criteria for a minor modification. The proposed modification does not meet the criteria because it required new site visits, substantially alters the original permit conditions, and has a substantially different impact on wetlands. The criteria applicable to an application for a major modification were not identified, nor was it shown how the evidence presented at the final hearing satisfies the requirements for such an application. The proposed backfilling plan would not restore the natural conditions that existed in Fisheating Creek. The Commission did not show that it made a reasonable effort to determine the pre-disturbance conditions throughout the disturbed area. The proposed modification would not restore the natural depths in the Creek. The backfilling plan calls for a finished grade of plus or minus six inches above the level of the adjacent marsh. A final grade of zero to plus six inches would essentially eliminate Fisheating Creek. The maximum allowed depth of minus six inches below the level of the adjacent marsh would be shallower than the natural depths in portions of the Creek. Even the Department described the Creek was "one to two feet deep" before the cookie-cutter project. Adequate measures are not included in the permits to ensure that after backfilling and planting, the Creek would have the ordinary attributes of a creek. The proposed modification would not restore the pre- existing hydrologic conditions of the Creek. The modified Environmental Resource Permit requires strict compliance with the terms of the 1999 settlement agreement. The modification would not be consistent with the 1999 settlement agreement because the backfilling and planting would destroy the navigability of the Creek. Petitioners want to preserve the current depths of Fisheating Creek, but some of those depths are unnatural, being the result of dredging by the cookie-cutter. However, the proposed backfilling would not restore the natural depths in some parts of the Creek and would not maintain the navigability of the Creek, even for shallow draft vessels such as canoes and kayaks.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Department deny the requested modification to the Commission's Environmental Resource Permit and Sovereignty Submerged Lands Authorization. DONE AND ENTERED this 3rd day of July, 2013, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 3rd day of July, 2013. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Alisa A. Coe, Esquire Joshua D. Smith, Esquire Bradley I. B. Marshall, Esquire Earthjustice 111 South Martin Luther King, Jr., Boulevard Tallahassee, Florida 32301 Harold "Bud" Viehauer, General Counsel Ryan Osborne, Esquire Florida Fish and Wildlife Conservation Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1050 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Matthew Z. Leopold, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue Is an Agency that settles a challenge to its denial of a license by agreeing to issue the license a "non-prevailing adverse party," as defined by section 120.595(1)(e)3., Florida Statutes (2019)? 1
Findings Of Fact The Commission denied an application by Mr. Lightsey for issuance of a Hunt Preserve License. A letter titled "Amended Notice of Denial" (Amended Notice), signed by Major Rob Beaton, Division of Law Enforcement, advised Mr. Lightsey that the Commission intended to deny his application. The Amended Notice included this dispositive paragraph: "Due to the facts stated above, pursuant to 68-1.010, F.A.C, your application for a HPL has been denied. We are processing your application fee for a refund, and you should receive it within 21 days." The Amended Notice also advised Mr. Lightsey of his right to request a hearing to challenge the intended decision. Mr. Lightsey challenged the proposed denial and requested a formal administrative hearing. Mr. Lightsey brought his challenge under section 120.57(1), which creates a right to a formal hearing to dispute a proposed agency action. The Commission referred the matter to the Division for assignment of an Administrative Law Judge and conduct of the hearing. The parties settled the licensing dispute before the hearing. Their settlement agreement provided for the Commission issuing each of the denied licenses. The parties' agreement also provided for severing the attorney's fees and costs claim, leaving it pending for the Division to resolve if the parties could not agree. The order closing the file in this case severed the fees and costs claim and reserved jurisdiction over it. The parties could not agree. The division re-opened the fees case as DOAH Case No. 19-5210F. This proceeding followed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends that The Florida Fish and Wildlife Conservation Commission enter its Final Order denying Petitioner's Motion for Fees and Costs under section 120.595, Florida Statutes. DONE AND ENTERED this 31st day of March, 2020, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 31st day of March, 2020. COPIES FURNISHED: Bert J. Harris, Esquire Swaine, Harris & Wohl, P.A. 401 Dal Hall Boulevard Lake Placid, Florida 33852 (eServed) Bridget Kelly McDonnell, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Joseph Yauger Whealdon, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Sharmin Royette Hibbert, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399 (eServed) Eric Sutton, Executive Director Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed) Emily Norton, General Counsel Florida Fish and Wildlife Conservation Commission Farris Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 (eServed)
Findings Of Fact The Subject Property. The property at issue in this proceeding consists of approximately 205 acres of land located in Clay County, Florida. The subject property is known as "Station Pond (Oak Forest Extension)." Station Pond was subdivided into 40 lots by an unrecorded subdivision plat. The lots range in size from approximately three to fifteen or twenty acres. Roads, which are unpaved, surrounding Station Pond, and drainage for Station Pond, are privately owned. The roads and drainage were completed prior to December of 1978. A boundary survey of Station Pond was prepared and contains a surveyor's certification of January 8, 1980. Pre-1985 Subdivision Regulations of Clay County. Prior to September of 1985 Clay County did not require platting of subdivisions such as Station Pond. In September of 1985, Clay County adopted Ordinance 85-68 creating three types of subdivisions and providing for the regulation thereof. An exception to these requirements, however, was included in Ordinance 85-68: subdivisions shown on a certified survey prior to September of 1985 with lots and roads laid out would continue to not be subject to regulation so long as the lots continue to comport with the survey. Government Action Relied Upon Before the Applicant's Sale of the Property. The Applicant was aware that it could develop Station Pond as an unrecorded subdivision in Clay County. The development of Station Pond comes within the exception to Ordinance 85-58. In a letter dated December 15, 1978 the Clay County Director of Planning and Zoning informed the Applicant that Oak Forest Clay County would "issue building permits in accordance with the uses permitted and lot/building requirements for an Agricultural zoned district, and in accordance with all other local ordinance provisions, state statutes, etc., as enclosed." This representation was based upon the conclusion of Clay County that Oak Forest was not subject to Clay County subdivision ordinances. Similar conclusions were reached by the Clay County Health Department in a letter dated September 8, 1978, and by the Clay County Public Works Director in a letter dated December 18, 1978. The Applicant's Detrimental Reliance. The Applicant's predecessor corporation provided dirt roads around part of Station Pond. The roads were constructed prior to December of 1978. The costs of the roads incurred by the Applicant was approximately $15,000.00. Rights That Will Be Destroyed. If the Applicant must comply with the Clay County comprehensive plan it will be required to pave the roads of the subdivision and provide an approximately 3 mile long paved access road. Procedural Requirements. The parties stipulated that the procedural requirements of Vested Rights Review Process of Clay County, adopted by Clay County Ordinance 92-18, as amended, have been met.
The Issue This is a challenge to certain administrative rules adopted by the St. Johns River Water Management District relating to permitting criteria for isolated wetlands. Section 373.414, F.S. mandates that permitting criteria for isolated wetlands be adopted by water management districts, by rule, by March 31, 1987. The statute also includes four more specific requirements for those rules. Petitioners contend that St. Johns River Water Management District Rule Chapter 40C-4, F.A.C. and the Applicant's Handbook, Management and Storage of Surface Waters, adopted as a rule by reference, fail to comply with the statutory mandate and are an invalid exercise of delegated legislative authority by the District. Respondent, St. Johns River Water Management District, contends that its rules comply with Section 373.414, F.S.. St. Johns River Water Management District contests the standing of Petitioner, the Florida Wildlife Federation, Inc. Intervenors, E.I. Du Pont De Nemours and Company, Inc. and Associated Minerals (USA), Inc., support the District's position and contest the standing of both Petitioners.
Findings Of Fact Petitioner, Sierra Club, Inc., (Sierra) is a non-profit corporation registered to do business within the state of Florida. It is an international organization, with regional committees, state chapters, and local regional groups. The Florida chapter has 15 regional groups, several of which are located within the jurisdictional boundaries of the St. Johns River Water Management District (SJRWMD). About 6,000 members live within the boundaries of the SJRWMD. The overall purpose of Sierra is to explore, enjoy and protect the natural resources of the earth. Sierra commonly offers outings for the enjoyment and education of its members and the general public. These involve traveling, hiking, birdwatching and other wildlife observation. Part of the outings program includes hiking and viewing of isolated wetlands and wildlife dependent on those wetlands. These outings take place within the SJRWMD. Some Sierra members are actively involved in work related to isolated wetlands, including studies, consulting, and managing of wetlands, some of which are located within the SJRWMD. The Florida Wildlife Federation, Inc. (FWF) is a non-profit corporation registered to do business in the state of Florida. It is comprised of organizations and individual members who support the wise use and management of Florida's natural resources. Sportsmen and naturalists who belong to the club are involved in hunting, fishing, hiking, birdwatching, nature photography and other activities loosely called "naturalizing". These activities take place within SJRWMD boundaries and rely on wildlife species which live in, or are dependent upon, isolated wetlands. FWF attracts membership by publicity of its existence and purpose directed to sportsmen and naturalists. Respondent, SJRWMD, is a political subdivision of the state of Florida, with the authority to regulate, through its permitting process, the management and storage of surface waters (MSSW) within its designated geographical boundaries, pursuant to Part IV of Chapter 373, F.S. Prior to adoption of the administrative rules in issue in this proceeding, the Florida Department of Environmental Regulation (DER) delegated to Respondent the responsibility for administration of its stormwater rule. Intervenors conduct heavy metal mining operations within the District. These mining operations are regulated pursuant to Chapter 40C-4, F.A.C. and the Applicant's Handbook. Virtually all mining activities exceed existing permitting thresholds and all District wetland criteria apply to the activities. Since 1983, SJRWMD has been regulating wetlands and wetland MSSW impacts, including isolated wetlands, throughout its 19-county area. The rules adopted in 1983 included all wetlands, both isolated and non-isolated. In 1986, the legislature created Section 373.414, F.S., which provided as follows: 373.414 Wetlands.-- By March 31, 1987, for those water management districts to which the department has delegated the responsibility for administration of its stormwater rule, each district shall adopt a rule which establishes specific permitting criteria for certain small isolated wetlands which are not within the jurisdiction of the department for purposes of regulation of dredging and filling. The rule shall include: One or more size thresholds of isolated wetlands below which impacts on fish and wildlife and their habitats will not be considered. These thresholds shall be based on biological and hydrological evidence that shows the fish and wildlife values of such areas to be minimal; Criteria for review of fish and wildlife and their habitats for isolated wetlands larger than the minimum size; Criteria for the protection of threatened and endangered species in isolated wetlands regardless of size and land use; and Provisions for consideration of the cumulative and offsite impacts of a project or projects. This section does not affect the authority of the water management districts to regulate impacts on water quality and water quantity. Until a water management district has adopted a rule to implement the provisions of subsection (1), review of fish and wildlife impacts in small isolated wetlands shall be limited to: Wetlands that are 5 acres in size or larger; or Wetlands that are used by a federal or state designated threatened or endangered species; or Wetlands located within an area of critical state concern designated pursuant to chapter 380; or Wetlands that are less than 5 acres in size having a cumulative total acreage greater than 30 percent of the total acreage proposed for development, within a development project greater than 40 acres in size. Section 373.414(3), F.S. (1986) was repealed effective March 31, 1987, the deadline by which the districts were to have their own isolated wetlands rules in place. Sections 373.414(1) and (2), F.S. remain in effect. "Wetlands" is defined in SJRWMD's MSSW rule as: ...hydrologically sensitive areas which are identified by being inundated or saturated by surface or groundwater with a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas. Rule 40C-4.021(11), F.A.C. This definition is repeated in Section 10.7.3 of the Applicant's Handbook. Section 10.7.3 also provides: Wetlands are important components of the water resource because they serve as spawning, nursery and feeding habitats for many species of fish and wildlife, and because they provide important flood storage and water quality benefits. Not all wetlands provide these benefits, nor do they provide them to the same extent. A wide array of physical and chemical factors affect the functioning of any wetland community. * * * Small isolated wetlands are totally unique biological systems. They are not small versions of large wetlands. They play two major roles in animal ecology: to harbor diverse species that use the habitat for their entire life cycle, and to provide a productive resource for transient species. If a wetland is truly isolated, its fish population is generally limited to the smaller-bodied, smaller-mouthed varieties which are limited in their predatory abilities. This permits the abundance of amphibians and invertebrates not found in larger, more permanent wetlands where the fish would rapidly decimate the population. Amphibians are a cornerstone of the vertebrate food chain. They are food for a variety of snakes, which in turn, are food for hawks. Wading birds find easy prey as the isolated wetlands begin drying up and contracting. The entire cycle of the pond, from fully wet to dry, is significant. Ambystoma tigrinum (tiger salamanders) are hatched and raised in isolated wetlands; they leave, and must return to breed in the same pond. They have a strong homing instinct. Ignorant of intervening events, they are often found spending their honeymoon dodging cars on an apartment complex pavement, seeking in vain the pond of their birth. The SJRWMD adopted Chapter 40C-4, F.A.C. and its Applicant's Handbook to regulate the construction, operation, alteration, removal or abandonment of surface water management systems, to insure that those activities will not harm the water resources of the District and insure that they are consistent with the objectives of the District. Activities which do not meet certain thresholds established in Rule 40C-4.041, F.A.C. do not require a District MSSW permit, including those activities impacting an isolated wetland. The threshold provisions pre-date Section 373.414, F.S. and still apply. The threshold provisions of Rule 40C-4.041(2)(b), F.A.C., challenged by Petitioners, state as follows: 40C-4.041 Permit Required. * * * (b) An individual or general permit is required prior to the construction, alteration, operation, maintenance, abandonment or removal of a surface water management system which: Is capable of impounding a volume of water of forty or more acre feet; or Serves a project with a total land area equal to or exceeding forty acres; or Serves a project with a total land area equal to or exceeding ten acres, when any part of the project is located within the Wekiva River Hydrologic Basin north of State Road 436; or Provides for the placement of twelve or more acres of impervious surface which constitutes 40 or more percent of the total land area; or Provides for the placement of one half acre or more of impervious surface, when any of the impervious surface is located within the Wekiva river Hydrologic Basin north of State Road 436; or Contains a traversing work which traverses: A stream or other watercourse with a drainage area of five or more square miles upstream from the traversing work; or An impoundment with more than ten acres of surface area; or Contains a surface water management system which serves an area of five or more contiguous acres of a hydrologically sensitive area with a direct hydrologic connection to: A stream or other watercourse with a drainage area of five or more square miles; or An impoundment with no outfall, which is not wholly owned by the applicant and which is ten acres or greater in size; or A hydrologically sensitive area not wholly owned by the applicant. Is wholly or partially located within the Wekiva River Hydrologic Basin's Riparian Habitat Protection Zone as described in paragraph 40C-41.063(3)(e). The same threshold provisions are contained in Section 3.3.1, Applicant's Handbook, also challenged by Petitioners. In 1987, after passage of Section 373.414, F.S. the District amended its wetland regulations to provide that all wetlands would be evaluated, regardless of size, within the already-established permit thresholds: A wide variety of wetland habitats exist within the St. Johns River Water Management District. The functions which these habitats serve are dependent on many factors. Biological and hydrological evidence demonstrate that size is not the single determinant of wetland value. Since the District bases its evaluation on wetland functions, the District will review impacts to all wetlands (a zero acre threshold will be employed) in reviewing impacts to fish and wildlife and their habitats for systems requiring a permit from the District. * * * 10.7.5 Wetland Evaluation Applicant's Handbook As the result of an objection by the Joint Administrative Procedures Committee (JAPC) stating that the District had failed to comply with Section 373.414(1)(a), F.S., the District amended the zero acre review threshold for isolated wetlands and adopted a 0.5 acre review threshold, based upon biological investigations indicating that wetlands below this size have minimal fish and wildlife value. In all applications for MSSW permits under Chapter 40C-4, the District reviews impacts to isolated wetlands unless those wetlands are less than 0.5 acre in size and are not used by threatened or endangered species. No permit application, however, is required for projects under the thresholds described in paragraph 13, above, even though those projects might include wetlands larger than 0.5 acres. Staff of the SJRWMD concedes that the non-regulated isolated wetlands might have significant value and agrees with Petitioner's experts that isolated wetlands found in projects below the Rule 40C-4.041(2)(b), F.A.C. thresholds (called "get-in-the-door" thresholds) could have more than minimal fish and wildlife value. Petitioners challenge the entire Chapter 40C-4, F.A.C. and Applicant's Handbook for non-compliance with Section 373.414(1)(d), F.S. The SJRWMD does not consider, and nothing in its rules require consideration of, cumulative impacts of a series of isolated wetlands included in below-threshold projects even though there could be a negative cumulative impact from the loss of those wetlands. Petitioners challenge section 10.7.4 Wetland Review Criteria, Applicants Handbook, to the extent that it may limit consideration of impacts to isolated wetlands to off-site aquatic and wetland dependent species, unless threatened or endangered species are involved. This section provides in pertinent part: 10.7.4 Wetland Review Criteria In determining whether a system will meet the objective contained in Paragraph 9.1.1(j) and that part of the criterion contained in Paragraph 10.2.1(e) regarding hydrologically related environmental functions, the District will, except when threatened or endangered species are involved, consider only the impacts to off-site aquatic and wetland dependent species relative to the functions currently being provided by the wetland to these types of fish and wildlife. This assessment of off-site impacts is based upon a review of pertinent scientific literature, soils and hydrologic information, and a general understanding of the ecological resources of the site. Generally, site specific biological data collection is not required. An applicant must provide reasonable assurance that a proposed system will not cause adverse off-site changes in: the habitat of an aquatic and wetland dependent species, the abundance and diversity of aquatic and wetland dependent species, and the food sources of aquatic and wetland dependent species. The only exception to limiting review of a system under this Subsection to off-site impacts is where wetlands are used or reasonable scientific judgement would indicate use by threatened or endangered species listed in Sections 39-27.003 and 39-27.004, F.A.C., which are aquatic or wetland dependent. In this instance, both off-site and on-site impacts will be assessed. Petitioners also challenge section 16.1.3(a), Applicant's Handbook, to the extent that it may limit mitigation requirements to off-site impacts. If a project as initially proposed is subject to Respondent's surface water permitting requirements, and as initially proposed fails to meet wetland review criteria, mitigation may be considered as a means of bringing the proposed project within permitting requirements. The challenged portion provides: 16.1.3 Mitigation (a) Mitigation is defined here as action or actions taken to offset the adverse effects of a system on off-site functions and in the care of threatened or endangered species, to offset the adverse effects of a system on on-site and off-site functions. Although there may be a difference in degree of functions performed by isolated wetlands on site, as compared to the degree of functions performed by isolated wetlands off-site, the difference in negligible. Adverse ecological effects on-site will also be felt off-site. In developing its criteria SJRWMD staff could not conceive of a situation where a functioning wetland or isolated wetland would be eliminated and not have an off-site impact. Finally, Petitioners challenge the last paragraph of Section 16.1.4, Applicant's Handbook, related to mitigation for mining projects that fall under the jurisdiction of the Department of Natural Resources (DNR) pursuant to section 378.601, F.S. (heavy mineral extraction). Section 16.1.4, Wetland Creation, Applicant's Handbook, provides guidelines to be used to estimate the extent of wetland creation which may mitigate for the destruction of a unit of wetland. The challenged portion of the section provides: For lands and mining activities that fall under the jurisdiction of the Florida Department of Natural Resources pursuant to section 378.601, F.S. mitigation or compensation plans that are consistent with the land reclamation policies and criteria approved by that agency will be considered by the District as satisfactory mitigation. (emphasis added). The District is not required to allow mitigation if impacts are so substantial that they cannot be offset. If the District does not consider a DNR reclamation plan as sufficient, the District applies its wetland review criteria in section 10.7.4, Applicant's Handbook. For heavy mineral mining, DNR requires one-to-one mitigation for every wetland, regardless of type, that is disturbed by the zoning activity, and the restoration of wildlife habitat, including threatened or endangered species. Heavy mineral mining, in contrast to other mining such as phosphate, has far less impact on the environment. This is reflected in the success which has been experienced in restoring wetlands disturbed by heavy mineral mining.
Findings Of Fact On or about January 1986, Petitioner, Peggy Cobb, looked at the land located at 5712 Bay Forest Drive, Pensacola, Florida, the property under consideration in this action. Ms. Cobb was shown the property by Shirley Higdon who allegedly had an ownership interest in the property. At the time Ms. Cobb looked at the property it was forested and she did not notice that it was low property. The property backed up to a man-made drainage ditch, but was not otherwise located close to any body of water. Ms. Cobb liked the property and gave Ms. Higdon a binder of $1,000. She signed a contract to purchase the property when a house of her specifications had been built on the lot. The contract to build the house was with Higdon Homes, Inc., the actual title holder of the property. Higdon Homes' President was C.R. Higdon, the son of Shirley Higdon. The purchase contract signed by Ms. Cobb made Mr. Higdon and Higdon Homes, Inc. responsible for building the house on the property. Ms. Cobb only supplied the house plans. Higdon Homes, Inc. was responsible for the site plan placing the home on the property, determining grade and elevation, obtaining the necessary permits for items requiring permits, and ensuring that the house was otherwise built according to the house plans supplied by Ms. Cobb. Ms. Cobb had no control over Higdon Homes or over the detailed aspects of building the home Ms. Cobb had selected. Ms. Cobb did not control Higdon Homes' hiring and firing of personnel, the work hours of the personnel, or the scheduling of the personnel, or subcontractors. In all respects, Mr. Higdon and Higdon Homes, Inc., would be independent contractors under the purchase contract since Ms. Cobb could not control either party in his or its performance. The fact that she had a general knowledge of the status of the construction project does not in any way take away from the independent contractor status of Higdon Homes and C.R. Higdon. Mr. Higdon and Higdon Homes, Inc., began construction of Ms. Cobb's home sometime in February 1986. That same month, Higdon Homes placed fill material on the Bay Forest Drive property. At no time did Higdon Homes or Mr. Higdon obtain a fill permit from DER for the placement of the fill on the Bay Forest Drive property. Construction went along in a normal fashion until June 25, 1986 when Charles Harp, Respondent's Environmental Specialist, conducted a field inspection of the property and preliminarily concluded that there was fill placed on wetlands within DER's jurisdiction. Ms. Cobb discovered that DER had conducted a field inspection when an employee of Higdon Homes told her about a "DER person inspecting the property and indicating that it was in violation of DER Rules and Regulations." Ms. Cobb immediately called DER and spoke with Elizabeth Petty, an Enforcement Specialist with DER in dredge and fill and storm water permitting. Ms. Cobb was, understandably, very upset since the field inspector indicated there was a violation regarding the fill's placement and that she may not be able to further fill her very wet backyard. This was her dream home and the dream was suddenly developing problems. She was only two days away from closing on her house and didn't know what to do. Ms. Petty advised her to call back the next day to talk to the field inspector Charles Harp. Ms. Cobb called Mr. Harp the next day. Mr. Harp indicated to her that she would have to remove the fill and perhaps tear down her house since a corner of the house appeared to be in DER jurisdiction. Ms. Cobb became even more upset. At this point, Ms. Cobb was under extreme pressure from Mr. Higdon to close on the house. Mr. Higdon assured her that nothing would happen and DER would only fine him and he would be able to fill the land anyway. She contacted two attorneys who advised her to go ahead and close the sale, but close contingent on the builder correcting any deficiencies or developing DER problems. Ms. Cobb followed the advice of these attorneys and closed on the house on June 27, 1986. That same day Cliff S. Rohlke, Jurisdictional Specialist for DER, performed an inspection to formally determine the landward extent of DER's jurisdiction over the Bay Forest Drive property. His inspection revealed the property was adjacent to a man-made ditch flowing continuously into Ramsey Canal. Ramsey Canal then flows continuously into Perdido Bay. The original soil beneath the fill was hydric soil. There was no canopy on the property. However, the adjacent lots were undisturbed and Mr. Rohlke observed several plant species identified by rule as being submerged wetland plants growing. Based on his observations, it was Mr. Rohlke's opinion that DER's jurisdiction extended across the back of the lot, beginning approximately 20 feet west of the eastern lot line and crossing the property diagonally until exiting the property at the junction of the north and west lot lines. The jurisdictional area included a corner of the house. Fill material was placed in the entire area described by Mr. Rohlke's findings. This area does fall within the landward extend of DER's jurisdiction over wetlands and to the extent fill material was placed in that area without a permit would constitute a violation of Section 403.918, Florida Statutes. On July 8, 1986, approximately two (2) weeks after the closing, Ms. Cobb received a warning letter from DER which outlined the violation and requested removal of the fill and restoration of the property. On June 1, 1987, DER issued Ms. Cobb a Notice of Violation and Order for Corrective Action. The Order of Corrective Action required removal of 45 feet of the illegal fill material and allowed the home and the contiguous fill underneath the home to remain. Under the circumstances the corrections desired by DER are very reasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusion of Law, it is, RECOMMENDED: That the Notice of Violation and Orders for Corrective Action be dismissed against Respondent. DONE and ORDERED this 21st day of April, 1988, in Tallahassee, Florida. DIANE CLEAVINGER 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 21st day of April, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4169 Petitioner Peggy Cobb's proposed findings Numbers 1, 2, 3, 4, 7 and 8 have been adopted, in substance, insofar as material. Petitioner's proposed finding of fact Number 5 has been adopted except for the last sentence which was not shown by the evidence. Petitioner's proposed finding of fact Number 6 is subordinate. Respondent's proposed findings of fact Numbers 1, 4, 6, 7, 8, 10, 11, 13 and 16 have been adopted, in substance, insofar as material. Respondent's proposed finding of fact Number 2 is immaterial as to the present and not shown by the evidence as to the time the fill activity occurred. Respondent's proposed finding of fact Number 3 has been adopted except the evidence showed January to be the contract date. Respondent's proposed finding of fact Number 5 is subordinate. Respondent's proposed finding of fact Number 9 has been adopted except the evidence did not show Petitioner consulted with Higdon. Respondent's proposed findings of fact Numbers 12, 14 and 15 are irrelevant. COPIES FURNISHED: John R. Grass, Esquire 120 South Alcaniz Street Pensacola, Florida 32501 Richard L. Windsor Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale Twachtmann, Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 =================================================================
