The Issue The issue is whether Franklin County (County) has given reasonable assurance that it satisfies all requirements for an after-the-fact permit authorizing the construction of a rock revetment seaward of the coastal construction control line (CCCL) on Alligator Drive, also known as County Road 370.
Findings Of Fact The Nature of the Dispute The origins of this dispute date back a number of years. In short, the County currently has two adjoining revetments seaward of the CCCL on County Road 370 (Alligator Drive) located on Alligator Point in the southeastern corner of the County.1 County Road 370, situated immediately adjacent to the Gulf of Mexico, is a vulnerable structure and eligible for armoring. See Fla. Admin. Code R. 62B-33.002(64). The old revetment is permitted; the new revetment is not. Pursuant to a Department enforcement action directed at both revetments, the County applied for an after-the-fact permit to authorize the construction of the new revetment. See Case No. 12-3276EF. The two revetments, totaling around 2,800 feet in length, abut County Road 370 and join near the intersection of Alligator Drive and Tom Roberts Road. The road itself is around 50 or 60 feet from the edge of the revetments. The old revetment extends around 2,000 feet west of the intersection while the new revetment extends 800 feet east of the intersection. There is a curve in the road at the intersection, and at that point the road elevation drops two or three feet for an undisclosed distance. The revetments, however, run in a straight line. There is no beach and dune system in front of the old revetment, while a small amount of exposed sand is located on the far eastern end of the new revetment. Due to storm events over the years, unauthorized debris has been placed on top of the old revetment by the County. Under the terms of the enforcement action, the County is required to remove the debris. This will reduce the height of the old revetment by several feet below its original height of nine feet National Geodetic Vertical Datum (NGVD).2 Where the two revetments join, however, the height differs by only around a foot. The Bank owns property across the street from the old revetment and alleges that, for several reasons, the site and design of the new revetment, coupled with the reduction in height of the old revetment, will cause erosion of the shoreline around the old revetment and expose County Road 370 and the adjacent upland Bank property to erosion. Although the current design and location of the old revetment have been finalized through prior agency action, the Bank has asked that the permit be denied unless the County relocates rock boulders from the new to the old revetment and raises its height back to nine feet NGVD. The County asserts that the Bank's real aim here is to require the County, at taxpayer expense, to reconstruct the old revetment to its original height. Otherwise, the Department will not waive the 30-year erosion control line restriction and allow the Bank to fully develop its property that is seaward of the CCCL. See § 161.053(5)(b), Fla. Stat. The Old Revetment Since the late 1970s, the County has owned and maintained that portion of County Road 370 that is the subject of this dispute. In May 1986, the Department of Natural Resources, which was later merged with the Department, issued to the County CCCL Permit No. FR-204 for the construction of the old revetment, then 1,500 feet long. The revetment was located approximately 350 feet east of Department Reference Monument R-211 to approximately 150 feet west of the Department Reference Monument R-213. In November 1994, the Department issued to the County CCCL Permit No. FR-446 for the re-construction of the old revetment, as well as a 500-foot extension of the eastern limits of the structure with granite boulders. The revetment, as extended, is located approximately 540 feet west of Department Reference Monument R-212 to approximately 140 feet east of Department Reference Monument R-213. The permit did not authorize placement of any construction debris within the revetment. With the extension, the total length of the old revetment is now approximately 2,000 feet. After an application for a joint coastal permit to conduct a beach and dune restoration project was filed by the County in September 2006, a Department site inspection revealed the presence of concrete debris and other debris material stacked on top of the old revetment. A debris removal plan was formulated by the Department, which was intended to be incorporated as a special condition in the joint coastal permit. In May 2011, the joint coastal permit was approved and included a debris removal plan. Because of financial constraints, however, the County did not undertake and complete the work relating to the beach and dune restoration plan or the debris removal plan. In January 2012, another inspection was conducted by the Department to document how much debris was in the old revetment and where it was located. The inspection revealed the presence of a significant amount of concrete debris and other debris material scattered throughout the revetment and continuing eastward. That same month, largely at the urging of the Bank, the Department issued a one-count Notice of Violation (NOV) alleging that after a storm event in July 2005, the County placed unauthorized construction debris and other debris material in the old revetment seaward of the CCCL, and that the debris still remained within the footprint of the revetment. See Case No. 12- 3276EF. (The Bank unsuccessfully attempted to intervene in the enforcement action.) As corrective action, the County was required to remove all debris, seaward of the CCCL, from and adjacent to the footprint of the old revetment no later than 60 days after the end of the hurricane season. That work has not yet been performed, probably because the work on both revetments will take place at the same time. After the debris is removed, the height of the old revetment will vary from between five and eight feet NGVD rather than the original nine-foot height. This was not the relief that the non-party Bank desired in the enforcement action. Instead, the Bank has always wanted the old revetment to be reconstructed to the nine-foot NGVD standard authorized in the original construction permit. Even so, the enforcement action is now final, as no appeal was taken by the County. Except for the unauthorized debris, the old revetment meets all Department standards. The New Revetment Under emergency circumstances, between September 2000 and July 2005 the County placed material, including granite rock boulders and debris material, in a location east of the old revetment, seaward of the CCCL. The construction activity is located approximately 140 feet east of Department Reference Monument R-213 to approximately 80 feet east of Department Reference Monument R-214 and is around 800 feet in length. However, the County did not obtain a permit for the temporary structure within 60 days after its construction, as required by section 161.085(3), Florida Statutes. In July 2005, Hurricane Dennis made landfall in the Florida Panhandle causing damage to the shoreline along Alligator Drive. As an emergency measure after the storm event, the County placed rock boulders that had been displaced back into the new revetment seaward of the CCCL. The County also placed other unauthorized concrete debris and debris material within the footprint of the rock revetment seaward of the CCCL. Again, no timely authorization for this work was obtained by the County. In August 2012, the Department issued an Amended NOV in Case No. 12-3276EF adding a second count, which alleged that the County had failed to obtain a permit for the placement of the rock boulders and unauthorized debris. On April 18, 2013, the Department issued a Final Order in Case No. 12-3276EF. As to Count II, it gave the County two options for corrective action: (a) that the County submit "a complete permit application for a rigid coastal armoring structure located between Department reference monuments R-213 and R-214 that complies with all applicable Department permitting rules and statutes"; or (b) that "the County remove all material placed seaward of the CCCL pursuant to a Department approved debris removal plan[,]" leaving that portion of County Road 370 without a revetment. 2013 Fla. ENV LEXIS 16 at *16. Desiring to protect its infrastructure, the County opted to apply for an after-the-fact permit. The Permit Application In March 2013, the County filed an application for an after-the-fact permit for the construction of the new revetment. As directed by the Department, the County proposes to construct a new revetment located between Department Reference Monuments R- 213 and R-214. The height of the new revetment will be around nine feet NGVD, while its slope will be one vertical to three horizontal. The old revetment is not quite as steep, having a slope of one vertical to two horizontal. The application includes a debris removal plan for the removal of construction debris as well as other debris scattered through the new revetment. Construction debris occupies a large portion of the new revetment and largely appears to be associated with storm damaged concrete sidewalk. All derelict concrete and asphalt material that is located water ward of Alligator Drive and landward of the mean high water line is to be removed. Both the County and its engineering consultant will monitor the work at the project. After reviewing the application, the Department proposed to issue after-the-fact CCCL Permit FR-897. The Bank then filed its Petition, as later amended. Petitioner's Objections As summarized in its PRO, the Bank alleges that the County did not give reasonable assurance that the following statutory and rule provisions have been satisfied: section 161.053(1)(a), which provides that special siting and design considerations shall be necessary seaward of the CCCL "to ensure protection of . . . adjacent properties"; rule 62B-33.005(2), which requires that the applicant provide the Department with sufficient information to show that adverse impacts associated with the construction have been minimized and that construction will not result in a significant adverse impact"; rule 62B-33.005(3)(a), which requires that the Department "[d]eny any application for an activity which either individually or cumulatively would result in a significant adverse impact including potential cumulative effects"; rule 62B-33.0051(2), which provides that armoring "shall be sited and designed to minimize adverse impacts to the beach and dune system, marine turtles, native salt-tolerant vegetation, and existing upland and adjacent structures"; and rule 62B-33.0051(2)(a), which requires armoring to "be sited as far landward as practicable to minimize adverse impacts . . . on existing upland and adjacent structures." See PRO, pp. 16-17. A common thread in these regulatory citations is that a revetment should be constructed in a manner that does not cause adverse impacts on "adjacent property." Except for the above cited provisions, no other permit requirements are contested, and the County's prima facie case satisfied those other requirements. The Bank's odd-shaped property, acquired in a foreclosure proceeding, abuts that portion of Alligator Drive immediately adjacent to the old revetment. The eastern boundary of the Bank's property is at least 300 feet west of the new revetment and extends westward along County Road 370 until it intersects with Harbor Circle. The entire tract is separated from the old revetment by County Road 370, a two-lane paved road. The property was once used as a KOA campground; however, the predecessor owner acquired development rights for a Planned Unit Development, which apparently cannot be fully developed unless the old revetment is raised back to its original height by the County or some other acceptable form of erosion protection is provided by the Bank at its own expense. The essence of the Bank's complaint is that the new revetment, as now sited and designed, will expose the old revetment to a higher rate of erosion, and ultimately accelerate the erosion of its property across the street. The Bank asserts that this will occur for three reasons. First, the removal of construction debris from the old revetment will lower its height, weaken the structure, and create a "discontinuity in height and composition between the revetments," resulting in increased exposure to erosion. Second, the toe of the new revetment (at the western end of the structure) will extend ten feet further seaward than the old revetment, creating a discontinuity and placing the old revetment at higher exposure to erosion. Finally, the Bank contends a discontinuity already exists between the two revetments due to the curved shape of the road at the intersection, causing the western end of the new revetment to extend further seaward than the old revetment. The Bank argues that the discontinuity will amplify the wave action on the shoreline during a severe storm event and eventually cause a breach of the old revetment. In sum, the Bank is essentially arguing that unless the two revetments mirror each other in height and slope, and consist of the same construction materials, the after-the-fact permit must be denied. The Bank's expert, Mr. Chou, a coastal engineer, was employed shortly before the final hearing and made one visit to the site. Regarding the removal of unauthorized construction debris from the old revetment, Mr. Chou was concerned that, while not ideal, the debris offers a degree of shoreline protection. He recommended that if removed, the debris be replaced with boulders comparable to the design standard of the new revetment. However, the record shows that when the loose and uneven debris is removed from the old revetment, the existing rocks will be moved to an interlocking or "chinking" configuration that actually enhances the stability and integrity of the structure.3 The Bank is also concerned that the height and slope of the two revetments differ. Mr. Chou testified that there exists the increased potential for erosion as a result of what he described as a discontinuity, or a difference of characteristics, between the two revetments. He opined that the protective function of the old revetment will be compromised by the removal of the granite boulders, which will lower the overall height of the revetment between two and four feet. According to Mr. Chou, if the new revetment suffers a direct hit by a major storm, i.e., one capable of dislodging the armor, he would "expect damage, significant damage, right next to it." Mr. Chou conceded, however, that if a permit is not approved, and the County elects to remove the new revetment, it could result in a significant adverse impact to property located along Alligator Drive. Mr. Chou further acknowledged that there will be no significant adverse effect on the old revetment during "everyday" winds, waves, and currents. Finally, he agreed that if the toes of the new and old revetments are essentially the same, as the certified engineering plans demonstrate they are, it will "minimize" the discontinuity that he describes. Notably, in 2005, Hurricane Dennis actually caused accretion (an increase in sand) on the Bank property, rather than erosion. While there are some differences in height and slope between the two revetments, no meaningful differences from an engineering perspective were shown. Through the County's coastal engineer, Mr. Dombrowski, who over the years has visited the site dozens of times and worked on a number of major projects in the area, it was credibly demonstrated that the old and new revetments will, in effect, form one continuous armoring structure that will provide shoreline protection along Alligator Drive. In terms of toe, slope, height, and construction material, there will be one continuous and straight revetment along the road, with a "fairly consistent elevation and slope going from one end to the other." If a major storm event occurs, the impacts to both revetments will likely be the same. In any event, there is no requirement that the County construct a revetment that is storm proof or prevents severe storm damage. The preponderance of the evidence demonstrates that the new revetment is consistent with the siting and design criteria in rule 62B-33.0051(2). The design of the new revetment is consistent with generally accepted engineering practice. The new revetment is sited and designed so that there will be no significant adverse impacts, individually or cumulatively, to the adjacent shoreline. See Fla. Admin. Code R. 62B-33.005(3). The County has provided the Department with sufficient information to show that adverse and other impacts associated with the construction are minimized, and the new revetment will not result in a significant adverse impact to the Bank's property. See Fla. Admin. Code R. 62B-33.005(2). The new revetment should toll erosion – which now occurs on Alligator Point at the rate of five feet per year -- and provide shoreline protection. Finally, the construction of the new revetment will not cause an adverse impact to the old revetment. For all practical purposes, the two revetments have existed side-by-side since 2005. The Bank failed to offer any credible evidence that the new revetment has had a significant adverse impact on the old revetment over the last nine years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order approving the County's application for after- the-fact permit number FR-897. DONE AND ENTERED this 23rd day of July, 2014, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 23rd day of July, 2014.
The Issue The issues are whether Respondent committed the several violations of Sections 489.129(1)(h)2.,(h)3.,(j),(k), and (n), Florida Statutes (1997), for the reasons stated in the respective Administrative Complaints and, if so, what, if any, penalties should be imposed. (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of contracting. Respondent is licensed as a certified general contractor pursuant to license number CG C059414. At all relevant times, Respondent was the qualifying agent for Fred T. Garrett Construction, Inc. ("FTG"). As the qualifying agent, Respondent was responsible for all of FTG's contracting activities in accordance with Section 489.1195, Florida Statutes. Respondent failed to obtain a certificate of authority for Fred T. Garrett Construction, Inc., as required by Section 489.119(2), Florida Statutes. The St. Cyr Case On or about August 21, 1998, Respondent entered into a contract with Louis L. St. Cyr to construct an addition to the residence located at 201 South Bel Air Drive, Plantation, Florida. The contract price was $50,000. Although Mr. St. Cyr paid $2,500 to Respondent, Respondent failed to commence work and canceled the project, thereby abandoning it without just cause and without proper notification to Mr. St. Cyr. The contract did not permit Respondent to keep the $2,500 paid by Mr. St. Cyr, and Respondent failed to refund the payment within 30 days after abandonment. Out of the $2,500 he received from Mr. St. Cyr, however, Respondent paid $1,600.00 to the architect before abandoning the project. Thus, the net amount that Respondent owes to Mr. St. Cyr is $900. Petitioner incurred a total of $1,092.28 in investigative costs relating to the St. Cyr case. The Forney Case On May 22, 1998, Respondent, who was doing business as FTG, entered into a contract with Mr. Warren Forney for the construction of a two-bedroom, one-bath addition to the residence located at 1698 Northeast 33rd Street, Oakland Park, Florida. The contract price was $32,500. The contract with Mr. Forney did not contain a written statement explaining the customer’s rights under the Construction Industries Recovery Fund, as required by Section 489.1425(1), Florida Statutes. On July 7, 1998, Respondent obtained permit number 98-050297 from the Oakland Park Building Department. Construction commenced on or about July 7, 1998, and continued sporadically until October 29, 1998, when Mr. Forney dismissed Respondent for failure to timely complete the project. The Oakland Park Building Department issued notices of violation against the project on August 3, September 11, and October 14, 1998, for various building code violations. Mr. Forney was forced to obtain a homeowner’s permit and subsequently hired a subcontractor to complete the work. Mr. Forney paid Respondent approximately $29,250 before relieving Respondent of his duties. To complete the project, Mr. Forney paid a total of $48,746.52, which was $15,396.52 over and above the original contract price. Petitioner incurred a total of $2,190.78 in investigative costs relating to the Forney case. The Kong Case In or around January 1998, a contractor named Lakeview Concepts hired Respondent to perform demolition work for the Kong dry cleaning store project on the property located at 5171 South University Drive, Davie, Florida. On or about June 17, 1998, permit 98-00002349 was issued to Respondent to perform alterations on commercial property located at 5171 South University Drive, Davie, Florida. Respondent, however, did not yet have a contract with the owner for this work. The next month, on or about July 30, 1998, Respondent, who was doing business as FTG, entered into a contract with Shek Kong to complete the dry cleaning store project at 5171 South University Drive, Davie, Florida, for the contract price of $22,300. Shek Kong made payments to Respondent totaling $16,000. Respondent’s work was of poor quality, however, and on or about November 6, 1998, he ceased work, though the project had not been completed. On or about November 14, 1998, Douglas Frankow, license number CB C052960, gave Mr. Kong an estimate of $20,562 to complete the project. Thereafter, on or about June 30, 1999, Mr. Kong contracted with George Settergren, another licensed contractor, to complete the project for a contract price of $27,956. On December 9, 1999, in Case No. 98-020065 08, the Circuit Court, Seventeenth Judicial Circuit, Broward County, Florida, rendered a Final Judgment against Respondent and in favor of Mr. Kong. This judgment awarded Mr. Kong the total amount of $28,693.30, plus 10 percent interest per annum. Petitioner incurred a total of $2,502.78 in investigative costs relating to the Kong case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Construction Industry Licensing Board enter a Final Order finding Respondent guilty of violating Sections 489.129(1)(h)2., (h)3., (j), (k), and (n), Florida Statutes, imposing administrative fines in the aggregate amount of $3,700, assessing investigative costs in the aggregate amount of $5,785.84, placing Respondent's license on probation for a period of four years from the date the Final Order is entered by the Board, and awarding payment of restitution to each customer as follows: (1) to Warren Forney, the amount of $15,396.52; (2) to Shek Kong, satisfaction of the unpaid civil judgment in the amount $28,693.30, plus 10 percent interest accrued thereon; and (3) to Louis L. St. Cyr, the amount of $900. DONE AND ENTERED this 15th day of February, 2002, in Tallahassee, Leon County, Florida. _________________________________ JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 2002.
The Issue The issue to be decided is whether William Going failed to obtain a permit before installing water wells in Palm Harbor, Pinellas County, Florida, as required by the statutes and rules administered by the District under Chapter 373, Florida Statutes (2007)1, and, if so, whether the District’s proposed penalties are reasonable and appropriate.
Findings Of Fact The District is the regional agency charged with the power and duty to administer and enforce the provisions of Chapter 373, Part III, Florida Statutes, entitled “Regulation of Wells,” and the rules the District has promulgated pursuant thereto in Florida Administrative Code Title 40D-3. Respondent William Going is a licensed water well contractor, holding License No. 1564. On June 1, 2007, the District received a complaint alleging that Respondent had constructed water wells at 5068 Kernwood Court in Palm Harbor without first obtaining a well construction permit from the District. A subsequent inspection by the District disclosed that six “sand point” irrigation wells had been constructed at the Palm Harbor property, which is the residence of Stephen and Susan Althoff. The District had no record of a permit application for the wells and no well construction permit had been issued to Respondent to construct the wells at the Althoff property. Respondent admits that he constructed the wells at the Althoff property on June 1, 2007, and that he did so without first obtaining a well construction permit for the work. The District maintains a website where water well contractors can apply for water construction permits by filling out an on-line application. The District’s software program can automatically issue the permit if the information submitted by the applicant meets certain programmed parameters. Respondent testified that his wife attempted to access the website and to apply for the permit to construct the wells at the Althoff property, but she was unable to do so because she is not familiar with computers. Neither Respondent, nor his wife, telephoned the District to speak to the District’s permitting staff before the work was commenced at the Althoff property. Section 373.313(1), Florida Statutes, provides that in any geographic area where the Department of Environmental Protection (DEP) determines that prior permission to construct a water well would cause “undue hardship,” prior permission will not be required. Respondent made reference to this statute, but he did not show that the Althoff property is within a geographic area where DEP has declared that prior permission is not required for the construction of water wells. William Permenter, the District’s Field Technician Supervisor, has been regulating water well construction for many years, but is unaware of any such areas being designated. Respondent contends that if he had waited to obtain a permit before constructing wells at the Althoff property, it would have created a hardship for him because (1) water well construction in Pinellas County is very competitive and he probably would have lost the Althoff job if he had not done the work immediately; and (2) he would have paid the wages of his helper without a benefit (to Respondent). Section 337.326, Florida Statutes, establishes a procedure to seek an exemption from District rules to avoid an undue hardship. Respondent did not request an exemption from the District regarding the water wells constructed at the Althoff property. The competitive disadvantage that a water well contractor might face in waiting a day (or hours) to obtain a permit is not an undue hardship. Respondent’s potential loss in having to pay an employee for “down time” is not an undue hardship. On June 12, 2007, Respondent submitted an application to the District for a well construction permit for the wells at the Althoff property and the District issued Respondent a permit the following day. The Pinellas County Licensing Board issued a citation against Respondent pursuant to Section 489.127(5), Florida Statutes. The citation issued by the Board pertained to the same water wells that are the subject of the District’s enforcement case. A hearing was held before a Special Master designated by the Board and was prosecuted by a County employee. The Special Master issued a final order dismissing the case against Respondent. On or about August 15, 2008, the District issued its Complaint against Respondent, which seeks an administrative fine of $500 and the assessment of five points against Respondent’s water well contractor license. These penalties are consistent with the disciplinary guidelines that have been adopted by rule by the District.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the District issue a Final Order that imposes the penalties set forth in its Administrative Complaint and Order, dated August 15, 2008. DONE AND ENTERED this 11th day of March, 2009, in Tallahassee, Leon County, Florida. 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 11th day of March, 2009.
The Issue The issues in this case are: Whether Petitioner, Warren M. Briggs ("Briggs"), should be issued a Wetland Resource Permit (WRP) for the construction of a single-family dwelling on a lot with jurisdictional wetlands in Santa Rosa County, Florida, as proposed in his application submission of 1998; and Whether the Department would permit the construction of a single-family dwelling on the subject lot under conditions and circumstances other than those set forth in Briggs' application.
Findings Of Fact Briggs is the owner of Lot 67, Block H, Paradise Bay Subdivision, located in southern Santa Rosa County ("Briggs lot"). Paradise Bay Subdivision was developed in approximately 1980, prior to the passage in 1984 of the Warren Henderson Wetland Protection Act. (Official Recognition of Section 403.918, Florida Statutes). The subdivision consists of modestly priced single- family homes that are attractive to young families because of the quality of nearby schools. The typical non-waterfront home in the subdivision is single story, approximately 2,000 square feet in area, and built on a concrete slab. The typical setback from the road to the front edge of a home is 75 feet. This fairly consistent setback from the road prevents the view from one home into the adjacent property owner’s back yard and, thereby, adversely affecting the neighbor’s property value. The undeveloped Briggs lot was purchased in 1981 for approximately $15,000 and remains undeveloped. Briggs bought the lot, along with three other lots in the subdivision, as investment property. The other three lots have been sold. One of the lots sold earlier by Briggs was a waterfront lot on East Bay located in jurisdictional wetlands. The entire lot was filled pursuant to a permit issued by the Department. The Briggs lot is 90 feet wide by 200 feet deep. It is located on the south side of Paradise Bay Drive. The lots on the north side of Paradise Bay Drive are waterfront lots on East Bay. To the rear (south) of the Briggs lot and other lots on the south side of Paradise Bay Drive, is a large swamp that eventually discharges into East Bay. The major connection between the Briggs lot and East Bay is through a culvert under Paradise Bay Drive. The Briggs’ lot consists of 2,914 square feet of uplands and 15,086 square feet of state jurisdictional wetland, with all of the uplands located in the northern half of the lot. Converted to acres, the Briggs lot consists of 0.067 acres of uplands and 0.347 acres of state jurisdictional wetland. Lot 66, immediately east of the Briggs lot, has been cleared and is about half tietie swamp with the remainder consisting of uplands and disturbed wetlands. Some fill has been placed on the lot. Lot 68, immediately west of the Briggs lot, is undeveloped and consists of all tietie wetlands. Lots 69, 70 and 71 of Block H of the subdivision are undeveloped and consist primarily of wetlands. The Department issued a permit on October 31, 1996, that allowed the owners of Lot 71 to fill 0.22 acres (9,570 square feet) of wetlands. The fill is allowed to a lot depth of 145 feet on the west side, and to a width of 73 feet of the total lot width of 90 feet. The fill area is bordered on the east and west by wetland areas not to be filled. The Department issued a permit on November 13, 1997, that allowed the owner of Lot 61 to fill 0.26 acres (11,310 square feet) of wetlands. Fill is allowed over the entire northern 125 feet of the 185 foot-deep lot. On April 28, 1998, Briggs applied to the Department for a permit to fill Lot 67. The Department, in its letter of August 7, 1998, and its permit denial of September 2, 1998, erroneously described the project as consisting of 0.47 acres of fill. The entire lot consists of only 0.41 acres, of which 0.067 acres is uplands, leaving a maximum area of fill of 0.343 acres. If Briggs’ residential lot is to be used, some impact to the wetlands on the lot is unavoidable. Alternatives discussed by Briggs and the Department, three of which are still available for Briggs to accept, included the following: One hundred feet of fill with a bulkhead separating the fill from the wetland area, with no off-site mitigation; Fill pad could be placed on property with the remainder of the wetlands on the site to remain in their natural state with no backyard, with no off-site mitigation required; One hundred feet of fill with a bulkhead separating the fill material from the wetland, with a small back yard, with no off-site mitigation required. Briggs did not accept any of the foregoing alternatives or proposed acceptable mitigation measures.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying the permit application, provided that the parties may reach subsequent agreement regarding proper mitigation in order to make the construction of a single-family dwelling possible on the Petitioner’s property in this case. DONE AND ENTERED this 19th day of November, 2001, in Tallahassee, Leon County, Florida. _ DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 2001. COPIES FURNISHED: Charles T. Collette, Esquire Lucinda R. Roberts, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Jesse W. Rigby, Esquire Clark, Partington, Hart, Larry Bond and Stackhouse 125 West Romana Street, Suite 800 Post Office Box 13010 Pensacola, Florida 32591-3010 Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact Respondent made a timely request for formal hearing in response to Petitioner's Administrative Complaint. Respondent is Mark Allen Vanderwater. At all times pertinent to these proceedings, Mr. Vanderwater held certified general contractor license number CG-CO15948. His address of record is Coral Springs, Florida. John Andrews Anagnostaras, acting on behalf of Expedia Limited (Expedia), executed an agreement on December 17, 1986 with 2C.D.M., Inc., represented by Mark Allan Vanderwater, the Respondent. Under terms of the agreement ("Expedia- Vanderwater Agreement"), the Respondent's corporation agreed to act as General Contractor and provide certain services to Expedia in connection with the construction of the project known as "Bergin's Beer & Wine Garden" located in the Bayside Marketplace Development in Miami, Florida. This agreement titled the role of Expedia as "Owners Project Representative/Construction Manager." Among services to be provided by Respondent's corporation under the terms of the Expedia-Vanderwater Agreement, were: general construction services consisting of day to day supervision as requested by Expedia; provision of required licensing necessary to obtain construction permits; securing and delivery to Expedia of any required inspection, testing and approval certificates; collection and delivery to Expedia of all written warranties and equipment manuals; provision to Expedia of proof of Respondent's workman's compensation and general liability insurance coverage; and coordination of subcontractors and suppliers and delivery of the completed project to Expedia. Payments to Respondent, under terms of the Expedia-Vanderwater Agreement, were to consist of a $500 payment upon execution of the document, professional fees of $2,500, and $125 per day for daily supervision. As adduced from testimony at the hearing, a grand total of approximately $8,500 in fees was generated by Respondent. He received payments totalling $5,000 and claims he is still owed $3,500 by Expedia. The Expedia-Vanderwater Agreement specifically provided that payments to the various suppliers and subcontractors would be made directly by Expedia, as opposed to Respondent making such payments. While Respondent ordered materials, he made no payments of any consequence to subcontractors. Rather, the customers, Bergin and Sherman, made monetary payments to John Andrews Anagnostaras on behalf of Expedia. Numerous liens totalling at least $30,000 have been filed by various subcontractors due to lack of payment for supplies or services. The Expedia-Vanderwater Agreement further stipulated that Respondent's corporation would conduct all communications with the owners of the project through Expedia. The evidence fails to show that any communication from Respondent to Mr. Bergin or Ms. Sherman, the owners and customers, ever occurred through the conduit of Expedia. For that matter, the proof establishes that neither of the owners was aware of the involvement of Respondent or his corporation in the construction of the project until the closing days of March, 1987. Subsequent to execution of the "Expedia-Vanderwater Agreement," John Andrews Anagnostaras, again acting as representative for Expedia, executed an agreement with customers Kevin Bergin and Arlene Sherman. This agreement ("Expedia-Bergin Agreement") was signed on January 16, 1987, to confirm commencement of work on the Bergin project as of December 20, 1986. The Expedia-Bergin Agreement contemplated total project costs of $130,000 for construction of the commercial beer and wine retail store. The agreement designated Expedia as "Contractor" on the project. While the document reflects the signature of Arlene Sherman in a space provided for a witness, testimony at hearing established Ms. Sherman was also an owner in the project. An agreement with a subcontractor for supply and installation of the electrical network and accessories needed on the Bergin project was signed by John Andrews Anagnostaras on January 8, 1987. He also executed an agreement on January 7, 1987, with another subcontractor for manufacture, supply and installation of millwork on the Bergin project. An application, signed by Respondent and bearing the name and local address of Arlene Sherman as owner, resulted in the issuance of a building permit for construction of interior partitions, millwork, electrical and plumbing services, floor finishing and ceiling suspension work associated with the Bergin project. The permit was issued on January 29, 1987, well after the beginning of the project as documented in the Expedia-Bergin Agreement. Other than the pulling of the building permit and ordering of materials, Respondent's involvement with the project was negligible until the latter part of March, 1987. On March 18, 1987, during the course of a "walk through" inspection of the development where the Bergin project was being constructed, Petitioner's investigator was apprised that certain records of the developer of the Market Place at Bayside, Rouse Corporation, reflected the identity of the contractor on the Bergin project to be John Andrews Anagnostaras. Subsequent investigation revealed that neither John Andrews Anagnostaras or Expedia Limited are, or ever have been, registered or qualified as general contractors by the Florida Construction Licensing Board as required by law of the State of Florida. While the record is not clear regarding the exact date, a short time later a cease and desist agreement was executed by John Andrews Anagnostaras with the Petitioner wherein Mr. Anagnostaras agreed to desist from unlicensed contracting work. At about the time of the exposure of the unlicensed status of Expedia and its representative, Ms. Sherman was informed by Petitioner's investigator that the Bergin project would be shut down because of the contractor's lack of license. This was also the time when she received her first knowledge of the involvement of the Respondent in the Bergin project. Testimony of Kevin Bergin substantiates this evidence. Although he possessed a vague recollection of seeing Respondent in the background in one meeting with John Andrews Anagnostaras, Kevin Bergin learned of the Respondent's involvement in the construction project and the unlicensed situation regarding Expedia on or about April 1, 1987. Ms. Sherman met with Respondent at the construction site to prepare a "punch list" of unfinished items on the Bergin Project around the third week of March, 1987. This list of needs was formalized by Respondent and presented to Ms. Sherman on April 10, 1987. Respondent accomplished a minimal number of the items set forth in the "punch list," but failed to correct many major noted deficiencies such as installation of a brass bar, kitchen cabinets, beveled mirrors, ventilation for an ice machine, or replacement of three quarter inch counter topping for the previously installed one quarter inch topping. Ms. Sherman visited the project construction site an average of four days a week beginning in February, 1987, but has no clear recollection of the Respondent being there until meeting with him to prepare the "punch list." She does recall discussing the delay in millwork with the Respondent, and, while the date of this conversation could not be recalled, the discussion likely took place in the latter part of March, 1987. Respondent testified he appeared on the project construction site approximately 30 of the roughly 90 days of the project's duration. The length of his visits varied from a few minutes to a few hours, according to Respondent. He also testified that he considered himself the general contractor on the project and was without knowledge of the Expedia-Bergin Agreement assigning that role to Expedia. Further, he testified that he figured the owners lived in New York. This testimony of the Respondent is not credited in view of the address of Ms. Sherman on the building permit application and the Respondent's unsuccessful, insistent and contradictory attempts during the hearing to have Ms. Sherman recall several meetings with him during the time of the construction of the project. While Respondent provided a March 9, 1987, notice to the Rouse Corporation as the developer of the Marketplace at Bayside that Respondent was providing general contracting, site supervision and coordination services in connection with the Bergin project, the evidence fails to show provision of similar notice to owners Sherman and Bergin. Respondent was aware that Expedia and John Andrews Anagnostaras were not licensed as general contractors under Florida law. Respondent failed to qualify either Mr. Anagnostaras or Expedia as an affiliate with Respondent's corporation as required by section 488.119, Florida Statutes. Respondent aided a contractor (John Andrews Anagnostaras d/b/a Expedia) not properly licensed under state licensing laws by obtaining or authorizing the obtaining of a permit, through use of Respondent's license, for a construction job known as "Bergin's Beer and Wine Garden." Respondent failed to properly supervise the finances on such construction job. By his own admission and the terms of the Expedia-Vanderwater Agreement, he relinquished to the unlicensed contractor all responsibility for finances connected with subcontractors.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the offenses charged in the administrative complaint and imposing a penalty of $1500 and probation for a period of one year upon such terms and conditions as may be set by the Construction Industry Licensing Board. DONE AND RECOMMENDED this 18th day of February, 1988, in Tallahassee, Florida. DON W. DAVIS 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 18th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5331 The following constitutes my specific rulings in accordance with section 120.59 (2), Florida Statutes, on all proposed findings of fact submitted by the parties: Proposed findings submitted by Petitioner Proposed findings submitted by the Petitioner consisted of 12 paragraphs, paragraphs 5-12 being unnumbered. Those paragraphs have been numbered and all proposed findings are treated as follows: Included in finding number 2. Rejected as unnecessary. Included in finding number 10. Included in finding number 10. Included in findings number 3, 4, 10, 12, 14 and 15. Included in finding number 14. Included in findings number 3, 4, 6, 14, IS and 22. The first sentence is included in finding number 16. Remainder rejected as unnecessary. Included in findings 16, 17 and 18. Included in findings 7 and 11. Included in finding number 7. Included in findings 18 and 19. Proposed findings submitted by Respondent While unrepresented at hearing, Respondent's proposed findings were filed on his behalf by Edmond L. Sugar, Esquire. Although untimely filed with the Division of Administrative Hearings (6 days after the required deadline determined at hearing) and unnumbered, those 21 paragraphs have been numbered 1- 21 and are treated as follows: Included in finding number 2. Rejected as unnecessary. Included in finding number 10. As to co-ownership, this proposal is included In finding number 10. The remainder is rejected as unnecessary. Rejected as contrary to the weight of the evidence. Mr. Anagnostaras held himself out to the owners as an independent contractor. Included in findings numbered 3, 4 and 6. Rejected as not supported by the evidence, see Petitioner's exhibit number 5. Rejected on the basis of credibility. Included in finding number 19. Included in finding number 12. Rejected as not consistent with the evidence. Rejected as not consistent with the evidence. Rejected as unnecessary. Rejected as unnecessary. Included only as to signing of cease and desist agreement in finding number 14. Rejected as to remainder of proposal as not supported by the evidence. See Petitioner Exhibit 3. Included in finding number 17 as to date documentation of the punch list was submitted to Ms. Sherman. Remainder of proposal rejected as not supported by the evidence. Rejected, not supported by the evidence. Rejected as unnecessary. Rejected as unnecessary and not supported by the evidence. Rejected as not supported by the evidence. Rejected as not supported by the evidence. COPIES FURNISHED: Lee Sims, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mark Allen Vanderwater 3244 Coral Ridge Drive Coral Springs, Florida 33065 Edmond L. Sugar, Esquire HUNTER & HUNTER, P.A. 1930 Tyler Street Hollywood, Florida 33020 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Post Office Box 2 Jacksonville, Florida 32201
The Issue Whether Petitioner’s application for a variance to permit an onsite treatment and disposal system should be approved.
Findings Of Fact The lot of land for which the Bank seeks a variance for an onsite sewage treatment and disposal system is located at 341 Compass Lake Drive in Jackson County, Florida. The lot is approximately 40 feet wide and 300 feet deep, with approximately 40 feet of frontage on Compass Lake. Prior to its severance in 2010, the lot was part of a larger parcel of land with an address of 343 Compass Drive in Jackson County. The larger parcel was owned by Charles Paulk and had substantial improvements consisting of a house, boathouse, and dock. In 2004, Mr. Paulk borrowed money from the Bank and gave the Bank a mortgage lien on the entire larger parcel to secure the loan. At some point, a survey was prepared which subdivided the larger parcel into two lots -- the first containing the substantial improvements, and the other consisting of the approximately 40-foot by 300-foot lot at issue, which is .28 acres in size, with no improvements. There is no indication that the survey was ever recorded in the public records. Later, in 2010, Mr. Paulk decided to sell the lot with the substantial improvements for $330,000. Because the Bank had a lien on the entire larger parcel, Mr. Paulk requested that the Bank release its lien on the lot with the substantial improvements. The Bank agreed to release its lien on the lot with substantial improvements and, after receiving what the Bank felt was a “sufficient pay-down” on the loan, shifted its lien to the smaller, unimproved lot that is at issue in this case. The sale and release of lien transaction “substantially reduced the loan versus the collateral value” that the Bank previously had. According to the Bank’s Senior Vice President, James Goodson, after the sale transaction, there was “not a lot of money left on the loan ” Mr. Goodson testified that, at the time that the Bank agreed to release its lien on the substantially improved lot and shift its lien to the remaining unimproved lot, it was unaware that a variance would be required for an onsite sewage treatment and disposal system (septic tank) on the unimproved lot. The facts as outlined above, however, demonstrate that the Bank was an active participant and beneficiary of the transaction that ultimately resulted in the creation of the two lots, one of which was the approximately 40-foot by 300-foot unimproved lot at issue in this case. In 2012, Mr. Paulk experienced financial problems and was having difficulty paying back the loan to the Bank secured by the unimproved lot. Because it was easier than foreclosure, the Bank agreed to take a deed to the unimproved lot in lieu of foreclosure.1/ At the time of the Bank’s release of lien in 2010, as well as at the time of the deed in lieu of foreclosure, the 40- foot by 300-foot lot size of the unimproved lot was too small to meet the statutory requirements for a septic permit. Mr. Goodson testified that, at the time that the Bank accepted the deed in lieu of foreclosure, the Bank was aware that the lot was too small and would need a variance for a septic tank. He did not explain, however, why the Bank had earlier been unaware of the need for a variance when it agreed to release its lien on the substantially improved lot in 2010. After the Bank acquired title to the unimproved lot, a third party offered to purchase it on the condition that the Bank could obtain a permit. The Bank went to Jackson County to request a permit, knowing that its request would be denied because the lot size was insufficient for a septic tank without a variance. Nevertheless, the Bank believed that it would qualify for a variance on hardship grounds because it did not “intentionally” create the hardship. The Bank commenced the permitting process by submitting an application with the Jackson County Health Department on October 4, 2012. The County denied the application on the grounds that the lot was deficient in width and total area. Next, the Bank submitted a request to the Department for a variance. The request was considered by the Department’s Variance Review and Advisory Committee (Committee) on December 6, 2012. The Committee has only recommending authority to the State Health Officer. In a four to three vote, the Committee recommended approval of a variance. The members voting against a recommendation for approval were representatives of the State Health Office, the Department of Environmental Protection, and the County Health Department. Eight objections from adjacent property owners were provided to the Committee’s review and consideration. After considering the facts, including the decision of the County Health Department, objections filed by adjacent property owners, actions taken by the Bank, and the recommendations of all the members of the Committee, Gerald Briggs, Bureau Chief for Onsite Sewage Programs for the Department of Health, made the Department’s preliminary decision that the Bank’s variance request should be denied, concluding, among other things, that “[a]ny perceived hardship that [the Bank] might experience as a result of the obligation to meet established standards comes about as a direct result of your own proposed action.” Likewise, considering the facts and evidence as presented in this case, the undersigned finds, as a matter of fact, that the Bank intentionally participated in and benefitted from the transaction that resulted in the hardship posed by the small lot size that it now owns and for which it seeks a variance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a Final Order denying SunSouth Bank’s application for a variance. DONE AND ENTERED this 21st day of March, 2014, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, 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 21st day of March, 2014.
Findings Of Fact Twelve-acre Lake Tresca lies at an elevation of approximately 8 feet on the northern edge of sand dunes that stretch some 250 yards south to the Gulf of Mexico in Walton County, Florida, just east of Eastern Lake. According to one of petitioners' witnesses, this group of freshwater lakes in a dune system may be unique. Lake Tresca is a source of freshwater for migrating birds, at the gulf's edge. White, great blue, and Louisiana herons feed in the lake's shallows. Purple martins are present in numbers. The eastern lobe of Lake Tresca is in excellent place for birds to feed and nest. The lake has a balanced fish population. Game fish as big as the ten-pound bass spotted by Douglas B. Bailey of the Florida Game and Freshwater Fish Commission have smaller fish on which to feed, including gambusia and other minnows that feed, in turn, on mosquito larvae. Lake Tresca is oligotrophic. There are no aquatic weeds, but there are fragrant water lilies, bladder wort, yellow-eyed grass, and other plant species valuable to wildlife. Most of the lake bottom is bare of vegetation, but the shallow, littoral portions support various plants, including significant colonies of rooted macrophytes, and furnish a suitable habitat for bedding fish. This vegetation removes some nutrients, makes others more usable, filters runoff from the surrounding yards, and stabilizes the shoreline. Bacteria and algae, primary constituents of the lake's "food web," also flourish in Lake Tresca. A shallow area of Lake Tresca stretches across part of Mr. Copelan's half-acre lot onto the Pettengills' lot. The application for permit uses this diagram to represent the configuration: * NOTE: A map of the pond is on the Recommended Order on file with DOAH and is not available in this ACCESS document. Lake Tresca Copelan Property Pettengill Property Petitioners' Exhibit No. 9. (Legend supplied.) The Pettengills have built a house on their lot for occasional, seasonal use and with a view toward his retirement. Their septic tank is about 80 feet from the lake. The house was built to take advantage of the prevailing southwesterlies and has a porch facing Lake Tresca and the causeway. The house has no air conditioning. Except for the causeway, Mr. Copelan's lot is unimproved. There are about 14 other riparian owners many of whom have built houses and put in septic tanks. After discussions between Mr. Copelan and Mr. Pettengill about an easement across the Pettengill property, to provide access overland to the Copelan property, had faltered, Mr. Copelan indicated that he might place fill dirt across the lake so as to block the Pettengills' access to the main body of the lake and to create a roadbed for travel across the lake to and from his lot. As a result, on April 20, 1980, Mr. Pettengill wrote Mr. Copelan a letter in which he stated: Any dredging, filling or other manmade changes may be accomplished only if proper permits are obtained in advance for them. I have taken the liberty of attaching copies of relevant sections of Florida Statutes and the Florida Administrative Code regarding the required procedures for these activities. Petitioners' Exhibit No. 8. Because, as he testified, Mr. Copelan had no faith in Mr. Pettengill's legal expertise, Mr. Copelan asked Marge Crawford, the real estate agent from whom he had purchased the land-locked lot, to inquire as to permits. At Ms. Crawford's instance, she and Curtis Larry Taylor, an environmental specialist employed by DER in Panama City, visited Lake Tresca on June 16, 1980. In a contemporaneous memorandum, Mr. Taylor recorded his impression that a DER permit "under the authority of Chapter 403 F.S. Section 17-4.28(2)(d) [Florida Administrative Code," DER's Exhibit No. 1, would be necessary for construction of the causeway Mr. Copelan had in mind. He furnished Ms. Crawford an application form to forward to Mr. Copelan. On June 19, 1980, Ms. Crawford wrote Mr. Copelan: I met with Mr. Taylor, of the Department of Natural Resources, Dredging and Fill Department and inspected the site at which you would like to put in a drive way. Mr. Taylor said he saw little inpact [sic] on the invironment [sic] and would recom- mend a permit be given. This would take 6 to 8 weeks with out any protests. The DNR will contact property owners around that portion of the lake. If there is a protest there will be a delay'. I think you can expect a protest from at least two owners. Fill out the application as soon as possible and mail it to the location indicated on the form. If I can be of help with he applica- tion let me know. I asked Mr. Taylor what would happen if you just went ahead and fill[ed] in that portion of the lake. He said nothing unless some- one files a complaint and then it could be costly, attorney fees. I also got another price on a road in for the long way, $8/per foot. Joint Exhibit No. 7. Mr. Copelan received and read the letters from Mr. Pettengill and Ms. Crawford, and read highlighted portions of the dredge and fill rules Mr. Pettengill sent him. In early August, without having applied for a permit, Mr. Copelan contracted with James A. Madden for the construction of a causeway across the eastern lobe of Lake Tresca. Work began in early August of 1980 and continued for four working days, a weekend intervening. Mr. Madden and his son used dump trucks and a bulldozer to haul sand from a borrow pit Mr. Madden has leased and to build a causeway 162 feet long with a top surface approximately 12 feet wide. About midway they placed a culvert with a 12-inch diameter to join Lake Tresca to the pool on the Pettengills' property severed by the causeway from the rest of the lake. On either side of the causeway, waiter lily and bladder wort are the predominant plant species. On August 11, 1980, Mr. Pettengill told DER's Mr. Taylor that work on the causeway had begun. The following day Mr. Taylor visited the site, and found yellow sand fill about 18 to 24 inches deep covering an area approximately 15 feet by 45 feet. Joint Exhibit No. 8. He found no telephone number listed for George Copelan but telephoned Marge Crawford on August 12 or 13, 1980, to ask her to tell Mr. Copelan to stop work. Joint Exhibit No. 8. On August 19, 1980, DER's Northwest District Enforcement Officer, George E. Hoffman, Jr., wrote Mr. Copelan advising him "to cease and desist from any further unauthorized filling." Joint Exhibit No. 5. By the time this letter reached Mr. Copelan, the causeway had been completed. On October 6, 1980, Mr. Copelan wrote Mr. Hoffman saying that he owned the land under the road and in general to the effect that he thought he was within his rights. Joint Exhibit No. 4. Mr. Hoffman responded with a letter to Mr. Copelan on December 23, 1980, in which Mr. Hoffman "requested that [Copelan] voluntarily agree to remove the fill and restore the area to its original contour. Joint Exhibit No. 6. This letter stated that, "Otherwise, the Department will have no alternative but to initiate a formal administrative enforcement proceeding . . . seeking the restoration." Joint Exhibit No. 6. On February 27, 1981, DER filed its notice of violation, No. DF-010- 81-NW, finding that the filling accomplished before August 12, 1980, had been accomplished without a permit, and that it "will have a detrimental [e]ffect on the water quality and may be potentially harmful . . . to the aquatic life of the lake" and that it had "created pollution violating Section 403.161(1)(a), Florida Statutes, and the rules of the Department." Joint Exhibit No. 1. Orders for corrective action contained in the same document proposed to require Mr. Copelan to reimburse DER for its expenses "in tracing, controlling and abating the source of pollution," to "cease aid desist from further unauthorized filling," and to remove the fill and restore the area to its original contours (even though by this time the causeway had been completed). Joint Exhibit No. 1. DER inspected on March 2, 1981, and learned that the causeway had been completed. Thereafter, the parties agreed to a consent order dated May 5, 1981, which provided, in part: Within thirty (30) days of the effective date of this Order, the Respon- dent shall submit an after-the-fact permit application for the construction and/or filling project described in this Order [the causeway] In the event the application is determined to be incomplete, the Respondent shall provide the requested additional information within a fifteen (15) day period. * * * In the event the application is denied, the Respondent agrees to remove the fill material and restore the area to its preproject contours within forty-five (45) days of the receipt of final agency action. Respondent does not waive his right to claim that the aforementioned fill project is exempt from the Department's permitting requirements and that this defense may be asserted by the Respondent in any future pleadings of proceedings. The Department, for and in consid- eration of the complete and timely perfor- mance by the Respondent of the obligations contained in this Consent Order, hereby agrees to waive its right to seek the judi- cial imposition of damages or civil penalties or to seek criminal penalties for the alleged violations outlined in this Consent Order. * * * 9. This Consent Order shall be a final agency action of the Department and may be enforced pursuant to Sections 120.69 and 403.121, Florida Statutes. The Respondent hereby waives any right to a hearing or administrative or judicial review of the provisions of this Consent Order provided however that the Respondent does not waive the right to assert defenses available pur- suant to Section 120.69(5), Florida Statutes, should the Department seek judicial enforce- ment of the Consent Order. The Respondent's failure to comply with the terms of this Consent Order shall constitute a violation of Section 403.161, Florida Statutes. Joint Exhibit No. 2. In accordance with the consent order, Mr. Copelan filed an application for an after-the-fact permit, which DER received on June 8, 1981. Petitioners' Exhibit No. 9. At DER's request, on August 17, 1981, James R. Webb, Esquire, counsel for Mr. Copelan, sent DER copies of a survey including a plan view and a cross- sectional view of the causeway, Applicant's Exhibit No. 2; Petitioners' Exhibit No. 10, and, on November 2, 1981, copies of a survey showing the approximate ordinary high water line. Applicant's Exhibit No. 2. Neither the application nor the supplemental information was prepared by a professional engineer. DER determined the application to be complete on November 3, 1981, and, on January 7, 1982, issued its intent to issue a permit to partially after-the-fact construct a road- way approximately 80' long by 20' wide by 3' high, in accordance with the attached drawing labelled "Fill Road" Sheet 1, Revi- sion No. 1 by R.E.P. 13 August, 1981; located in Section 19, Township 3 South, Range 18 West. Joint Exhibit No. 10. According to the case file, DER received the Pettengills' administrative petition for section 120.57 hearing on January 21, 1982; but a permit was nevertheless inadvertently mailed to Mr. Copelan on January 29, 1982. On receipt of the permit, Mr. Copelan caused oyster shells to be placed on the roadbed and sod to be planted along the sides of the causeway. The permit was followed by a letter from DER instructing Mr. Copelan to disregard it. APPLICATION INACCURATE In describing the causeway, the application gives its dimensions as "approximately 10 feet wide by 30 feet in length." Petitioners' Exhibit No. 9. In fact, the top surface of the (causeway is 12 feet wide and the causeway is broader at the base. It is 20 feet across at one point, according to Petitioners' Exhibit No. 10. From a surveyor's drawing subsequently furnished at DER.'s request, Petitioners' Exhibit No. 10, DER inferred that the road was 80 feet long, even though this drawing was not accompanied by an amendment to the written description of the project. In fact, the causeway is 162 feet long, and not 30 or 80 feet long. The application states that the culvert has a diameter of 19 inches. In fact, the culvert had a diameter of 12 inches, so that the application overstates the area of the cross-section by more than 150 percent. Under the "Remarks" section of Mr. Copelan's application appears the following: Applicant was under the belief that no permit was necessary at the time of commencement and completion of the project. Petitioners' Exhibit No. 9. In fact, Mr. Copelan had been informed twice in writing that he needed a permit to place fill in the lake and had even been furnished an application form, but went ahead anyway, without seeking legal advice, or contacting DER. Lake Tresca is not a man-made lake as stated on the application. Construction of a causeway was completed by mid-August and did not occur on September 1 and 2, 1980, as stated in the application. In what was apparently a typographical error, the township is stated as 35, rather than 3 South, on the application originally filed, Petitioners' Exhibit No. 9, but this error is rectified in a later submission. Petitioners' Exhibit No. 10. PRIVATE PROPERTY RIGHTS Since the fill was originally placed, it has spread out along the bottom or "migrated." Along its southern extent, the causeway now overlaps the Pettengills' property. The road has the effect of blocking access to Lake Tresca for the Pettengills. They have, indeed, sold their boat now that they can no longer make their wonted use of it on the lake. DISSOLVED OXYGEN, TRANSPARENCY, HEAVY METALS The water in Lake Tresca Is very clear, except for an iridescent sheen in the vicinity of the causeway, and an organic scum on the water restricted by the causeway. Analysis of water samples taken at four locations in Lake Tresca by Petitioners' own expert revealed no violations of the dissolved oxygen standards. There was speculation but no hard evidence that lead and other heavy metals associated with automobile pollution may have made their way into Lake Tresca as a result of the causeway. OILS AND GREASES Mr. Madden, the contractor, did not add oil or grease to the fill he used to build a causeway through Lake Tresca. He has used fill from the same borrow pit on other projects and has had no complaints that it was oily or greasy. But there was no oil or grease on the lake before Mr. Copelan had the road put in. When the fill was originally placed, in the fall of 1980, there was a distinct petroleum odor, for the first time, particularly in humid weather. Mr. Ryan detected a strong petroleum odor as recently as February of this year, but the odor has abated over time somewhat. Oils and greases have coated the water's surface with an iridescent film, on either side of the southern stretch of the causeway, since it was built. Nowhere else in the lake can oils and greases be detected visually. Three water samples taken near the causeway on February 6, 1982, were analyzed and found to con-tain 3.2, 4.1, and 5.4 milligrams per liter (or parts per million) of oils and greases. A water sample taken elsewhere in the lake on the same day, although at another well-vegetated location, was found to contain less than one part per 100 million (.01 mg. per liter) oils and greases. Mr. Taylor is one of three DER employees who has seen a sheen on the water near the causeway, even after the sod and oyster shells were added. Another DER employee, Lynn Griffin, testifying as an expert in general biology with a special emphasis on oil pollution, concluded that the oil and grease she saw in Lake Tresca came from the causeway, because she discovered no other possible source. Her uncontroverted testimomy specifically rejected the theory that this greasy film could be traced to septic tanks, because the bacteria in septic tanks produce a milky liquid, not an oil sheen. DER's John B. Outland testified unequivocally that the oil and grease on the surface of Lake Tresca either leached out of the fill or came from equipment operated on the fill road. Petitioners' chemist would have had to use another test in addition to the Soxhlet extraction method he did use, in order to establish to a scientific certainty that the oils and greases he identified in samples taken from Lake Tresca were petroleum hydrocarbons. But with convincing testimony that what looked like petroleum also smelt like petroleum, other evidence did establish that the oils and greases were petroleum derivatives. BIOLOGICAL EFFECTS Placement of fill on the lake bottom eliminated benthic organisms that have not reestablished themselves on the submerged causeway surface, nor on dry land above water, subject to the disturbances of automobile traffic. Habitat, shelter, and forage for fishes and invertebrates have been destroyed; bacterial and algal processes have been eliminated. No animals live on top of the submerged fill even though certain larvae may be found less than a meter away, and several animals thrive in the vegetated areas of Lake Tresca. Although the filled area covers no more than 2,000 square feet, the oils and greases spread out over a larger area, with dimensions not established by the evidence. The iridescent oily film decreases the amount of light penetrating to plants underneath and so reduces photosynthesis in benthic plants. In the short term, oils and greases obstruct gas and nutrient exchanges necessary to plant life and may cause acute toxicity or death. In the long term, oils and greases can cause neoplasia and affect the reproductive capacity and so the growth rate of animals. They can be taken into lipid-rich eggs and other tissues, contaminating the food web. The untoward effects of oils and grease are more critical in the part of the lake cut off and restricted by the causeway, because of the lack of adequate circulation. There is at present plant and animal life in this part of the lake, nevertheless, and similar fauna and flora in the shallow area of the lake stretching 300 to 400 feet toward open water on the other side of the causeway. The causeway has eliminated a narrow strip from this biologically productive area, an area that also serves to filter pollutants from upland runoff. The full extent of the deleterious effects of the oils and greases is not yet known. In preparing the foregoing findings of fact, the hearing officer has had the benefit of petitioners' proposed recommended order and the department's proposed findings of fact, proposed conclusions of law, proposed recommended order, and memorandum, all adopted by the applicant. To the extent proposed findings of fact have not been adopted, they have been rejected as unsupported by the evidence or irrelevant to the issues.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That DER deny the application for an after-the-fact permit to create a fill road across Lake Tresca, and order respondent George Copelan to restore the area to its preproject contours within forty-five (45) days. DONE AND ENTERED this 3rd day of June, 1982, in Tallahassee, Florida. ROBERT T. BENTON II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1982 COPIES FURNISHED: Randall E. Denker, Esquire 103 North Gadsden Street Tallahassee, Florida 32301 Gordon D. Cherr, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 James Webb, Esquire Post Office Box 385 Destin, Florida 32541 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION DWYNAL and IONA PETTENGILL, Petitioners, vs. CASE NO. 82-294 STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, and GEORGE COPLAN, Respondents. /
Findings Of Fact Earthmark operates the Corkscrew Regional Mitigation Bank under contract with the South Florida Water Management District (SFWMD). RCH is a company in the business of sand and limestone mining and was the applicant for Environmental Resource Permit No. 0266397-001. The Department is the state agency with the authority and duty to regulate mining activities in Florida. On August 20, 2008, the Department issued a Notice of Intent to Issue Environmental Resource Permit No. 0266397-001 (“Corkscrew Road Excavation” or “the mining permit”) to RCH to extract sand and limestone from a 1,365.5-acre tract of land owned by RCH in Lee County. On August 22, 2008, the Notice of Intent was published in the Fort Myers News-Press, a daily newspaper of general circulation in Lee County and nearby counties in the region. The newspaper notice included a statement that a person desiring to challenge the proposed action of the Department must file a petition for hearing with the Department within 21 days. No petition to challenge the proposed action was received by the Department within 21 days of publication of the newspaper notice. On November 25, 2008, 43 days after the deadline stated for the filing of a petition for hearing, Earthmark filed its Petition for Formal Administrative Hearing with the Department. On December 8, 2008, the Department referred the petition to DOAH. The Corkscrew Regional Mitigation Bank operated by Earthmark is located on 632.5 acres of land adjacent to the proposed sand and limestone mine. The mitigation bank was established in the 1990s and was originally operated by Mariner Properties Development, Inc. (Mariner). Negotiations began in 2006 between Earthmark Mitigation Services, Inc., of which Petitioner Earthmark was a subsidiary, to purchase from Mariner the contractual rights to operate the mitigation bank. The purchase agreement was executed in April 2007, and closed (all contingencies satisfied) in March 2008. Throughout the time that Mariner operated the mitigation bank, it regularly employed the consulting services of Kevin L. Erwin Consulting Ecologist, Inc. Erwin’s company has its offices in Fort Myers. Erwin has had a long career in environmental consulting and is knowledgeable about the Department’s environmental permitting procedures. In November 2007 and January 2008, Ervin was paid by Earthmark for consulting services. In May 2008, Earthmark and Erwin executed an agreement for consulting services. Erwin is the Qualified Mitigation Supervisor for the Corkscrew Regional Mitigation Bank. On March 28, 2007, Erwin attended a meeting in Fort Myers with SFWMD and Lee County employees, and other interested persons to discuss, among other topics, mining activity in Lee County. Erwin’s interests at the workshop were generalized. He was not attending exclusively because of his association with the Corkscrew Regional Mitigation Bank. He testified that he was representing the interests of “three or four dozen” clients. On the sign-in sheet for the workshop, under the heading “Organization,” Erwin wrote KLECE, the initials of his consulting company. Howard Hayes, Program Administrator in the Department’s Bureau of Mines and Minerals Regulation, was invited to attend the meeting and to make a presentation. Hayes testified that, during his presentation at the meeting, he mentioned that a permit application for the Corkscrew Road Excavation was pending at the Department. It was not made clear in Hayes’ testimony whether he included details sufficient to identify the location of the proposed Corkscrew Road Excavation. It is logical that Hayes would mention the pending permit application because mining activity in Lee County was a prominent subject of the workshop. Attached to Earthmark’s petition for hearing is an affidavit by Erwin that includes the following statement: On March 28, 2007, as a representative of Earthmark, I requested, from the Program Administrator of the FDEP Mines and Mineral Regulation, that I be notified of any actions concerning the proposed mine. Erwin subsequently prepared an amended affidavit that changed this statement to read as follows: On March 28, 2007, I, as a representative of the Mitigation Bank, requested from the Program Administrator of the FDEP Bureau of Mines and Minerals Regulation that I, on behalf of the Mitigation Bank, be notified of any agency action concerning the proposed corkscrew excavation project (application number 0266397-001). The clarity and specificity of Erwin’s request for notice, as described in his affidavit statements, with respect to the permit application of interest to Erwin and the identity of the mitigation bank as the entity for whom Erwin was making the request, was not borne out in Erwin’s testimony at the hearing. Erwin testified at the hearing that he does not recall hearing Hayes mention the proposed Corkscrew Road Excavation. Erwin testified that he asked Hayes to “keep us posted” about meetings, permit applications, and proposed agency actions regarding any mining proposals in Lee County. Erwin did not specifically request to be informed about the Corkscrew Road Excavation. Furthermore, although Erwin said that Hayes knew that Erwin was associated with the Corkscrew Regional Mitigation Bank, Erwin did not refer specifically to the mitigation bank when he asked Hayes to “keep us posted.” Erwin did not describe Hayes’ response to his oral request for notice about mining permits, except that Hayes’ response was understood by Erwin to be in the affirmative. Erwin did not say, for example, that Hayes told him, “Okay, I will notify you when the Department issues its Notice of Intent on the Corkscrew Road Excavation.” Erwin did not say that Hayes made a written note to himself regarding Erwin’s request for notice. Hayes remembers seeing and talking to Erwin at the meeting in Fort Myers. Hayes said that Erwin was one of several people that stood around him after Hayes’ presentation to ask Hayes questions or to discuss mining issues. However, Hayes does not recall being asked by Erwin to give him notice of mining permit applications or proposed Department actions on mining permits, in general, or the Corkscrew Road Excavation, in particular. It is Hayes’ practice to take notes at meetings and workshops and to include in his notes any request that he receives from a person to be notified of proposed agency action. Hayes took notes during the March 28, 2007 meeting, which were admitted into evidence, but Hayes made no note that Erwin (or anyone else) had requested notice of mining permit applications or proposed Department actions on mining permits. In the past, the Department’s Bureau of Mines and Minerals Regulation has accepted both written and oral requests for notification of proposed agency action. When such a request is made, a note is placed in the Department’s permit application file as a reminder to send the person who made the request a copy of the Notice of Intent. No note was placed in the permit application file for the Corkscrew Road Excavation. The preponderance of the evidence, taking into account the credibility of the witnesses, supports a finding that, whatever Erwin said to Hayes on March 28, 2007, his words were not effective to cause Hayes to understand that Erwin was making a formal request for notice of the Corkscrew Road Excavation that required Hayes to place a note in the permit application file and to send Erwin a copy of the Notice of Intent when it was issued. Earthmark claims that it first became aware of the Corkscrew Road Excavation when it was informed by Erwin in October 2008. Erwin testified that he first learned about the mining permit from a SFWMD employee and received a copy of the Notice of Intent on October 7, 2008. By that date, the 21-day deadline for filing a petition had already passed. From the March 2007 workshop in Fort Myers to October 2008, a period of almost 19 months, neither Erwin nor any employee or agent of Earthmark made an inquiry at the Department about proposed mining activity in Lee County. If Erwin knew about the proposed Corkscrew Road Excavation in March 2007, as indicated in his affidavits, the fact that he never inquired about the proposed mine is difficult to understand. Erwin said he made no inquiry because he trusted the Department to inform him. After being informed by Erwin about the Corkscrew Road Excavation on or about October 7, 2008, Earthmark waited 20 days to file with the Department a Request for Extension of Time to File a Petition for Formal Administrative Hearing. Earthmark requested an extension of 21 days, to November 17, 2008, which the Department granted. Earthmark then waited until November 17, 2008, to file a second request for an extension of time to file a petition. The Department denied the second request and ordered Earthmark to file its petition no later than November 25, 2008. Earthmark filed its petition on November 25, 2008, 39 days after it was informed about the mining permit.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is recommended that Earthmark’s Petition for Formal Administrative Hearing be DISMISSED as untimely. DONE AND ENTERED this 29th day of December, 2008, in Tallahassee, Leon County, Florida. 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 29th day of December, 2008. COPIES FURNISHED: Ronald Woodrow Hoenstine, III, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Frank E. Matthews, Esquire Hopping, Green & Sams, P.A. 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314-6526 Anthony J. Cotter, Esquire Gray Robinson, P.A. 301 East Pine Street, Suite 1400 Post Office Box 3068 Orlando, Florida 32802 Lea Crandall, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Michael W. Sole, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000
The Issue Whether the application of Getty Oil Company for a permit to conduct dredge and fill activities by the construction of an oyster shell platform and by dredging (drilling) in East Bay, Santa Rosa County, should be approved, pursuant to Chapters 253 and 403, F.S. Whether the application of Getty Oil Company for a variance from Rule 17-4.28(8)(a), F.A.C., to construct a shell foundation pad and to drill one natural gas exploratory well in East Bay, Santa Rosa County, should be approved, pursuant to Chapter 403, F.S. Whether the application of Getty Oil Company for a permit for natural gas flare construction should be approved, pursuant to Chapter 403, F.S. Whether the application of Getty Oil Company for a drilling permit should be approved, pursuant to Chapter 377, F.S. These proceedings stem from Getty Oil Company's intent to erect a structure and drill a test well in East Bay, Santa Rosa County, for the purpose of natural gas exploration. The waters of East Bay are Class II, approved for shellfish harvesting. Getty holds leasehold rights for drilling at the proposed site under an assignment of a lease granted by the Trustees of the Internal Improvement Trust Fund in 1968. DER issued Notices of Intent to grant Getty's three applications, subject to specific conditions, as follows: Request for Variance By letter of April 3, 1980, the DER Director of Division of Environmental Permitting issued its Notice of Intent to grant a variance from Section 17- 4.28(8)(a), Florida Administrative Code, pursuant to Section 403.201(1)(a)(c) Florida Statutes, to permit the requested dredge and fill activities in an area approved for shellfish harvesting by the Department of Health and Rehabilitative Services. Dredge and Fill permit By letter of April 3, 1980, the DER manager of the Northwest District issued Notice of Intent to issue a dredge and fill permit for the construction of the exploratory gas drilling platform provided that the applicant obtained a variance from the requirements of Sections 17-4.28(8)(a), Florida Administrative Code. Natural Gas Flare Construction Permit By letter of June 16, 1980, the DER manager of the Northwest District issued Notice of Intent to issue a permit for natural gas flare construction at the East Bay test site in Santa Rosa County. DNR issued the following Notices of Intent regarding the Chapter 377 drilling permit: By letter of June 18, 1980, as amended by letter of June 23, 1980, the Executive Director of the Department of Natural Resources issued Notice of Intent to recommend denial of Getty's application for a permit to drill in East Bay for the reason that Section 377.242, Florida Statutes, prohibits the construction of structures for the production of oil, gas and other petroleum products on submerged lands within the lease area. However, by further order of the Executive Director, dated duly 28, 1980, Notice of Intent was issued to recommend approval of the drilling permit application, subject to specified conditions in the event that the legal opinion expressed in his prior letters concerning the prohibition against drilling as set forth in Section 377.242, Florida Statutes, was found to be incorrect. Although the DER cases were originally scheduled for hearing in August, 1980, the consolidation of the DNR cases resulted in the granting of a motion for a continuance of the hearing until November, 1980. At the commencement of the hearing, the parties announced that they had arrived at a stipulated settlement and that all issues raised in the consolidated cases were, with two exceptions, withdrawn by the parties with respect to the three permit applications and the variance application. The two issues reserved by the Stipulation involved the application of Section 377.242(1), Florida Statutes, with respect to the requested drilling permit from the Department of Natural Resources. The Stipulation was accepted by the Hearing Officer as sufficiently comprehensive to meet the requirements of pertinent statutes and regulations with regard to the permits under consideration. Paragraph VI of the Stipulation provides that paragraphs II and IV of the Stipulation shall be specifically incorporated into the agency permits or variance to which those paragraphs refer. In view of the agreed resolution of the two DER permit applications, a hearing on those matters became unnecessary. However, as to the application for variance, subsection 403.201(2), Florida Statutes, mandates that the Department hold a hearing on each application for variance. Inasmuch as the parties to the proceedings had resolved all factual and legal questions in their Stipulation, the only remaining purpose for a hearing was to permit public participation. Accordingly, twelve public witnesses testified at the hearing (Hearing Officer's Exhibit 1), four of whom submitted documentary materials (Exhibits 1-4). These included a petition signed by local area citizens in support of the project, a favorable recommendation by the Pensacola Area Chamber of Commerce, a statement from the League of Women Voters from the Pensacola Bay Area expressing concern for preservation and protection of estuaries and wetlands, and various publications submitted by one witness. After the receipt of public testimony, the hearing was continued until November 24, 1980 for presentation of evidence concerning the two remaining issues reserved by the parties in their Stipulation. Due to the fact that the DER was not a party to the matters remaining for consideration, its representative did not participate in the further proceedings. During the hearing sessions on November 12- 13, 1980, twenty eight exhibits were provisionally received in evidence. (Hearing Officer's Exhibit 2) . Eight additional exhibits were received in evidence during the session on November 24-25, 1980. (Hearing Officer's Exhibit 2) By Recommended Order, dated December 15, 1980, the Hearing Officer recommended to DER that the Stipulation of the parties be accepted, and that the requested DER permits and variance be issued in accordance with the terms thereof. The two issues reserved by the Stipulation involving the application of Section 377.242(1), Florida Statutes, are as follows: Whether Section 377.242(1), Florida Statutes, prohibits the proposed drilling on submerged lands located in East Bay. Whether Section 377.242(1), Florida Statutes, can be constitutionally applied to prohibit Getty from conducting the proposed drilling on submerged lands located in East Bay. Evidence was received at the hearing as to whether Getty Oil Company is authorized by the statutory provision in question to drill at the proposed site. As to the constitutional issue, Getty was permitted to proffer testimony to preserve such issue for any future judicial determination. The following findings of fact are restricted accordingly.
Findings Of Fact Getty Oil Company proposes to drill a hydrocarbon exploration well pursuant to State Drilling Lease No. 2338. The lease was issued by the Trustees of the Internal Improvement Trust Fund of the State of Florida on July 9, 1968, to J. Melvin Young, Arden A. Anderson, and Philip D. Beall. Getty purchased the lease from the original lessees on March 10, 1970. The lease grants the right to explore for and produce oil and gas from the state-owned submerged water bottoms of East Bay, Blackwater Bay, and that portion of Escambia Bay lying in Santa Rosa County, a combined total of 47,932 acres. The proposed well would be drilled from submerged lands located in approximately the center of East Bay to a depth of approximately 17,800 feet. (Testimony of Anderson, Exhibits 6, 27) The well site will be located some 2.7 miles from the nearest shore and about six miles from the Gulf of Mexico. The site is not within one mile from the seaward boundary of the Yellow River Marsh Aquatic Preserve, the Fort Pickens State Park Aquatic Preserve, or the Gulf Islands National Seashore. East Bay is an estuary which is part of an estuarine "system" in the immediately surrounding area of Pensacola. An estuary is an area that is a buffer zone between the open ocean where the salinity is equal to 35 parts per thousand, and the fresh water river areas which drain into the system. The fresh water runoff carries nutrients into the system which in turn result in productivity of plants and organisms, including fish, shrimp, oysters, and other shellfish of various types. Estuarine systems are therefore one of the most productive types of ecosystems. East Bay is one of the best parts of the estuarine system from the standpoint of both water quality and general health of the system. Although during the major periods of river drainage in the winter and spring months, low water salinity exists on the surface of East Bay, the bay is not considered to be a fresh water lake, river or stream from an ecological standpoint. (Testimony of Herbert, Livingston, Exhibits 6, 15, 26, 29-32) The coastline of Florida in the vicinity of East Bay coincides with the seaward boundary of Santa Rosa Island, a barrier island, and extends across the mouth of the entrance to Escambia Bay. East Bay is connected to Escambia Bay, but does not connect directly to the Gulf of Mexico. (Stipulation, Exhibits 29, 31 and 32) Based on seismic data obtained from a 1970 survey of the Getty Oil Company's leased area, including East Bay, the only possible structure where hydrocarbons could be located beneath submerged lands is one covering 2,860 acres or approximately 4 1/2 square miles. The proposed well site is at the top center of the structure, which extends some 17,800 feet below the surface of the submerged land. There is no evidence that there are commercially recoverable deposits of salt, brines, or sulphur under the lands of the leasehold area. Hydrocarbon accumulations tend to occur along the crest of regional arches. The crest of the Santa Rosa Arch has been projected to be underneath the East Bay area. (Testimony of McCarthy, Greenwell, Exhibits 34-35) Studies conducted by Getty Oil Company to determine the advisability of drilling at the proposed site led it to the conclusion that there is one chance in twelve that hydrocarbons would be present in the target structure in commercially productive amounts. These studies also produced an estimate that Getty would accrue about $537,000,000 before state and federal income taxes if it vertically drilled four producing and one non-producing wells in the area. (Testimony of Greenwell) Directional well drilling is performed by the oil industry to maximum lateral deviations of 10,000 to 12,000 feet, depending upon varying conditions at the site. In such instances, an angle is formed at periodic intervals which eventually deviates sufficiently to reach the target structure. Straight-line slant drilling is only feasible in cases of shallow wells. Directional drilling creates varying problems based on the depth and lateral deviation required in a particular place. The "doglegs" required in creating the necessary angles pose extreme difficulties in removing cuttings from the drill hole. The angles created in the process produce tremendous torque and cause pipe "fatigue." Drill collars are subject to sticking and, at extreme depths, it is doubtful if turning of the pipe can be achieved. Such a method of drilling makes it difficult to control direction, particularly at great depths. Additionally, at extreme depths where the temperature is some 325 degrees, the rubber material of "down-hole" motors is melted. (Testimony of Porterfield, Moore) In order for Getty Oil Company to directionally drill from land to the target structure under East Bay, it would be necessary to commence drilling on land approximately 3.3 miles from the bay site at a point about 1 1/4 miles due north of White Point. Drilling at that location would require a 50 percent lateral deviation of some 17,500 feet and a total drilling distance of some 25,000 feet. Such a distance has never been attempted in the history of directional drilling and is considered by experts in the field to be virtually impossible from a technological standpoint. Such a well would require that 2 1/2 degree angles be formed every 100 feet. These bends in the well hole through which the pipe must be extended and bent would create extremely severe pipe failure problems and exacerbate the other traditional difficulties encountered in directional drilling. Further, the cost of directional drilling at the Getty site would make such an undertaking economically undesirable even if it were technically possible. In view of all the considerations, Getty Oil Company does not consider directional drilling a viable alternative to vertical drilling, and therefore would not undertake drilling by such a method. Getty does not own or hold property interests in any dry-land areas near the shore of East Bay. (Porterfield, Moore, Englert) Prior to 1972, the Department of Natural Resources issued permits to drill in submerged lands of the state. Subsequent to the 1972 enactment of Section 377.242(1), Florida Statutes, no such permits have been issued and the pending application of Getty Oil Company is the only one which has been received by the Department since that time. Based on prior policy, the Chief of the Department's Bureau of Geology recommended to the Executive Director that Getty's application be approved. His reason for such recommendation was that he had not been aware that there was a variation in the 1972 statute and the Department's prior policy. Dr. Elton J. Gissendanner, Executive Director, however, determined that the statutory provision prohibited the placement of structures for the purpose of producing oil or gas anywhere in submerged lands in the state within a mile seaward from the coastline, which he considered to be located at the seaward border of Santa Rosa Island. He interpreted additional language in the statutory provision (which prohibited the issuance of a drilling permit within one mile inland from the coastline unless estuaries, beaches and shore area were adequately protected in the event of accident) to refer to uplands, and that therefore unrestricted drilling on land could only occur more than a mile from the coastline. In this manner, he concluded that the legislature intended to protect all estuaries of the state. He views his decision to constitute a proposed departmental policy which would require ratification by the Governor and Cabinet as head of the Department. However, no rules have been issued in implementation of the statutory provision. Based on his interpretation of the statute, the initial letter of intent to deny the requested permit was issued on June 18, 1980, as amended by his letter of June 23, 1980. By his further letter of July 28, 1980, the Executive Director informed Getty Oil Company that he had been directed by the Governor and Cabinet to issue a Notice of Intent to recommend final agency action concerning the merits of the application in the event that his legal position was overruled. The letter stated that pursuant to that mandate, and after review of the application, he intended to recommend approval of a permit to drill the requested test well in East Bay for the reason that the application complied with all criteria set forth in Chapter 16C-2, Florida Administrative Code. Certain conditions were stated in the letter to which any permit would be subject. These conditions were the subject of tide later stipulation between the parties at the commencement of the final hearing in these proceedings. The statutory interpretation of the Executive Director was confirmed in a later departmental legal opinion. (Testimony of Henry, Gissendanner, Exhibits 15, 20, 36) Various legislative materials, including bills, committee reports, and transcripts of committee meetings which primarily were preliminary to or contemporaneous with the passage of the legislation that became Section 377.242(1), F.S., were admitted in evidence (Exhibit 33a-p). A post-hearing Motion of Getty Oil Company to supplement the record with additional legislative materials was granted in part by the official recognition of a Report of the House Committee on Environmental pollution Control (Exhibit 33q). A further post-hearing Motion of United Citizens Against pollution, Inc. to supplement the record with further pertinent legislative materials was similarly granted (Exhibit 33r, s).
