Findings Of Fact Petitioner filed Application No. 13-31-0286 on or about December 4, 1972, with the Florida Board of Trustees of the Internal Improvement Trust Fund, for a dredge and fill permit. This application was amended by the Petitioner on August 19, 1975, and again on October 8, 1975. The application as amended was admitted into evidence as Exhibit No. 14. The Mean High Water Line as depicted by the Petitioner on the application, Exhibit No. 14, is acceptable and correct and was stipulated and agreed to by the parties as being a correct depiction of the Mean High Water Line. Petitioner is the owner of approximately 350 acres of land adjacent to and in the Biscayne Bay Aquatic Preserve, located in Sections 21 and 22, Township 52 South, Range 42 East, Dade County, Florida. Approximately 192.8 acres of this land is below the Mean High Water Line and is part of the Biscayne Bay Aquatic Preserve. Petitioner, in the application, seeks to fill approximately 63.2 acres of submerged land below the Mean High Water Line for the purpose of constructing part of a planned 36-hole public golf facility. Less than 18 holes of the proposed golf facility are located on the filled area. The historical background detailing the acquisition by the Petitioner of the above 350 acres is set forth accurately in paragraphs 4, 5, 6; 7, 9, 10, 11, 13, 14 and 15 of Exhibit No. 2, admitted herein, entitled Petitioner's Statement. Therefore, those matters of a factual nature set forth in the aforementioned paragraphs are adopted as though set forth in full herein. Those matters of a conclusive nature, legal or factual, set forth in the aforementioned paragraphs are neither accepted nor rejected except as may be specifically provided herein. The Petitioner is obligated to pay off its General Obligation Bond Issue by which it acquired the 350 acres from Interama. This debt service will cost the Petitioner approximately $950,000 annually through the year 2001, and is paid out of ad valorem tax revenue. This debt constitutes a serious burden upon the taxpayers and citizens of the City of North Miami. There is a need in the North Miami area for the type of recreational facility proposed. At present, the only public golf course in the area is a 9- hole facility which is one of the busiest in the country. The lands owned by Petitioner in the Biscayne Bay Aquatic Preserve and subject of this hearing support a mangrove forest system, composed predominantly of red (Rhizophora mangle) and white (Languncularia racemosa) mangroves, with occasional black mangroves (Avicennia germinans). Prior to mosquito ditch excavation, which occurred approximately 35 years ago, the mangrove forest occupied only the southeastern portion of the acreage, while the remaining area probably supported sawgrass and marshgrass communities. The increase in salinity caused by mosquito ditches promoted the expansion of the mangrove community. Presently, the historical mangrove forest is the best developed portion of the system. The red mangrove trees reach heights in excess of 40 feet and the soil is composed of a deep layer of mangrove mulch. In contrast, the soil beneath the mangroves that invaded the marsh land after mosquito ditching, is primarily marl with a relatively thin organic layer of recent origin. Tidal waters flow onto the site through two 60-inch culverts under NE 135th Street, located on the southeastern perimeter of the property. Water flows north through three mosquito control ditches. The ditch along the eastern boundary terminates a short distance north of the historical forest. The north- south ditches are relatively deep and open, whereas the east-west ditches are filled with silt. Many of the latter are 1 foot to 1.5 feet deep at high tide. While tidal waters flow onto the site, these internal restrictions to flow limit circulation over much of the site. The historical mangrove forest on the subject property is well developed and highly productive. That part of the mangrove forest induced by the mosquito ditches is less well developed and not as productive. However, it is not unproductive. The mangrove forest area proposed for filling by the Petitioner, in terms of forest productivity, produces approximately 2 tons of material per acre annually. This compares to approximately 4 tons per acre annually by the well developed historical forest. The growth and development of both the historical and induced mangrove forests is inhibited somewhat by the restricted flow of tidal water into the forests, which, in turn, is caused by the NE 135th Street Causeway and the silting referred to in paragraph 7. Mangroves thrive on good flow and circulation. Therefore, if the flow and circulation of tidal waters is improved, the mangrove forest will improve. The filling of part of the mangrove forest, together with the dredging of the canals sought to be dug by the Petitioner, and the proposed additional opening in NE 135th Street, would enhance the flow and circulation in the historical forest and probably aid its further development. That same dredging and filling would completely destroy 63.2 acres of the existing, healthy, induced mangrove forest. There is no evidence that the induced mangrove forest proposed for filling is in a fatal state of deterioration. Rather, the question is one of how rapidly or slowly that mangrove forest will develop. Without improved flushing, its development will be slow. Apparently, if the flushing of the induced mangrove forest proposed for filling is improved, its development will be much more rapid. In either case, it apparently will eventually attain, given existing conditions, that stage of development presently enjoyed by the historical forest. The construction of one additional culvert in the NE 135th Street causeway will cost approximately $20,000. The Petitioner does not own the right-of-way to NE 135th Street which would be used in constructing an additional culvert. The owner of that right-of-way appears to be Dade County, which entity is not a party to this proceeding. The Petitioner has an agreement with a private entity known as Munisport, whereby Munisport is to develop and operate the proposed recreational complex, including the golf courses, with the attendant dredging and filling. According to the agreement, at the end of 30 years, the City would own the complex free of any other interest. With regard to the golf courses, the City, throughout their operation, would receive a guaranteed minimum of $86,000 annually, plus a percentage of the fees received by Munisport. As testified to by the City Manager, once the recreational complex is in full operation, the City hopes to receive from it $100,000 to $200,000 annually. The City Manager characterized this as having a small effect upon the financial burden borne by the taxpayers and citizens of the City of North Miami with regard to the bond debt. There was not sufficient evidence presented to establish that, for engineering, environmental, or economic reasons, the golf courses could not be reduced in size or redesigned to eliminate that part to be placed in the Biscayne Bay Aquatic Preserve. Witnesses for the City stated that the City had gone as far as it could in redesigning the project, but no evidence, other than that pertaining to the bond debt, was presented to show why the City took that position. The impact of altering the water storage capacity and volumetric tidal prism within the wetland area, as proposed, can only be adequately assessed by conducting a hydrographic survey. (See Composite Exhibit No. 25.) Such a survey has not been conducted. The Petitioner's application does not involve a public navigation project. The evidence presented does not establish that it is a public necessity that 63.2 acres of mangrove forest in the Biscayne Bay Aquatic Preserve be destroyed by dredging and filling so that part of a public golf course might be constructed. The evidence presented fails to show that the proposed dredging and filling is necessary for the preservation of the Biscayne Bay Aquatic Preserve. The proposed dredging and filling may enhance the quality of approximately 130 acres of mangrove forest in the Preserve, but it will do so by the destruction of 63.2 acres of mangrove forest, also in the Preserve. Viewing the total impact of the proposed dredging and filling on the Preserve, there is no showing that such dredging and filling is necessary to enhance the quality or utility of the Preserve. There was no showing that the 63.2 acres of mangrove forest to be dredged and filled is hazardous to the public health or lacking in aesthetic quality or utility.
The Issue Issues presented here concerned the entitlement of Respondent, Russell D. Horn, Sr., to be granted an environmental permit by Respondent, Department of Environmental Regulation, to build a boat stall on an existing dock in Putnam County, Florida. The boat stall's dimensions are ten feet wide by twenty feet deep and the construction would be on the St. Johns River.
Findings Of Fact On July 13, 1981, Russell D. Horn, Sr., who has a residence in Putnam County, Florida, bade application to the State of Florida, Department of Environmental Regulation, for the necessary permits to construct a boat stall ten feet wide by twenty feet deep at the site of an existing dock. A copy of the application may be found as Respondent Horn's Exhibit No. 2 admitted into evidence. The dock where Horn applied to build the boat slip is found in the St. Johns River, a navigable water body and waters of the State of Florida in Putnam County, Florida. The application form which was executed by Horn required him to indicate the name of adjacent property owners to the property at which the dock site was located, both upland and adjacent to the uplands. See Rule 17- 4.28(11)(c), Florida Administrative Code. To accomplish this task, the applicant utilized a sketch which he had been provided when he purchased his homesite in the area and indicated to the Department that the adjoining landowners were Milton Kilis and Robert Michal. In fact, Robert Michal was not an adjacent landowner. The adjacent landowner, Milton G. Kilis, wrote to advise the Department that he had no objection to the construction of the boat slip. This correspondence was dated September 11, 1981. A copy of that correspondence may be found as Respondent Department's Exhibit No. 3 admitted into evidence. After reviewing the initial application, additional information was requested by a document entitled "Completeness Summary" which was addressed from the Department to the Applicant Horn. A copy of this "Completeness Summary" requesting additional information may be found as Department's Exhibit No. 1 admitted into evidence. Through this summary, Horn was requested to provide written authorization from the dock owners. It was also requested that Respondent provide an affidavit of ownership of the upland property adjacent to the dock site. Horn received permission to construct from Frank Scussell and William A. Reaves, persons he understood to be the dock owners. See Respondent Horn's Exhibit No. 3 admitted into evidence. Horn misunderstood the question related to ownership of upland property and provided a mortgage deed with its attendant description of his home site property in Putnam County, which is at a different location from that of the upland property adjacent to the dock. A copy of that deed and other matters may be found as Respondent Horn's Exhibit No. 4 admitted into evidence. Department of Environmental Regulation reviewing authorities wrote on the "Completeness Summary" form, Respondent Department's Exhibit No. 1, indicating that the task of seeking written authorization from the dock owners had been achieved and that the affidavit of ownership of upland property owners was satisfactory. In fact, all adjacent property owners had not been notified of the pendency of the application request through the process of Horn's advising the Respondent agency of the names of all adjacent property owners to the uplands and the affidavit of ownership of the upland property owner at the dock site was not filed. During the review process, permission was given by the Department of the Army, Corps of Engineers, for the construction of the boat slip. A copy of this permission, by letter dated August 31, 1981, is Respondent Department's Exhibit No. 2, admitted into evidence. The Department of Environmental Regulation reviewed the permit application and prepared an application appraisal, which may be found as Respondent Department's Exhibit No. 5 admitted into evidence. The findings made by that application appraisal related to application review are found to be accurate. In particular the permit application appraisal indicated that the boat slip would be located at the waterward end of the existing dock structure, which existing dock structure accommodated four boats. The appraisal found that the project was located in South Putnam County in the town of Georgetown on the St. Johns River. The permit appraisal found that the project site would be located in the littoral zone of the river about one hundred feet waterward of the mean high water line. No littoral growth was seen at the depth of the proposed construction. Tapegrass, Mexican waterlily and cattail were present near the shore. Several large hardwood swamp trees were present at the shoreline. The project was found to be located in a Water Class III and adjacent waters were Class III according to the appraisal, no significant immediate or long-term adverse environmental impacts were to be expected to occur due to the completion of the boat slip. Horn was subsequently given a construction permit to add the boat stall to the existing dock. A copy of that permit may be found as Respondent Department's Exhibit No. 6 admitted into evidence. The only specific conditions related to that matter pertain to the necessity for the utilization of turbidity curtains throughout the project for purposes of containing the turbidity that might exceed State water quality standards, The permit was issued on September 22, 1981. After receiving the permit, sometime around October 20, 1981, Horn purchased the necessary lumber to construct the stall and on October 24, 1981, went to the dock site to begin the installation of pilings related to the construction of the boat stall. While placing the pilings on October 24, 1981, an adjoining property owner and Petitioner in this cause, Marshall Wolfe, stood on his dock, that is, Wolfe's dock, and hailed to Horn to stop building. Horn did not know Wolfe before that time and did not know that Wolfe, not Michal, was the adjacent property owner on that side of the dock. On October 28, 1981, Marshall Wolfe and his wife, Ann Wolfe, wrote to the Department in the person of G. Doug Dutton, Subdistrict Manager, and indicated that they were opposed to the issuance of the permit, which is under the number of the permit issued to Respondent, and requested a hearing on the question of the issuance. A copy of that correspondence may be found as Department's Exhibit No. 7 admitted into evidence. On the same date, October 28, 1981, Horn was contacted by the Department of Environmental Regulation and advised of the Wolfe complaint and Horn was told that he would receive a cease and desist order from the Department of Environmental Regulation. On October 30, 1981, Horn returned to the construction site and found four of his neighbors finishing the construction of the stall. In fact, the neighbors did conclude the construction and the boat slip remains in place. A cease and desist letter was mailed on November 2, 1981; however, this letter was not received by Horn immediately. Horn did subsequently learn of the contents of the letter some time in November or December, 1981. A copy of the cease and desist letter may be found as Respondent Department's Exhibit No. 8 admitted into evidence. On December 13, 1981, an attempt was made at the instigation of Department officials for the Petitioners and Respondent Horn to resolve the controversy. This effort was unsuccessful. As a consequence, a formal hearing was necessary in keeping with the request of the Department that the Division of Administrative Hearings conduct a Subsection 120.57(1), Florida Statutes, formal hearing. This request had been made on November 12, 1981, and an initial hearings had been scheduled for February 11, 1982, following consultation between the various parties and the Hearing Officer. At the initial hearing session on February 11, 1982, which was to be held in Palatka, Florida, counsel for Department indicated that the upland property was not owned by Horn and that easement rights to that property were unclear. In view of this fact the hearing was continued until the ostensible upland property owner could be notified of the pendency of the issuance of an environmental permit and be allowed to participate. Notification was subsequently provided by an Intent to Issue Statement, a copy of which may be found as Respondent Department's Exhibit No. 9 admitted into evidence. This notification was through the Department at the instigation of the Hearing Officer. The date of notification was February 12, 1982. An order was entered on March 17, 1982, which allowed the intervention of St. Johns Crescent Lakesites, Inc. into the proceedings and that party, in the person of its counsel, Lauren E. Merriam, III, Esquire, participated in the April 15, 1982 hearing. St. Johns Crescent Lakesites, Inc. is the owner of the upland property adjacent to the dock in which Horn had constructed the boat slip. No indication was given that any easement rights were ever granted by that corporation to grant access to the boat slip from the adjacent property. The overall dock area, in terms of square feet, is between 500 and 1000 square feet. Other than the permit application made by Horn, no other permission has been received by the Department to construct the other features of the dock. A further appraisal of the project site subsequent to the September 18, 1981, appraisal has been made. That appraisal was made by the field inspector for the Department. This appraisal by Melvin Rechtor agrees with the project appraisal made by the first field inspector, John Hendricks. The testimony of Melvin Rechtor on environmental impacts of the project are accepted as accurate. Rechtor's testimony established that the project would have an insignificant impact on water quality considerations and would not adversely affect the species or the conservation of fish, marine and wildlife or other natural resources. Rechtor's testimony established that there would be no unreasonable interference with waterward access of adjacent property owners. Rechtor's testimony also established that there would be no navigational hazard nor interference with fishing and swimming by persons using the river.
The Issue The issues in these cases are whether the Respondent, Roy Palmer, is entitled to a Noticed General Environmental Resource Permit, under Florida Administrative Code Chapter 62-341, and a Consent of Use under Florida Administrative Code Chapter 18-21.
Findings Of Fact Procedural History On or about February 13, 1995, the Respondent, Roy Palmer (Palmer), applied for a wetland resource permit to construct a 395-foot boat dock for use at his single-family residence at property he owned on Sarasota Bay, an Outstanding Florida Water. As proposed, this dock was to originate from the northern part of Palmer's property and have a terminal platform with two boat moorings and two boat lifts. On September 1, 1995, the Department of Environmental Protection (the Department or DEP) gave notice of intent to issue a permit for a shorter (370-foot) dock originating from the southern part of the Palmer property. The Petitioners filed a petition for administrative hearing challenging the intended action. DEP referred the petition to the Division of Administrative Hearings (DOAH), where it was assigned DOAH Case No. 95-5311. On or about December 11, 1995, Palmer applied for a noticed general environmental resource permit (ERP) permit for his dock under new DEP rules went into effect on October 3, 1995. This proposal was for the 370-foot dock originating from the southern part of the Palmer property. On or about January 10, 1996, DEP acknowledged receipt of the noticed general ERP (No. 582819483) and informed Palmer that it appeared to meet the requirements of the new rule. DEP also gave notice of intent to grant Palmer's application for consent of use of sovereign submerged lands necessary to construct the dock. (The record is not clear when the application for consent of use was filed.) The Petitioners filed a petition for administrative hearing challenging agency action regarding both the noticed general ERP and the consent of use. DEP also referred this petition to DOAH, where it was assigned DOAH Case No. 96-0736. Palmer withdrew the original permit application and moved to dismiss DOAH Case No. 95-5311. In July, 1996, Palmer applied for a noticed general ERP to build a still shorter (232-foot) dock originating from the southern part of the Palmer property (Permit No. 292583). Apparently, no notice of the application was published or required to be published. It is not clear whether the Petitioners "filed a written request for notification of any pending applications affecting the particular area in which the proposed activity is to occur." Palmer's second noticed general ERP (No. 292583) was amended on or about August 19, 1996, to eliminate one boat mooring and one boat lift. DEP took no action on Palmer's second application for a noticed general ERP No. 292583. On September 23, 1996, Palmer filed a Motion to Dismiss the Petition for Administrative Proceeding in DOAH Case No. 96-0736 because he had withdrawn the previous application for a noticed general ERP for a 370-foot dock (No. 582819483) and was proceeding only on the second noticed general ERP (No. 292583) for the 232foot dock. Palmer's intent was to dismiss only the portion of his prior application regarding the noticed general permit, but not the consent of use. On October 28, 1996, the Petitioners filed a petition for administrative hearing challenging noticed general ERP No. 292583 for the 232-foot dock. This petition alleged that the Petitioners filed a written objection to noticed general ERP No. on September 16, 1996, which requested a written response, and that no response of any kind was received until the Petitioners inquired and were told that DEP did not intend to respond to either the noticed general ERP (No. 292583) or the Petitioners' objection. Proposed Dock at Issue The proposal at issue is for a 227-foot access pier and 20 foot by 5 foot terminal platform with only one boat mooring and one boat lift. The length, location, and design of Palmer's proposed dock was changed in an attempt to satisfy the Department of Environmental Protection (DEP or the Department) and Palmer's neighbors. Palmer's task in this regard was difficult in part because a longer dock with a terminus in deeper water could have less impact on seagrasses (the major environmental concern) but would have a greater impact on the neighbors' views of Sarasota Bay (the major infringement of riparian rights concern.) In the final version, Palmer tried to balance these conflicting concerns. As proposed, neither the terminal platform, boat lift, nor mooring location occurs over submerged grassbeds, coral communities or wetlands. Starting at the mean high water line, the first 75 feet of the access pier for the proposed dock will traverse essentially no sea grasses. In the next 75 feet to 150 feet of the access pier, there will be approximately 80% vegetative cover consisting primarily of the seagrass halodule wrightii. Between 150 feet and 200 feet, there will be approximately 20% vegetative cover consisting of the seagrasses halodule wrightii and thalassia testudinum. Between 200 feet and 232 feet, seagrasses consisted primarily of thalassia testudinum, except that the terminal platform is located in an area of essentially bare sand. Starting at 80 feet from the mean high water line, the access pier for the proposed dock will ramp up to 5 feet above mean high water for the next 20 linear feet and continue at that elevation for the next 112 feet to reduce shading of the seagrasses. Then it will descend stairs for the next 5 linear feet, until it is 3.5 feet above mean high water, and will continue at that elevation for 10 more feet to where it joins the 20 foot by 5 foot terminal platform. In this way, wherever it traverses seagrasses, the access walkway portion of the pier will be elevated 5 feet above mean high water. The access walkway will be only 4 feet wide and will have half-inch wide gaps between its deck boards to allow sunlight through and further reduce shading of the seagrasses. The access walkway also will have handrails that are maintained in such a manner as to prevent use of the access walkways for boat mooring or access. As proposed, the terminal platform and boat lift occurs in a location with minimum depth of 2.2 feet below the mean low water level. There is some water 1.7 feet deep in the vicinity of the terminal platform, but the structure can be used without traversing the shallow water. The structure is designed so that boat mooring and navigational access will be in water at least 2 feet deep. Including access pier and terminal platform, the total area of Palmer's proposed dock over sovereign, submerged land would be 1,008 square feet. There will be no wet bars or living quarters over wetlands or surface waters or on the pier, and there will be no structures enclosed by walls or doors. There will be no fish cleaning facilities, boat repair facilities or equipment, or fueling facilities on the proposed dock. No overboard discharges of trash, human, or animal waste, or fuel will occur from the dock. The only dredging or filling associated with construction of Palmer's proposed dock will be the minimum dredge and fill required for installation of the actual pilings for the pier, terminal platform, and boat lift. Altogether, less than 30 square feet of bay bottom will be disturbed during construction and displaced to accommodate the pilings. Palmer's noticed general ERP is subject to the general conditions set out in Florida Administrative Code Rule 62- 341.427. Among those conditions is the requirement that Palmer implement best management practices for erosion, turbidity, and other pollution control to prevent violation of state water quality standards. The pilings will be jetted, not driven, into place to minimize disturbance of the bay bottom and temporary increases in turbidity. Turbidity barriers will be installed and maintained in a functional condition at each piling until construction is completed and soils are stabilized and vegetation has been established. Used properly, turbidity barriers have proved effective in containing temporary turbidity from dock construction. Based on the expert testimony, it is found that the construction of Palmer's proposed dock will not significantly impact seagrasses. The Petitioners presented expert testimony on seagrasses, but their expert testified only generally based on studies showing that shading negatively impacts seagrasses. He had no prior knowledge of the Palmer dock design, seagrass coverage, or the depth of the water. When apprised of some information concerning Palmer's proposed dock, he admitted that the studies involved far more severe shading conditions than would be caused by the proposed dock. He could not testify that the Palmer dock design would harm seagrasses, with the exception of those actually removed by the installation of the pilings. Accidental boat propeller dredging in using a dock can be a secondary impact on seagrasses from dock construction. But while a dock could perhaps attract a few boats, the dock's presence also might cause boaters to steer clear of the dock or reduce speed in the vicinity of the dock, which could result in a net reduction in the risk of damage to seagrasses from accidental prop dredging. Petitioners Dr. Franklin Pfeiffenberger, James Castoro, and Winifred Castoro jointly own a dock to the south of the Palmer property. This dock, which was built in the 1930's, projects 190 feet into Sarasota Bay and traverses seagrasses. Unlike the proposed Palmer dock, the Pfeiffenberger dock is not elevated, and it terminates in seagrasses. The seagrasses under the Pfeiffenberger dock are the same types as those located in the Palmer dock alignment--a combination of halodule wrightii and thalassia testudinum. The dock has been rebuilt a number of times over the years. Upon physical inspection, apparently healthy and growing seagrasses were found underneath the Pfeiffenberger dock. The proposed dock will not harm wildlife, including manatees (the only endangered species in the area, animal or plant). Manatees use Sarasota Bay in general, but the east side of the bay, where the Palmer property is located, is not a high use area. It is shallow and would not be considered "select" habitat for manatees. The proposed dock would not have any detrimental effect on manatee travel patterns; they could easily swim around the dock. Manatees eat seagrasses and other aquatic vegetation, but the proposed dock will not have significant adverse impact on those resources. Finally, while a dock could perhaps attract a few boats, the dock's presence also might cause boaters to steer clear of the dock or reduce speed in the vicinity of the dock, which could result in a net reduction in the risk of injury to manatees in the area from boat collisions and prop scarring. Except for temporary turbidity during construction, no other water quality parameters will be violated as a result of the construction of Palmer's proposed dock. Palmer's proposed dock and its use will not significantly impede navigability in Sarasota Bay. The bay is approximately 18,000 feet wide at that point, and it is approximately 4,800 feet from Palmer's property to the Intracoastal Waterway. Since the water is shallow near shore in the vicinity of the Palmer property, relatively few boats frequent the area. Those that do are generally smaller boats. These boats easily could navigate so as to avoid the dock; very small boats, such as canoes and kayaks, might even be able to carefully pass under the elevated portion of the dock. Palmer's proposed dock also would not be a serious impediment to other recreational uses of Sarasota Bay in the area. The water is too shallow for swimming. Fishing could improve because the dock could attract baitfish. People could continue to wade-fish by walking around or even under the proposed dock. Palmer's proposed dock is aesthetically consistent with the area in which it is located. All the Petitioners have some sort of man-made structure projecting out into Sarasota Bay from their property. As already mentioned, Dr. Pfeiffenberger and the Castoros have a 190-foot dock projecting straight out into Sarasota Bay. Within the past five years, Dr. Pfeiffenberger has installed a bench to sit on at the end of the dock. To the north of the Palmer property, property owned by Mr. and Mrs. Cabaniss has a yacht basin formed by a sea wall that projects roughly perpendicular to the shoreline out into the bay. Immediately north of the Cabaniss property, there is a boat house on the Goldman property where it abuts the yacht basin. The Goldmans' boat house is approximately 20 feet in length and 10 feet in height from ground level. Immediately south of the Palmer property, Ms. Stenhouse has a small dock (which appears to be located over seagrasses.) As a result, the viewsheds of Palmer and the Petitioners already contain many docks and man- made structures. In addition, the Ringling Causeway and bridge can be seen from all of these properties. Palmer's proposed dock will appear in some views from the Petitioners' properties. Generally, the closer the neighbor, the more will be seen of Palmer's proposed dock. Some of the Petitioners will only be able to see the proposed dock if they go out to the westerly edge of their properties on the bay. While the proposed dock will appear in and alter these views, it will not eliminate any Petitioner's view of Sarasota Bay. Even the closest neighbors will have some unobstructed views around the proposed dock. It also will be possible to see over and under the proposed dock, similar to the way in which many of the Petitioners now enjoy their views. There are tall pine and palm trees on the Cabaniss property between their house and their view of the bay. Most of the other properties in the vicinity appear to have similar viewsheds. Ms. Stenhouse has a large stand of mangroves of the western edge of her property; they cover approximately 60 percent of the panorama from her house, but they are trimmed up so she can see through them. While some people would prefer not to have the Palmer dock there, other people might view the availability of single- family residential docks to be an asset to the properties in the neighborhood. Based on expert testimony, it cannot be found that property values in the area would go down as a result of Palmer's proposed dock. Palmer's proposed dock does little if anything to further the idealistic goals and objectives of the City of Sarasota Comprehensive Plan and the Sarasota Bay Management Plan to restore and expand seagrasses in Sarasota Bay in that the proposed dock will eliminate some seagrasses. However, only approximately 30 square feet of seagrasses will be lost. Otherwise, the proposed dock is consistent with other goals and objectives of the City of Sarasota Comprehensive Plan and the Sarasota Bay Management Plan in that the dock has been aligned and planned so as to minimize impacts on seagrasses while balancing the neighbors' desire to minimize the impact on their views of Sarasota Bay. Palmer's Riparian Rights Palmer and his wife received a Warranty Deed, dated August 27, 1993, from James Kirk, II, individually and as personal representative of the Estate of Marie Ferguson. The deed describes Lots 27 and 28 of the Indian Beach subdivision in Sarasota, Florida, with a western boundary "along the shores of Sarasota Bay." Palmer attached this deed to his applications. Since at least November 1992, the mean high water line of Sarasota Bay has been west of a seawall on the Palmer property. The evidence was clear that the seawall has been there since at least 1944 and that Palmer has not filled the area to the west of the seawall or built any structure that influences its existence. The evidence was not clear as to the creation and history of upland to the west of the seawall. From aerial photographs, it appears that at least some upland has existed to the west of the seawall at least from time to time for at least the last 30 years. For reasons no witness could explain, the Palmers also received a Warranty Deed from Kirk, dated September 3, 1993, purporting to convey title only up to the seawall on the Palmer property. Likewise for reasons no witness could explain, a land surveyor named Lawrence R. Weber prepared a boundary survey based on the description in the September 3, 1993, Warranty Deed. Also for reasons no witness could explain, the Palmers received a Quit Claim Deed from Kirk, dated October 20, 1993. This instrument quitclaimed to the Palmers "all of the Grantor's property to the mean high water line of Sarasota Bay, including riparian rights." Except for the mysterious September 3, 1993, Warranty Deed from Kirk, all deeds in the chain of title back to at least 1944 reflect an intention to convey riparian rights. A deed given by Helen and Frederick Delaute to Cecilia and Harold Wilkins, dated April 19, 1944, described the westerly boundary of the property as running northerly along the shores of Sarasota Bay and specifically referenced riparian rights. (This deed attached a survey showing the still-existing seawall.) The next deed in the chain of title was from the widowed Cecilia S. Wilkins to Edward and Laura Williams dated December 27, 1954. The metes and bounds description again referenced the westerly boundary as running along the shores of Sarasota Bay and specifically referenced foreshore accretions and riparian rights. The next deed in the chain of title was from Edward and Laura Williams to Aidan and Wilma E. Dewey dated June 30, 1958. This deed again defined the westerly boundaries of the property as the shores of Sarasota Bay and specifically referenced foreshore accretions and riparian rights. The next deed in the chain of title was from Aidan and Wilma Dewey to Edward and Marie Ferguson dated August 23, 1967. This deed again defined the westerly boundary of the property as the shores of Sarasota Bay and specifically referenced foreshore accretions and riparian rights.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order issuing Noticed General Environmental Resource Permit (No. 292583) and Consent of Use (No. 582819483) to Roy Palmer. DONE AND ENTERED this 1st day of September, 1998, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1998. COPIES FURNISHED: Richard Filson, Esquire Filson and Penge, P.A. 2727 South Tamiami Trail, Suite 2 Sarasota, Florida 34239 Thomas I. Mayton, Esquire T. Andrew Zodrow, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 David M. Levin, Esquire Icard, Merrill, Cullis, Timm, Furen & Ginsburg Post Office Box 4195 Sarasota, Florida 34237 Alexandra St. Paul, Esquire The Riverview Center 1111 3rd Avenue, West Suite 350 Bradenton, Florida 34205 Kathy Carter, Agency Clerk Department of Environmental Protection Office of General Counsel 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection Office of General Counsel 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue Whether the finger pier portion of Respondent Raab's dock creates a navigational hazard. The resolution of that issue will determine whether the dock qualifies for an exemption from an environmental resource permit under Rule 40E-4.051(3)(b), Florida Administrative Code, and Section 403.813, Florida Statutes.
Findings Of Fact DEP has the authority to regulate the construction of docks in jurisdictional wetlands and other waters of the State of Florida and on state submerged lands under Chapters 253, 373, and 403, Florida Statutes, and Chapters 62-330 (which adopts Chapter 40E-4) and 18-21, Florida Administrative Code. The Association is a residential community located in Sewall's Point, Martin County, Florida. All lots within the community abut navigable channels which provide ingress and egress to the ICW. These channels converge so that there is only one channel that connects to the ICW. Most of the residents of the community have large vessels that routinely navigate the channels within the community. At the time of the formal hearing, many of the vessels owned by residents of the community had drafts of four feet and at least two had drafts of five feet. In 1997, Mr. Raab purchased a residence in the Association that is located very close to where the channel meets the ICW. Because of that location, practically all residents of the Association have to pass in front of Mr. Raab's property when going into or returning from the ICW. The property at issue is located at 22 Simara Street, Sewalls Point, Martin County, Florida. The dock at issue in this proceeding is subject to DEP's regulatory authority. When Mr. Raab purchased this property in 1997, there was an existing marginal dock parallel to the bulk-head. Mr. Raab subsequently sought and received approval from DEP to demolish the existing marginal dock and replace it with a virtually identical structure. The existence and configuration of the marginal dock is not at issue in this proceeding. Mr. Raab thereafter sought to modify his approved marginal dock by adding a finger pier which extended into the channel 36 feet so he could dock his vessel perpendicular to the bulkhead. Mr. Raab's plan also called for the construction of two pilings 12 feet from the end of the finger pier. Mr. Raab had, as of the time of the formal hearing, re-constructed the marginal dock and had constructed the finger pier. 3/ The two additional pilings had not been constructed at the time of the formal hearing. After reviewing the modified project, DEP determined that the project was exempt from the need for an environmental resource permit under Rule 40E-4.051(3)(b), Florida Administrative Code, and Section 403.813, Florida Statutes. DEP also authorized Mr. Raab to use state-owned submerged lands if necessary. The Association thereafter timely challenged DEP's determination that the finger pier portion of the project (and the two additional pilings) did not require an environmental resource permit. There was a conflict in the evidence as to the functional width of the channel in front of Mr. Raab's property. 4/ Mr. Holly testified on behalf of the Association that the functional width of the channel was 83 feet. Mr. Lidberg, testifying on behalf of Mr. Raab, testified that the functional width was 101 feet. This conflict is resolved by finding that the functional width of the channel in front of the Raab property is 101 feet. 5/ The prevailing winds in the area in front of Mr. Raabb's dock blow into the dock. The depth of the water in the channels is influenced by tides. The principal reason Mr. Raab wants the finger pier is so that he can moor his boat with the bow to the prevailing winds in times of high winds. At the time of the formal hearing, Mr. Raab owned a vessel with an overall length of 44 feet. There was a conflict in the evidence as to whether Mr. Raab's finger pier and the two pilings that have been authorized, but not constructed, constitute a hazard to navigation. 6/ Based on the totality of the evidence, it is found that these structures do not create a navigational hazard. 7/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order dismissing the Association's challenge to the determination that Mr. Raab's project qualifies for an exemption from an environmental resource permit. DONE AND ENTERED this 1st day of March, 2000, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 1st day of March, 2000.
Findings Of Fact Sunset Company of Wilton, Incorporated, is the record title owner of a parcel of real property in Government Lot 1, Section 5, Township 66 South, Range 33 East, on Crawl Key No. 3 also known as Fat Deer Key, Monroe County, Florida. A portion of that parcel has been conveyed by Sunset Company to Whaler's Plaza, Incorporated, although that deed may not have been recorded. Petitioner Fred Roth owns and controls both corporations and exerts ownership and control over the entire parcel. The submerged lands in Tarpon Creek which are waterward of the line of mean high water contiguous to the parcel are sovereignty submerged lands. Roth received "major development" approval from Monroe County to develop the parcel by constructing a commercial/retail development known as "Whaler's Plaza.' The major development plan submitted to and approved by Monroe County includes a docking facility. In 1979 Roth filed an application with the Florida Department of Environmental Regulation for a private dock facility at Whaler's Plaza. The Department of Environmental Regulation approved that application and issued to Roth Permit/Certification No. 44-18542-5E. Roth never constructed that docking facility, and the permit expired on August 1, 1980. One of the agencies involved in reviewing that permit application was the Respondent. On June 26, 1979, Respondent notified Roth that upon review of the application in DER File No. 44-18542-5E, it had determined that the submerged lands were state-owned but that no lease agreement with Respondent would be required. After Permit No. 44-18542-5E expired on August 1, 1980, the Department of Environmental Regulation directed a letter to Petitioner advising him that the permit had expired and further advising him that if he wished to pursue the project he would have to obtain a new permit. in October 1983 Roth sought new authorization from the Department of Environmental Regulation and Respondent to construct a docking facility at Whaler's Plaza. His application was assigned DER File No. 440774875. On December 29, 1983, Respondent notified Roth that a lease would be required for the use of state-owned lands contiguous to Whaler's Plaza, relative to DER File No. 440774875. Respondent's rules changed in 1982 so that Roth's docking facility would be required to meet new criteria. The docking facility proposed by Roth in 1983 was similar to the docking facility proposed in 1979. The 1983 proposed modified docking facility was still represented to the Department of Environmental Regulation to be a private boat dock. The Department of Environmental Regulation issued an intent to deny the 1983 application under its then-existing rules, and Roth requested a formal hearing on that preliminary denial. Before a final hearing could be conducted, Roth again modified the proposed docking facility so that he qualified for a dredge and fill permit exemption from DER, so that no DER permit was needed for his project. A final order was entered by the Department of Environmental Regulation on August 27, 1985. While Roth's 1983 application was pending before the Department of Environmental Regulation, Roth was processing his application with Respondent for a submerged land lease for the docking facility. The documents he filed with Respondent, however, indicated that the docking facility was not intended to be a private dock but rather was a dock related to the commercial development at Whaler's Plaza. Roth represented to Respondent that the proposed docking facility would be for the convenience of patrons of the stores and restaurant at Whaler's Plaza and for his own personal use. Specifically, on June 3, 1985, Roth directed a letter to Respondent pursuant to Respondent's request for additional information. He described the Whaler's Plaza docking facility as follows: The wood dock will be used for arriving and departing customers of the restaurant and stores and my own personal use. The upland land use and activities of the property--will be developed into a shopping center. At the present time, the first phase is completed which is a one-story building containing four units, housing six retail stores, plus offices. The next phase will consist of three more buildings having five units each, 1,0000 [sic] sq. ft. each unit which will be for retail stores and offices, and the final phase will be a 200 seat restaurant, a miniature [sic] petting zoo and possibly a miniature golf course. ... 70 percent of the slips will be open to the general public for their convenience In patronizing the restaurant and stores; the remaining 30 percent of the slips will be for my own personal use. Roth never completed the lease application he filed with Respondent, and he failed to obtain approval for the use of the sovereignty submerged lands preempted by the docking facility proposed in DER File No. 440774875. Eventually, his pending application with Respondent was deactivated, and the file was closed. In late 1986, Roth initiated construction of his docking facility on sovereignty submerged lands, and he caused 30 pilings with cross-bracing to be placed into the submerged lands. On September 1, 1986, Grant Gelhardt, one of Respondent's enforcement officers, discovered the dock being constructed and verbally instructed Roth, through Mrs. Roth, to immediately cease construction activity. No further construction has taken place. Despite the verbal notification, a subsequent warning notice sent by certified mail, and Respondent's Notice of Violation and Order for Corrective Action, Roth has failed to remove the pilings and/or to take corrective measures regarding the partially completed docking facility. Roth has allowed vessels to be moored at the partially completed docking facility, has moored his own vessels at the partially completed docking facility, and has failed to prevent other persons from mooring at the partially completed docking facility. Roth's actions have resulted in damage to a benthic seagrass community on the adjacent sovereignty submerged lands over which Roth's partially completed docking facility is located, and over which vessels using the facility have been and would be moored. Those submerged lands constitute a benthic community of seagrass which supports various fauna and which would be adversely affected by completion and operation of the docking facility. The water depths in the area are shallow, with areas of less than -4 feet mean low water. The width of Tarpon Creek in the project area is approximately 100 feet. The length of the partially completed docking facility is approximately 150 feet. Although the dock extends parallel to the shore, the distance the dock extends into Tarpon Creek, as measured from the shoreline, is approximately 35 feet. Roth knowingly trespassed on sovereignty submerged lands by initiating construction of the docking facility, and he has willfully damaged those lands by drilling holes and placing pilings, and by allowing moored vessels to shade the seagrass. Although Roth ceased construction of the docking facility when told to stop, he has failed to attempt to resolve the violation, to remove the pilings, to seek an after-the-fact approval, or to cease all mooring of vessels on sovereignty submerged lands adjacent to the uplands, even subsequent to receiving the Notice of Violation and Order for Corrective Action. Respondent's June 26, 1979 letter to Roth authorized the activities described in DER Permit No. 44-18542-5E, for the period authorized by that permit. Roth knew that the DEP permit, and therefore Respondent's approval to engage in the activity authorized by that permit, had expired. Roth further knew that his new application filed in 1983, DER File No. 440774875, which was approved by DER after Roth further modified it in order to qualify for an exemption, did not exempt him from obtaining authorization from Respondent to use sovereignty submerged lands for the project and further knew that when he commenced construction of the docking facility in 1986 that he had not obtained approval from Respondent to use state-owned submerged lands. Roth offered no evidence to demonstrate any detrimental reliance upon the June 26, 1979, DNR letter, and the letter did not create a vested right for Roth to construct a different docking facility at a later time without authorization from Respondent. The uplands at the Whaler's Plaza commercial/retail development are owned by for-profit corporations which Roth controls and which derive income from the business and commercial activities at Whaler's Plaza. The docking facility intended primarily for the use of customers of Whaler's Plaza would therefore constitute a revenue generating/income related activity.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered requiring petitioner to: Remove the unauthorized structure within 20 days from the date on which the Final Order is entered and in accordance with Respondent's supervision of that removal; Immediately cease all mooring of vessels on sovereignty submerged lands adjacent to the uplands of the parcel known as Whaler's Plaza until authorized to use state-owned lands; and Pay a fine of $2500 within 15 days of receipt of a certified letter from the Executive Director of the Department of Natural Resources demanding payment to the internal improvement Trust Fund. DONE and RECOMMENDED this 31st day of October, 1988, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1988. COPIES FURNISHED: David L. Manz, Esquire Post Office Box 177 Marathon Florida 33050 Ross S. Burnaman, Esquire Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Tom Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303
The Issue At issue was whether Petitioner should be granted a permit from the Respondent, Department of Environmental Regulation, to excavate material in front of the Petitioner's seawall in Naples Bay, Collier County, Florida. The Petitioner owns a residential homesite lot in the Royal Harbor Subdivision in Naples, Florida. Royal Harbor is a waterfront oriented residential community devoted to single family residences; each residence either has waterfront' on Naples Bay or through a network of interior canals which provide navigational access to Naples Bay. All lots are bordered by concrete seawalls. The Concrete seawall bordering the Petitioner's property does not Immediately abut the water, but has an amounts of earth between the seawall and the water's edge, somewhat resembling a beach. It is this earth the Petitioner wishes to remove so that he may have his seawall abut the water which would facilitate the launching of a vessel from his property. Presently, it does not appear that the Petitioner could keep a boat at his property without building a lengthy dock from his seawall into Naples Bay. The Department of Environmental Regulation opposes the application in that it claims the excavation of this material would destroy an oyster bar which exists in front of the Petitioner's property and would eliminate an ecologically significant area. From the exhibits presented at the hearing and after consideration of the testimony, it appears that in the entire Royal Harbor development only the Petitioner's property lacks having the bay waters abut the seawall. The Petitioner's property is approximately one quarter mile from the channel in Naples Bay which is a low energy water body. That is to say, wave action does not become extremely forceful in this area because of the protected nature of the waterway. The Department of Environmental Regulation in part opposes the permit because they state to remove the berm from in front of the seawall would expose the seawall to direct wave energy which would cause turbidity within the waters. No direct evidence was presented that wee the seawalls in Naples Bay are in direct contact with the water that this ill fact does cause increased turbidity and therefore this testimony is rejected by this Hearing Officer as being merely speculative. On the other hand, the Petitioner made no showing that the project would actually be in the public interest except to show that the area in question was a relatively small area. Witnesses for the Department of Environmental Regulation stated that were this berm removed and the area converted to a shallow submerged bay bottom, oysters and marine vegetation would eventually propagate here, particularly if the bottom was excavated with a smooth contour. It is difficult to imagine after listening to all the testimony in this case how the granting of this permit would have a measurable environmental Impact. It would appear to this Hearing Officer that there could be some benefit to water quality from the granting of this permit by somewhat restoring Naples Bay to its original condition. Testimony was received that the entire Royal Harbor development was man-made and the removal of this fill would, in some slight degree, remove fill material that had been previously placed within the waters of Naples Bay. Testimony was also received from Mr. Thomas Provenzano, District Supervisor of the Department of Environmental Regulation, that in his opinion it would be environmentally acceptable for the Petitioner to excavate this berm from within five (5) feet of the concrete seawall. This appears to be a reasonable disposition of this dispute. Whatever destructive force the waves of Naples Bay might have on an exposed vertical seawall would be minimized by leaving a five (5) foot berm seaward of that wall and would in no way interfere with the Petitioner's intended use of his land; reasonable navigational access to Naples Bay. It is, therefore, RECOMMENDED: The application be granted with the proviso that the Petitioner leave a five (5) foot berm between Naples Bay and his vertical seawall. DONE and ENTERED this 3rd day of November, 1976, in Tallahassee, Florida. KENNETH G. OERTEL, Director Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Carole Haughey, Esquire Department of Environmental Regulation 2552 Executive Center Circle, E. Montgomery Building Tallahassee, Florida 32301 Donald T. Frank, Esquire Suite A, U.S. Home Building 3174 E. Tamiami Trail Naples, Florida 33940 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION LYNN A. LUNDSTROM, Petitioner, vs. DOAH CASE NO. 76-1555 STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
Findings Of Fact The Department is the state agency charged with the responsibility of enforcing Chapter 253, Florida Statutes on behalf of the Board of Trustees of the Internal Improvement Trust Fund (Board). The Board holds title to submerged sovereign lands pursuant to Sections 253.03 and 253.12, Florida Statutes, and Article X, Section 11, Florida Constitution. Fraraccio, together with his wife, owns a parcel of real property located in section 13, township 38 south, range 41 east which is commonly known as 26 High Point Road and which is located in Martin County, Florida. The southern boundary of the Fraraccio's property (subject property) borders the St. Lucie and Indian Rivers. In June, 1987, Fraraccio filed an application for permission to alter mangroves which grow along the shoreline of the subject property. It was Fraraccio's intention to cut the tops of the trees in order to promote horizontal growth. This application was filed with and processed by the Department of Environmental Regulation (DER). On September 1, 1987, DER issued a permit for the mangrove alteration. Pertinent to this proceeding is the following specific condition of the Fraraccio permit: 4. "No person shall commence mangrove alteration or other activity involving the use of sovereign or other lands of the state, title to which is vested in the Board of Trustees of the Internal Improvement Trust Fund or the Department of Natural Resources under Chapter 253, until such person has received from the Board of Trustees of the Internal Improvement Trust Fund the required lease, license, easement, or other form of consent authorizing the proposed use. Pursuant to Florida Administrative Code Rule 16Q-14, if such work is done without consent, or if a person otherwise damages state land or products of state land, the Board of Trustees may levy administrative fines of up to $10,000 per offense. In October, 1987, the Department's Bureau of Survey and Mapping was asked to survey the west line of the Jensen Beach to Jupiter Inlet Aquatic Preserve (Preserve) at the confluence of the St. Lucie River. Terry Wilkinson, chief surveyor for the bureau, conducted the field survey on October 14-16, 1987. Mr. Wilkinson placed a metal rebar with a cap designating "D.N.R." at a point on the mean high water (MHW) line at the Fraraccio's property. Mr. Wilkinson also staked three points with lathe markers on a line northerly along the MHW line from the rebar monument. It was Mr. Wilkinson's opinion that the Preserve abutted the Fraraccio property from the point marked by the rebar monument northward along the coast. That portion of the Fraraccio property which was south and west of the rebar did not abut the Preserve. Fraraccio disputed the findings regarding the Preserve boundary reached by Wilkinson and did not concede that his property abuts the Preserve. On December 15, 1987, the issue of the Preserve boundary was taken before the Governor and Cabinet sitting as the Board at the request of the Department, Division of State Lands. Fraraccio was represented before the Board by counsel who argued against the staff recommendation. Mr. Wilkinson's interpretation of the boundary line for the Preserve was approved. That area waterward of the MHW line from the rebar monument northerly along the Fraraccio shoreline was, therefore, deemed to be part of the Preserve and sovereign submerged land. Prior to cutting any mangrove trees, Fraraccio telephoned Casey Fitzgerald, chief of the Department's Bureau of State Lands Management, to inquire as to whether Department permission was required to trim mangroves located above the MHW line. Fitzgerald's letter advised Fraraccio "that trimming mangroves located above the MHW line would not be within the purview of this department." Fitzgerald further recommended that Fraraccio "employ the services of a registered land surveyor to specifically identify the individual trees which are so located." Fraraccio did not obtain an independent survey. Instead, he relied upon the rebar monument and the lathe markers placed by Wilkinson, and contracted to have the mangroves landward of that line trimmed. One of difficulties encountered in determining the location of a mangrove in relation to the MHW line is the fact that one tree may have several trunks and prop roots which emanate from the center of the tree. Consequently, there is some uncertainty regarding how to locate the tree. One method used locates the centermost trunk and considers that point the tree location. Another method calculates the greatest percentage of tree mass and considers that point the center of the tree. This calculated center is then matched against the MHW line. Either method results in a judgment based upon visual inspection. This judgment may differ among reasonable men. In January, 1988, Fraraccio supervised the cutting of mangroves based upon the MHW line as established by the Wilkinson survey. Fraraccio did not intend to cut trees waterward of the MHW line. No trees were cut waterward of the Wilkinson line. A number of trees were trimmed landward of the Wilkinson line. There is no evidence that either the rebar monument or the lathe markers placed by Wilkinson were moved either prior to or after the mangrove alteration. Fraraccio was responsible for the direct supervision of the workmen who completed the mangrove trim. No work was done without Fraraccio's authorization. On March 22, 1988, Kalani Cairns, inspected the Fraraccio property. Cairns took field notes of the inspection. One of comments made at that time was that it was "difficult to determine if MHWL stakes have been moved." Based upon his review of the area, Cairns determined approximately 20 mangrove trees below the MHW line had been topped. Subsequently, the Department issued the Notice of Violation and Order for corrective action. Since Fraraccio did not believe he had cut waterward of the MHW line, no corrective measures were taken. Subsequent to the Notice, additional mangroves were not cut. Fraraccio timely sought review of the notice. In preparation for the formal hearing in this cause, the Department contracted with Greg Fleming to prepare a survey of a portion of the Fraraccio property. The purpose of this second survey was to locate the MHW line along the Fraraccio shoreline and to plot mangrove trees which had been trimmed and which were waterward of the line. Approximately 24 trimmed mangrove trees were located waterward of the MHW line as determined by the Fleming survey. The Fleming survey resulted in a MHW line which was upland of the line established by the Wilkinson survey. The trimmed trees in dispute are located between the two lines, as marked on the ground, by the lathes placed by the two surveyors. Mr. Wilkinson did not testify and no credible explanation was given for why the lines, as marked in the field, differ. At the time of the cutting, however Fraraccio believed the Wilkinson lathes marked the MHW line. This belief was based upon the representations that the Department had made regarding the rebar monument marked "D.N.R." and the fact that the placement of the lathe stakes had coincided with placement of the rebar.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Trustees of the Internal Improvement Trust Fund enter a final order dismissing the Notice of Violation against Charles A. Fraraccio. DONE and ENTERED this 23rd day of June, 1989, in Tallahassee, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-4309 Rulings on the proposed findings of fact submitted by Petitioner: Paragraphs 1 through 5 are accepted. With regard to paragraph 6, it is accepted Wilkinson put down three lathes and that there is no evidence that those lathes were moved. Otherwise, the paragraph is rejected. Mr. Wilkinson did not testify and, therefore, no evidence was presented on the issue of the lathes. It is clear Fraraccio believed the lathes to be the MHW line. Paragraph 7 is accepted. Paragraph 8 is rejected as contrary to the weight of the evidence. The MHW line was correctly depicted on the ground and on paper by the Fleming survey which was done after-the-fact. Pertinent to this case is the fact that Fraraccio and DNR treated the Wilkinson survey on the ground (as shown by-the rebar and the three lathes) as the MHW line prior to the cutting. Paragraph 9 is accepted. With regard to paragraph 10, the record shows Fleming was contacted to perform the second survey in December, 1988, and that it was dated February, 1989. With that modification and clarification, paragraph 10, in substance, is accepted. Paragraph 11 is accepted to the extent that the two surveys differed on the ground (as opposed to on paper). Paragraphs 12, 13, and 14 accepted but are irrelevant. With regard to paragraph 15, it is accepted that the workmen were instructed not to cut waterward of the MHW line. The remainder is irrelevant to this proceeding. Paragraphs 16 through 18 are accepted. With regard to paragraph 10, it is accepted Fraraccio cut or trimmed the trees based upon the Wilkinson survey as depicted by the rebar and 3 lathe markers. Otherwise, paragraph 19, is rejected as irrelevant. Paragraph 20 is accepted. Paragraph 21 is rejected as irrelevant to this proceeding. Rulings on the proposed findings of fact submitted by the Department. Paragraphs 1 through 16 are accepted. The first sentence of paragraph 17 is accepted since both surveys coincided at the point of the rebar marked "D.N.R.;" otherwise, the paragraph is rejected as contrary to the weight of evidence since the surveys differed as plotted on the ground. Paragraphs 18 and 19 are accepted. Paragraph 20 is rejected as irrelevant. Paragraph 21 is accepted. Paragraph 22 is rejected as contrary to the weight of the credible evidence. Paragraph 23 is rejected as irrelevant. The number of trees cut waterward of the MHW line as established by the Fleming survey was approximately The size of the trees is irrelevant. Paragraph 24 is rejected as irrelevant. Paragraphs 25 and 26 are accepted. Paragraph 27 is rejected as irrelevant to this proceeding. COPIES FURNISHED: William L. Contole McManus, Wiitala & Contole, P.A. O. Box 14125 North Palm Beach, Florida 33408 Ross S. Burnaman Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: In April of 1979, H.C. Green and Joe Garrott (hereinafter referred to as "applicants") filed an application with the Department of Environmental Regulation (hereinafter referred to as "DER") for a permit to construct nine stormwater outfall pipes and three culverts and to realign an existing drainage ditch approximately 150 to 200 feet in length. The project site is located immediately east of the Braden River and north of State Road 70 in Manatee County. The site is to be utilized as a travel trailer park, with some 500 trailer spaces to be available. The project for which a permit is sought involves dredging to relocate an existing drainage ditch in order to straighten out the water course and permit continuity. It also involves the filling of the existing ditch and the filling necessary for the three road crossings. The applicants provided DER with "notice of new stormwater discharge" and DER advised the applicants with the proposed discharge system did not require a stormwater license. Upon review of the proposed mainland project, DER gave notice of its intent to issue a permit to construct nine stormwater outfall pipes and three culverts and to realign an existing drainage ditch. The proposed issuance of the permit was conditioned with requirements relating to the grading of the side slopes of the realigned ditch and the sodding, seeding and mulching of all exposed ground immediately after the completion of grading. The petitioner is the owner of approximately 35 acres of land south of State Road 70, which land is utilized as a mobile home park with about forty mobile homes, a fish camp and a boat rental business. As relevant to the permitting process of DER, petitioner's concerns regarding the mainland project center around pollution of the Braden River. His concerns regarding the island project (see paragraph 5 below) are pollution and the elimination of manatee, eagles and alligators. Construction of the stormwater outfall pipes, the culverts and the realignment of the existing ditch will not reduce the quality of the receiving body of water (the Braden River) below the classification designated for it (Class III). The project will not result in a significant impact upon water quality. Oyster beds, nursery grounds, marine soils and marine life will not be destroyed by the project. The project will not result in a harmful obstruction to navigation or increased erosion and shoaling of channels. The mainland portion of the applicant's property is abutted by an island consisting of approximately 10.4 acres. About one-half of the island is vegetated by blackrush or juncus roemerianus. In order to provide the temporary residents of the travel trailer park with access to the island for recreational purposes, the applicants propose to construct approximately 14,000 square feet of wooden walkways, bridges and boat docks. The project calls for the construction of mostly five feet wide walkways along the blackbrush fringes of the island, several wider bridges, two footbridges across small tidal creeks and five or six thirty-feet long and three-feet wide finger piers. The walkways, bridges, and piers are to be supported by pilings six or eight inches in diameter. The construction will range in elevation between eight and fourteen feet above mean sea level. DER issued its notice of intent to issue a permit for the island project with the conditions that turbidity screens be utilized during construction, that mats be used in blackrush and vegetated wetland areas during construction, that destroyed wetland vegetation be replanted, that docks only be used for the tie-up of resident use nonmotorized craft and that the area be posted use of the docking area by nonresidents and motorized craft. The applicants are willing to comply with those conditions and have stipulated that the docks will be used solely for the mooring of canoes, rowboats, paddleboats and similar nonmotorized craft, that the area will be so posted and that boat launching devices will not be available at the site. During the dock construction, the equipment utilized will be placed on mats. This procedure will serve to retain the roots of vegetation which might otherwise be destroyed by the placement of heavy equipment in the construction area. There will be a temporary increase in turbidity during construction, but turbidity screens will confine siltation to the construction area. The effect from construction of the docks, bridges and walkways will be minimal and short- term. The applicants are willing to restore any permanent damage caused by the construction activities. Normal use of canoes, rowboats or paddleboats in the waters surrounding the island would not create turbidity violations. The use of nonmotorized craft will prevent harm to any manatees that may be found in the area. The docks and walkways will cover less than 0.3 acres of blackrush. The only long-term adverse impacts from the proposed project are the elimination of bottom lands where the six to eight inch pilings are located and the possible shading of the juncus grass by the docks which could reduce the reproduction capacity of the juncus. The boardwalks or walkways have been planned in relation to the sun angle to reduce the shading of juncus. The proposed construction of walkways. bridges and finger piers will not have a significant long-term adverse impact upon the waters of the Braden River. Except for the location where the pilings are placed, there will be no long-term damage to benthic organisms. The short-term localized effect from construction will be minimal. The water quality standards for Class III waters will not be violated and there will be no harmful obstruction to or alterations of the natural flow of navigable waters. For purposes of these permit proceedings, the applicants have adduced sufficient evidence in the form of surveys, deeds, aerial photographs, testimony, and an affidavit of ownership to illustrate that they are the record owners of the property for which permits are being sought.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that: the applicant's application to construct nine stormwater outfall pipes and three culverts and to realign an existing drainage ditch (Case No. 79-2210) be GRANTED; the applicant's applications to construct approximately 14,000 square feet of walkways, bridges and docks (Case No. 80-175) be granted. the conditions listed in the notices of intent to issue the two permits be incorporated in the issued permits; and the petitions filed in Case Nos. 79-2210 and 80-175 be DISMISSED Respectfully submitted and entered this 6th day of October, 1980, in Tallahassee, Florida. DIANE E. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1980. COPIES FURNISHED: Ernest S. Marshall 625 9th Street West Bradenton, Florida 33505 David M. Levin and Ray Allen Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 W. Whitesell Wood, Whitesell and Karp, P.A. 3100 S. Tamiami Trail Sarasota, Florida 33579 Honorable Jacob Varn Secretary, Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The following issues have been raised by the Department: Did the Respondents carry out any dredge, fill and bulkhead activities on Mr. Romaine's land within the "waters of Florida"; if so, to what extent? If dredge, fill and bulkhead activities took place within the waters of Florida, did they cause any damage to the natural resources the Department is charged with protecting; and, if so, to what extent? If such activities took place within the waters of Florida, what actions would be appropriate to remedy the violations and the damage caused? What is the amount of expense and damage, if any, which the Respondents should be required to pay to the Department?
Findings Of Fact Mr. Romaine and his wife Purchased land along the shore of the St. Johns River on December 10, 1984. The property was purchased from Milton C. and Cheri A. Rosberg and was secured by mortgage from James L. Tison, Jr., and Frances S. Tison. The land purchased by the Romaines (hereinafter referred to as the "Property") is located on the westerly bank of the St. Johns River in Clay County, Florida. The Property is more particularly described in the copy of the Warranty Deed accepted into evidence as the Department's exhibit 1. The property immediately to the north of the Property is owned by Mr. Rosberg. The property immediately to the south of the Property is owned by Mr. and Mrs. Tison. The Tisons have resided on the property to the south of the Property for approximately 27 years. The Tisons formerly owned the Property. Mr. Tison mowed the grass on the Property and otherwise maintained the Property prior to its sale. The Tisons are familiar with the shoreline of the St. Johns River along the Property both before and after December of 1985. During the latter part of 1985, Mr. Romaine contracted with B & W for the construction of a bulkhead along the western border of the Property and the St. Johns River. From approximately December 3, 1985, to December 7, 1985, a bulkhead was built along the portion of the Property fronting on the St. Johns River. No application for dredge and fill or bulkhead activities was filed with the Department with regard to the activity on the Property, and no such permit was issued by the Department. Mr. Romaine relied upon B & W to obtain any permits required for the construction of the bulkhead on the Property. The Department was not asked whether a permit was required for the construction of the bulkhead on the Property. Other State and federal agencies were consulted concerning their jurisdiction over the construction of the bulkhead on the Property. In addition to the portion of the bulkhead constructed on the Property, approximately 31 feet of bulkhead was constructed from the border of the Property with Mr. Rosberg's property north to a dock located on Mr. Rosberg's property. Mr. Rosberg gave Mr. Romaine permission to use the dock in exchange for the construction of this portion of the bulkhead. For purposes of presenting evidence, the Department divided the bulkhead constructed along the Property into two sections: Area "A" and Area "B." Area A consists of a portion of the bulkhead which begins at the border of the Property and Mr. Rosberg's property and runs in a relatively straight line to the south for approximately 48.2 feet. The bulkhead then begins a gradual, then more pronounced, curve to the west. This is the end of Area A. The bulkhead in Area B goes almost perpendicular to the tangent of the curve in a southern to southwesterly direction in a straight line for approximately 23 feet. The bulkhead then makes a sharp turn to the west and proceeds in a straight line for approximately 12.5 feet where it intersects with the Property's southern boundary. Areas A and B are shown on the Department's exhibit 2 and Romaine exhibit 8. The designation of Areas A and B on these exhibits was not prepared by a licensed surveyor; the designation was intended only as an approximate drawing of portions of the Property. A wetland area is an area which experiences flooding or inundation of water often enough for the area to become defined by species of plants and soils characteristic of areas subject to flooding or inundation of water. Wetlands are potentially the most important part of a water body. Wetlands can maintain water quality, acting as the "kidneys" of a water body, provide habitat not found elsewhere, act as a flood storage area, protect against erosion and play an essential role in the life cycle of aquatic plant and animal life. Water quality will deteriorate if wetlands are destroyed. The wetlands that border the St. Johns River act as a flood plain where water is stored during periods when the River is high. The determination of the extent, if any, of the Department's jurisdiction over the bulkhead built on the Property, is more difficult in this case than in a case where a permit is applied for because of the inability of the Department's experts to examine the Property in its natural, undisturbed state. Because of the changes to the natural state of the Property, including filling activities, many of the natural indicators used to determine the Department's jurisdictional line on the Property have been eliminated or altered. If there is insufficient physical or other evidence to the contrary, the landowner should be given the benefit of any doubt the Department has in setting the Department's jurisdictional line and a line of restoration where property is examined after it has been altered. In determining the extent of the Department's jurisdiction in this case, the starting point is the St. Johns River itself. The open water of the St. Johns River is a water body over which the Department has jurisdiction pursuant to the Florida Administrative Code. Area B used to be a wetlands area prior to the placement of the bulkhead on the Property and the placement of fill behind the bulkhead. This finding of fact is supported, in part, by the location of a large cypress tree, which is a wetlands tree. This tree is the first tree encountered behind the bulkhead in Area B and is the dominant upper canopy vegetation. This tree has been marked by a red "X" on the Department's exhibits 2, 3 and 7. Additionally, the area to the east and south of the bulkhead (between the bulkhead and the St. Johns River) still remains as wetlands. Because of the alteration of Area B by the bulkhead and the placement of fill behind the bulkhead, it is not possible to determine exactly how far the Department's jurisdictional line goes landward from the shore of the St. Johns River. At a minimum, the area between the dashed line and the bulkhead on the Department's exhibit 3 constitutes wetlands and lands within the Department's jurisdiction. By filling the area identified in the Department's exhibit 3 as within the Department's jurisdiction, wetlands of the St. Johns River have been destroyed. This has resulted in the elimination of an area which served the functions of wetlands as explained in findings of fact 10-12. To ignore the fact that the construction of the bulkhead was completed without a permit or to now grant a permit could affect other bulkhead and fill projects along the St. Johns River. Even though the effect of the filling of Area B may be small, the cumulative impact of the destruction of multiple small areas of wetland would have an overall negative effect on the quality of the St. Johns River. In order to remedy the damage in Area B the original status quo of the area should be restored. This requires the removal of the bulkhead in Area B and all fill added behind the bulkhead in Area B down to the original contour of the land and revegetating the area with indigenous wetland vegetation. During this process, steps must be taken to control turbidity and to prevent pollution of adjacent waters. Additionally, it would be appropriate to require that numbered paragraphs 5c, 6, 7, 8 and 9, in the Department's exhibit 10, be complied with in restoring Area B. The Department's experts were unable to say where the Department's jurisdictional line was located in Area A of the Property because there was no physical evidence remaining after construction of the bulkhead from which it could be determined where the natural shoreline of the St. Johns River was located at the time of the Department's examinations. Despite the inability of the Department's experts to precisely locate the Department's jurisdictional line based upon the current condition of Area A, other evidence supports a finding of fact that the bulkhead in Area A was built within the jurisdiction of the Department. In particular, the testimony of Mr. and Mrs. Tison and the Department's exhibits 12A-12D, support a finding that the portion of the bulkhead constructed in Area A of the Property extends into the waters of the St. Johns River to the east of the former shoreline of the Property. Fill was then placed into the River between the bulkhead and the former shoreline. Mr. Tison drew a line in red on the Department's exhibit 11. This line represents the approximate former shoreline of the St. Johns River prior to the construction of the bulkhead on the Property. The area between this red line and the bulkhead is within the Department's jurisdiction. B & W used a Case 410 tractor backhoe to construct the bulkhead. This tractor had outside wheels eighty-two inches apart and it weighed approximately 14,000 pounds. A bucket at the end of the tractor was used for digging. The bucket was approximately two feet wide and the arm, when fully extended, could perform work approximately eight feet away from the body of the tractor. After digging a trench where the bulkhead was to be placed in Area A, a water jet was used to sink four-by-six posts five feet apart. Two-by-eight boards were then stacked between the posts six boards high. The backhoe was used to dig a hole approximately twelve feet behind each post where a deadman was sunk or a tieback was attached to each post. The Department's exhibits 12A-12D are Photographs of Area A during the construction of the bulkhead. They all show water of the St. Johns River between the posts to the west where the shoreline of the St. Johns River was located. Based upon the size of the backhoe, Mr. Woodyard's testimony that the backhoe's wheels, while the backhoe straddled the bulkhead area to dig the trench, were on dry land is not credible. The Department's exhibits 12A and 12D show a leaning cypress tree in the waters of the St. Johns River. The bulkhead posts pictured in these exhibits are several feet into the River. In Romaine's exhibits 3 and 4, and the Department's exhibit 4 the same leaning cypress tree is several feet landward of the bulkhead. The Department's exhibit 12C shows the bucket of the backhoe totally submerged in the waters of the St. Johns River. This further supports a finding that dredging and filling occurred in the waters of the St. Johns River. When the Department's exhibits 12A-12D (photographs of the bulkhead construction in Area A) are compared with Romaine exhibits 3 and 4 and other photographs taken after construction of the bulkhead in Area A, it is evident that fill was placed between the bulkhead and the former shoreline of the St. Johns River. The construction of the bulkhead in Area A has caused the same damage that the construction of the bulkhead in Area B caused. The same remedy suggested for Area B would also be appropriate for Area A. The Department incurred $730.17 in its investigation of this matter and the preparation for the formal hearing of this case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued finding that the Respondents have violated Section 403.161(1)(a) and (b), Florida Statutes (1987). It is further RECOMMENDED that the Final Order provide that the Respondents, jointly and severally, must pay $730.17 to the Department within twenty (20) days from the date of the Final Order in this case in reimbursement of the Department's expenses. Payment shall be made by cashiers check or money order and shall be payable to the Department of Environmental Regulation. Payment shall be sent to the Department of Environmental Regulation, Northeast District, 3426 Bills Road, Jacksonville, Florida 32207. It is further RECOMMENDED that the Final Order Provide that the Respondents are to restore the areas of the Property described in this Recommended Order within Sixty (60) days from the date of the Final Order as follows: All of the vertical bulkhead located on the Property shall be removed; All fill material within the jurisdiction of the Department shall be removed and placed upland of the Department's jurisdiction as described in this Recommended Order (the portion of Area A between the St. Johns River and the line drawn in red on the Department's exhibit 11 and the portion of Area B between the St. Johns River and the dashed line on the Department's exhibits 2, 3 and 7. The area from which the fill material is removed shall be restored to the elevation which existed prior to the violation; and During restoration of the Property, adjacent areas within the jurisdiction of the St. Johns River shall not be disturbed unless otherwise approved by the Department in writing. It is further RECOMMENDED that the Final Order provide that the Respondents shall carry out the activities described in paragraphs 5c, 6, 7, 8 and 9 of the Department's exhibit 10. It is further RECOMMENDED that the Final Order Provide that the Respondents are not to undertake any additional dredge and fill activities within the waters of Florida, other than the restoration measures described in the Final Order, without obtaining a permit or written notice that the work is exempted from permitting from the Department. It is further RECOMMENDED that the Final Order provide that the Respondents are to allow authorized representatives of the Department access to the Property at reasonable times for purposes of determining compliance with the Final Order in this case and with Chapter 403, Florida Statutes, and the Department's rules promulgated thereunder. DONE and ENTERED this 2nd day of March, 1988, in Tallahassee, Florida. LARRY J. SARTIN 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 2nd day of March, 1988. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Petitioner's Proposed Findings of Fact: Proposed Finding Paragraph Number in Recommended Order of Fact of Acceptance or Reason for Rejection 1 Hereby accepted. 2 1. 3 3 and 9. 4 13. 5 These proposed findings are not necessary. They affect the weight to be given to some of the evidence. 6 10. 7 11. 8 12. 9 14. The portion of this proposed finding after the first sentence constitutes proposed conclusions of law. 10. Hereby accepted. 11 13. 12 20. The portion of this proposed finding after the first two sentences constitutes proposed conclusions of law. 13-15 These paragraphs are not proposed findings of fact. They are summaries of testimony. See 15-17. 16 This paragraph is not a proposed finding of fact. It is a summary of testimony concerning law. 17-19 These paragraphs are not proposed findings of fact. They are summaries of testimony. See 18-19 and 28. These proposed findings are not necessary. They affect the weight to be given to some of the evidence. Summary of testimony. 22 6. 23 29. 24-26 Summary of testimony. See 3 and 21. The weight of the evidence did not support a finding that the fill in Area A extended into the St. Johns River approximately 20 feet at its widest point. 27 5 and 7. 28 8. 29 Hereby accepted. 30 22. 31-32 Summary of testimony. See 23-25. 33 25. Not Supported by the weight of the evidence. 26. The last sentence is not supported by the weight of the evidence. Cumulative and unnecessary. 37 27 38-39 Conclusions of law and argument. 40-41 Hereby accepted. Mr. Romaine's Proposed Findings of Fact: The first paragraph under the Findings of Fact portion of Mr. Romaine's proposed recommended order does not contain any relevant findings of fact. Summary of testimony and irrelevant proposed findings of fact. Summary of evidence. The following numbers correspond to the numbers of the sentences contained in Mr. Romaine's "Procedural Statement." 1 and 3. 4 and 7. Hereby accepted. Irrelevant. 5-6 Not supported by the weight of the evidence. See 5 and 6. 7-17, 19-27 32-39 and 42 Irrelevant or not supported by the weight of the evidence presented at the formal hearing. 18, 28-31 and 40-41 Hereby accepted. COPIES FURNISHED TO: JOHN P. INGLE, ESQUIRE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION TWIN TOWERS OFFICE BUILDING 2600 BLAIR STONE ROAD TALLAHASSEE, FLORIDA 32399-2400 WILLIAM A. ROMAINE 2127 WINTERBOURNE, WEST ORANGE PARK, FLORIDA 32073-5621 ROBERT E. WOODYARD, PRESIDENT B & W MARINE CONSTRUCTION, INC. 4611 LAKESIDE DRIVE JACKSONVILLE, FLORIDA 32210 DALE TWACHTMANN, SECRETARY STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION TWIN TOWERS OFFICE BUILDING 2600 BLAIR STONE ROAD TALLAHASSEE, FLORIDA 32399-2400 DANIEL H. THOMPSON, ESQUIRE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION TWIN TOWERS OFFICE BUILDING 2600 BLAIR STONE ROAD TALLAHASSEE, FLORIDA 32399-2400
