Findings Of Fact Petitioner, Island Developers, Ltd. (Fisher Island) a Florida limited partnership, owns the entire southwestern shore of the artificial spoil island known as Fisher Island, located between Virginia Key and the southern tip of Miami Beach, immediately south of the Port of Miami facilities, in Sections 9 and 10, Township 54 South, Range 42 East, in Dade County, Florida. See Composite Exhibit FI-20. On or about October 27, 1981, Fisher Island applied to DER for a dredge and fill permit to restore an existing sea-wall and thereby bulkhead about 2100 linear feet of the south-western shoreline of the island at a distance of 15 feet or greater from the shoreline.Fisher Island initially asked that DER approve the proposed project as exempt from the requirements for a dredge and fill permit, under the exemption contained in Section 403.813(2)(e) , Florida Statutes, and Rule 17-4.04(10)(h) Florida Administrative Code. The statute provides an exemption for the restoration of seawalls as follows: No permit under this chapter, chapter 373, or chapter 253, chapter 61-691, Laws of Florida, or chapter 25214 or chapter 25270, Laws of Florida, 1949, shall be required for activities associated with the following types of projects; however, nothing in this subsection shall relieve an applicant from any requirement to obtain permission to use or occupy lands owned by any water management district in its governmental or proprietary capacity or from complying with applicable local pollution control programs authorized under this chapter or other requirements of county and municipal governments. . . . * * * * * (e) The restoration of seawalls at their previous location or upland of, or within 1 foot waterward of, their previous locations. Section 403.813(2)(e), Florida Statutes (1981). The rule promulgated under this statute, recently renumbered by DER as Rule 17- 4.04(9)(h), Florida Administrative Code, provides the exemption for (h) The restoration of seawalls at their previous location or upland of or within (1) foot waterward of their previous location. No filling can be performed except in the above authorized restoration of the seawall. No construction shall be undertaken without necessary title or leasehold interest, especially where private and public ownership boundaries have changed as a result of natural occurrences such as accretion, reliction and natural erosion. The Commission recommends and encourages some method of land retention such as rip-rap, which is more environmentally compatible than verticle [sic] seawalls. Section 17-4.04(9)(h), Florida Administrative Code (1903) References in the Petition to the current rule, formerly numbered 17- 4.O4(10)(h), are t e construed as referring to the rule now renumbered as 17- 4.04(9)(h) On May 19, 1975, the Florida Legislature adopted the statutory exemption in Section 403.513(2)(e), Florida Statutes, by enacting Section 7(2)(e) of Chapter 75-22 of the Laws of Florida (the Florida Environmental Reorganization Act of 1975), in language identical to that of the current statute, except for minor grammatical changes: No permit under chapters 373, 403, or 253, Florida Statutes, shall be required for activities associated with the following types of projects; however, nothing in this subsection shall relieve an applicant from complying with applicable local pollution control programs authorized under chapter 403, Florida Statutes, or other requirements of county and municipal governments. . . . * * * * * (e) Seawalls restored at their previous location or upland of, or within 1 foot waterward of their previous location. Section 7(2)(e), Chapter 75-22, Laws of Florida 1975. See also, 1975 Jour. Fla. Sen. 325-30 (May 19, 1975). (Exhibit FI-1 attached to this Stipulation.) The legislative history does not reveal, however, whether either the original Senate Bill No. 123 or the substitute proposed by the Government Operations Committee contained the exemption for the restoration of seawalls. The report of the Conference Committee does establish that the final version of Senate Bill No. 123 included the seawall restoration exemption, unlike the House bill on environmental reorganization See Exhibit FI-3, at 7, paragraph 6. The newly organized agency (DER) created by the "Reorganization Act soon commenced proceedings to adopt rules to implement the Act. Before adopting Rule 17-4.04 (10)(h), the Director of DER's Division Permitting (Dan Farley) sent a memorandum (see Exhibit A to the Petition, at 6-17) to district and subdistrict managers, among others, setting forth the agency's interim guidance for the interpretation of the Act's provisions for short-form projects and exemptions, including the seawall restoration exemption. Farley's memorandum interpreted Section 7(e) of the Act as follows: "Seawalls restored at their previous location or upland of or within one foot waterward of their previous location." The language in this section does not include any reference to the filling of submerged lands and states that seawalls may be replaced or restored without permit when the relocated seawall is to be upland or within one foot of the previous structure. Essentially, the seawall to be repaired or replaced must be functional in relocation one foot waterward of the previous location). Additionally, the intent of this section is not to reclaim or extend the upland, and as such, the replacement of seawalls solely to extend upland areas is not included within this section. Applications to replace seawalls waterward of existing structures should be coordinated with the Department of Natural Resources. As with Section 7(1)(d), our responses will be provided without delay even if the project encompasses the one foot of sovereign lands; individuals should be advised, however, to coordinate with the Department of Natural Resources to clear the land title problems that could result from replacing a seawall one foot waterward of an existing seawall on a natural shoreline. Any reclamation-type restorations (i.e., the filling of several feet of submerged lands to the location of a previous seawall which is currently defunct--consisting of a few pilings) will definitely require permits from this agency. This interpretation also is consistent with Section 7(3) of the act. Memorandum from Dan Farley to District and Subdistrict Managers at 7-8 (August 13, 1975). (Exhibit FI-4, at 8-9.) DER circulated this memorandum for the purpose of ensuring compliance with the requirements of the interpretations contained in the memorandum. See Deposition uf Setchfield at 15. On September 10, 1975, the staff of DER proposed the following version of the seawall restoration exemption: (h) seawalls [except those covered in Section 17-4.04(10(f) restored at their previous location or upland of or within one foot waterward of their previous location. To be eligible for exemption, the existing seawall must be located landward of, or at the present line of mean high water, and no filling can be performed except in the above authorized relocation of the seawall. This exemption shall not be utilized as a method of reclaiming or extending uplands without complying with the per- mitting provisions of Chapters 253 and 403, Florida Statutes. Coding: Words underlined are additions; words in struck-through type are dele- tions from existing law. Exhibit FI-5, at 2. No memorandum or other means of explaining the additional language proposed in this version appears in the files of DER. On September 16, 1975, DER's staff proposed an amended version of the rule, as follows: (h) seawalls [except those covered in- Section 17-4.04(10(f)] restored at their previous location or upland of or within one foot waterward of their previous loca- tion. To be eligible for exemption, there shall be no substantial encroachment of waters of the state landward of the exist- ing seawall. No filling can be performed except in the above authorized relocation of the seawall. This exemption shall not be utilized as a method of reclaiming or extending uplands without complying with the permitting provisions of Chapters 253 and 403, Florida Statutes. Exhibit FI-6, at 4. The staff presented this version of the seawall restoration exemption to the Environmental Regulation Commission at the public hearing on the adoption of Rule 17-4.04(10(h), on September 25, 1975. See Transcript of Hearing at 31 (September 25, 1975). At the outset of the hearing on September 25, 1975, Senator Lewis (one of the sponsors of the Senate bill on reorganization, and vice-chairman of the Joint Administrative Procedures Committee at the time) appeared and reported that Senator Spicola of the Committee had objected that certain of the rules and regulations embodying the exemptions were "in conflict with the law," although he specifically mentioned only the dock exemption. Id. at 6. Mr. W. D. Frederick, Jr., Chairman of the Commission, responded that the Commission had not received Senator Spicola's letter of objection but would review and adjust the rule if necessary to avoid such a conflict. Id. at 8. Both Mr. Joseph Landers, Secretary of DER in 1975, and Mr. Dan Farley, Director of DER's Division of Permitting at the time, stated that the department's purpose in drafting the rules on the exemptions had been to define and clarify statutory terms, "to resolve some of the ambiguities" in the statute. Id. at 11 and 16. Farley also summarized the agency's specific reason for the language of Rule 17- 4.04(10)(h), "to prevent the reclamation of property without benefit of permits or prevent an individual from creating filled property without the benefit of permits." Id. at 27. In response to a citizen's objection to DER's proposed restriction of the exemption to seawalls landward of which "there [was] no substantial encroachment of waters of the state," Id. at 88, Farley stated the agency's justification for the rule: The reason that that is in there is because this exemption is not, it doesn't contain any specifics at all. It doesn't say you can't go out once every week and build a sea wall one foot in front of your property, thereby creating a fingerfill. It doesn't say what type of material you may build the sea wall out of. You may build it out of plywood or cardbord[sic] and continue to create land. That's the reason it's in there. We agree with the intent that an individual if he builds a sea wall can at least replace it, but let's make sure nobody abuses it. This is the kind of thing we discussed earlier. We are concerned about someone possibly abusing this and really felt very strongly in this case there was a lot of room for abuse if you didn't put some very restrictive language in here about what the intent of the rule was. The intent is to allow the individuals to replace this existing sea wall and not to create land by using this rule. Id. at 90-91. At the hearing there was no discussion of the specific requirement that a seawall be "functional," as DER has explained that requirement in various documents, including the memorandum dated August 13, 1975, from Dan Farley to district and subdistrict managers. See Exhibit FI-4. See also Composite Exhibit FI-16. Finally, on the clause forbidding "substantial encroachment of waters of the state," Mr. Doug Jones (Chief of the Bureau of Environmental Permitting) offered the following explanation: Our interpretation of the legislative intent is that you've got a sea wall that for some reason somebody wants to restore or replace it. It's in the process of failing. When that happens, normally, you know, just experience tells you that you get water in behind the sea wall, and it starts washing out little pockets behind it. The notion is that if there's a little bit of encroachment of waters of the state behind the sea wall or on the landward side of it, the upland side of it, then we think that it is the intent to let these people repair such sea walls. So that's why we came up with the language, "To be eligible for exemption there shall be no substantial encroachment of the waters of the state landward of the existing sea wall," meaning that what we are not talking about in this category is where you've got the vague remnants of a sea wall and 15 feet of water, and then a bank, a shoreline, and having somebody use this category to try to reclaim, back out to where some former sea wall may have been. This is a phenomenon particularly apparent in some locations along the Florida panhandle perhaps where there are some remnants of an old sea wall or one that was built using palm trees, and there's maybe 15 feet of water between the remnants of the old sea wall and the land. That was not felt was, should not be the intent of this particular passage. We tried to clarify it. We realize there could possibly be better wording, but we have revised it a number of times. Id. at 109-110. In the public hearing on September 25, 1975, the Commission and DER adopted the following version of Rule 17-4.04(10)h), providing the exemption for seawalls [except those covered in Section 17-4.04(10(f)] restored at their previous location or upland of or within one (1) foot waterward of their previous location. To be eligible for exemption, there shall be no substantial encroachment of waters of the state landward of the existing seawall. No filling can be performed except in the above authorized relocation of the seawall. This exemption shall not be utilized as a method of reclaiming or extending uplands without complying with the permitting provisions of Chapters 253 and 403, Florida Statutes. The Commission recommends and encourages some method of land retention such as rip-rap, which is more environmentally compatible than vertical seawalls. Section 17-4.04(10(h), Florida Administrative Code (1975). (See Exhibit FI-8.) Aside from the addition of the final sentence of the rule (at the request of the Commission), the adopted rule was identical to the draft of September 16, 1975. In a letter dated October 8, 1975, from Reynold L. Caleen, Jr., Assistant General Counsel of DER, to Mr. Carroll Webb, Executive Director of the Florida Legislature's Joint Committee on Administrative Procedures, DER transmitted a copy of the new rules to the Committee and explained that the adopted version of the seawall restoration exemption differed from previous drafts by "broaden[ing] the exemption to those seawalls where `no substantial encroachment of the waters of the state exists landward of the seawall.' " Exhibit FI-9, at 3. Cf. Exhibit FI-5, at 2 (staff draft of September 10, 1975)(seawall had to be located landward of or at the existing line of mean high water) The Committee then studied the new rules and held a public hearing on them on November 17, 1975, as a result of which the Committees raised or renewed various objections to the rules. See Letter from Carroll Webb to Joseph W. Landers, Jr., Secretary of DER (November 2, 1975)(Exhibit FI-10, at 1-2). In its introductory comments to its list of specific objections to the exemptions set forth in Rule 17-4.04(10) the Committee stated its general thesis: As a result of the exemptions set forth in 7(2) of the Reorganization Act, DER has amended its Rule 17-4.04(10) to incorporate the statutory exemptions. In the process of amending their rules, DER defined certain words used in the statute which were not defined by the legislature. Most of the objections to Rule 17-4.04(10) arise because the definitions given to the statutory words have the effect of limiting the statutory exemptions, hence frustrating the legislative intent of granting the exemptions. Exhibit FI-10, at 3. Referring specifically to the exemption for seawall restoration, the Committee adopted the following objections: Page 4 10(h) Section 7(2)(e) of Chapter 75-22 authorizes the restoration of seawalls at their previous location or upland of, or within one foot waterward of their previous location; observe that the statute makes no distinction between artificial bodies of water and natural bodies. DER by rule prohibits the restoration of seawall construction in artificial bodies of water, where Section 7(2)(i), Laws of Fla., supra, imposes no such limitations. See reference to 17-4.04(10(f). DER imposes additional restrictions on the statutory right to construct seawalls pursuant to Section 7(2)(e) of Chapter 75-22 by denying a person the right to restore a seawall otherwise in compliance with the statute if there is "substantial encoroachment of waters of the state landward of the existing seawall." DER also prohibits the use of this statutory exemption if the purpose of restoration is to reclaim or extend uplands. The statute does not speak to "purpose" of restoration--it speaks to "place" of restoration. The definitional problem of "uplands" is also present. Conclusion: The rule amends, modifies, or alters Section 7(2)[e], Chapter 75-22, supra, by modifying the statutory exemption for permit for restoration of a seawall. Composite Exhibit FI-10, at 11-12; cf. Id. at 7 (proposed objections took nearly the same form as the adopted version, except that conclusion was stated as general proposed objection). On November 24, 1975, the Committee certified its objections and transmitted a copy of them to DER. Composite Exhibit FI-10, at 1-2. On December 11, 1975, DER responded, requesting more time for the agency and the Environmental Regulation Commission to act on the objections. Id. at 13-14. Eventually, DER modified the rule to meet the Committee's objections. See Exhibit FI-11, at 3. During the winter and early spring of 1976, members of the staff of DER met with those of the Committee and appeared before the Committee at least once. Ms. Victoria J. Tschinkel, then a special assistant to Doug Jones (Chief of the Bureau of Permitting) and presently the Secretary of DER, participated in redrafting the rule to meet the Committee's objections. With advice from DER's Legal Department, she drafted the following version of the rule: 17-4.04(h) (h) seawalls [except those covered in Section 17-4.04(10(f)] restored at their previous location or upland of or within one (1) foot waterward of their previous location. However, where title to the land landward of the seawall has reverted to the State of Florida due to natural erosion, filling of such lands shall not be performed without written approval of the State of Florida Department of Natural Resources. The Commission recommends and encourages some method of land retention such as rip-rap, which is more environmentally compatible than vertical seawalls. Exhibit FI-12, at 3; see Exhibit FI-13, at 4 (handwritten version identified by Ms. Tschinkel as in her handwriting) Apparently, the rule underwent further revision, for in April 1976 the staff produced a draft almost identical to the version adopted a month later: 17-4.04(10) h) (h) seawalls restored at their previous location or upland of or within one (1) foot waterward of their previous location To be eligible for exemption, there shall be no substantial encroachment of waters of the state landward of the existing seawall. No filling can be performed except in the above authorized restoration of the seawall No construction shall be undertaken without necessary title or leasehold interest especially where private and public ownership boundaries have changed as a result of natural occurrences such as accretion and reliction The Commission recommends and encourages some method of land retention such as rip-rap, which is more environmentally compatible than vertical seawalls. Exhibit FI-14, at 2-3. Finally, on June 13, 1976, the Secretary of DER certified the adoption of the following amendments to Rule 17-4.04(10)(h)(words struck through were deleted; language underscored was added) on May 12, 1976: seawalls restored at their previous location or upland of or within one foot waterward of their previous location. No filling can be performed except in the above authorized restoration of the seawall. No construction shall be undertaken without necessary title or leasehold interest especially where private and public ownership boundaries have changed as a result of natural occurrences such as accretion, reliction and natural erosion. The Commission recommends and encourages some method of land retention such as rip-rap, which is more environmentally compatible than vertical seawalls. Exhibit FI-11, at 7. After DER adopted this version of the rule, the Committee withdrew its objections to Rule 17-4.04(10)(h) There is no significant difference between the form of the rule adopted in 1976 and the present version (codified at Section 17-4.04(9)(h) of the Florida Administrative Code, as explained in paragraph 2 of this Stipulation) At least since August 13, 1975, when Dan Farley (the Director of DER's Division of Permitting at the time) sent the memorandum described in paragraph 4 about (see Exhibit FI-4) to district and subdistrict managers, among others, the consistent practice of DER in all districts has been and is to interpret the exemption for restoring seawalls as requiring that functional means essentially intact and preventing inundation of areas landward of the seawall. See Composite Exhibit FI-16. Thus, so far as can be discovered, DER has uniformly denied the exemption for any seawall falling to comply with the functionality requirement by being located substantially waterward of mean high or ordinary high water in places or so deteriorated as to permit more than minimal erosion of the land behind the seawall. Besides the memorandum from Mr. Farley described in paragraph 4 above, DER has recorded the same "functionality" requirement in various other documents (see Composite Exhibit FI-16; Exhibit FI-17), including the Dredge and Fill Manual, the departmental training manual for dredge and fill permitting, not published to the general public but given to each and every individual processor of dredge-and-fill applications in all the districts. See Deposition of Walker at 34-35. DER has never adopted or promulgated the "functionality" requirement a a rule independent of Rule 17-4.04(10)(h). Although the title page of the Dredge and Fill Manual contains a disclaimer that the manual "is not to be used as a rule of the department," Ms. Tschinkel, Ms. Suzanne Walker (current Chief of the Bureau of Permitting), and Ms. Helen Setchfield (a special technical assistant to the Director of the Division of Permitting) all testified in deposition that DER compiled the manual to ensure uniform procedures and application of the statutes, rules, and policy statements of DER on dredge and fill permitting, including a uniform application of the requirement that a seawall be functional to be eligible for the seawall restoration exemption. Each of them also took the position that she would reverse (or urge reversal of) any decision by a lower ranking member of DER's staff that ran contrary to the seawall functionality requirement for this exempton, as stated in the documents in Exhibit FI-4 and Composite FI-16, and in the Dredge and Fill Manual. On behalf of the department, Ms. Setchfield authored the following statement of DER's imposition of a functionality requirement in applying the seawall restoration exemption: 5. Seawalls [Section 403.013(2)(e), Fla. Admin.Code Rule 17-4.04(h)] This exemption provides for the restoration of a seawall at its previous location or upland of the previous location or within one foot waterward of the previous location. The exemption for restoration of a seawall is designed for the repair or replacement of an existing, functioning seawall. It does not include the rebuilding of a seawall which was obliterated at some earlier time. The exemption does not include any filling other than the actual placement of the seawall material and minimal backfill. It does not include reclaimation pursuant to Section 253.124(8), F.S. At the direction of the Environmental Regulation Commission we should encourage applicants to use riprap; however, it is not mandatory that they do so except where the seawall is being restored within the Biscayne Bay Aquatic Preserve. Exhibit FI-17, at 188 (Manual at 188). Ms. Setchfield based this version on all available written statements of DER's consistent interpretation and guidelines for application of the exemption. As far as can be discovered, DER is consistently carrying out its intent of uniformly applying these criteria and requires all applicants for the exemption to meet all elements of the position stated in the manual and the documents of Exhibit FI-4 and FI-16. This has been the consistent practice of DER throughout the state since August 1975 and reflects the status of the seawall restoration exemption both in 1981 when Fisher Island applied for the exemption and at present. On December 9, 1981, Richard Walesky and Larry O'Donnell of the South Subdistrict Office in West Palm Beach submitted their report of a visual inspection of the site made by fur. Walesky in November 1981. Mr. Walesky walked along the shoreline and swam over the area just offshore in which the applicant's consulting engineer had plotted the line of the seawall. Mr. Walesky concluded that because water completely covered the allegedly existing seawall except for some pilings in a line along the northern portion of the southwestern shoreline, substantially waterward of the existing mean high water line, and because he found no other visual evidence of the seawall, it was not "a functional seawall and clearly [did] not fit the requested exemption." Exhibit FI-18. On the basis of the report of Mr. Walesky's visual inspection of the site, DER informed Petitioner Fisher Island that its project did not qualify for the exemption. Accordingly, DER proceeded to process the application for a standard dredge and fill permit and eventually issued its Intent to Deny the permit, on April 15, 1983. See Composite Exhibit FI-19. Fisher Island owns the submerged lands lying between the existing seawall and the line of mean high water. The Board of Trustees of the Internal Improvement Trust Fund (Board) sold the lands in question in 1920, and Fisher Island has purchased those lands along with most of the island. See Composite Exhibit FI-20. Acting through the Department of Natural Resources (DNR), the Board has admitted Fisher Island's ownership of the submerged lands that Petitioner proposed to fill and reclaim, and the Board and DNR have raised no objection to Petitioner's application for a permit to restore the seawall. See Exhibit FI-21.
The Issue The issue in this appeal is whether the decision of the City of Clearwater Development Code Adjustment Board denying Petitioner's application for variances for certain signage on his property is supported by the evidence in the record, or whether it departs from the essential requirements of law. See Section 137.014(f)(3), City of Clearwater Land Development Code.
Findings Of Fact Petitioner is the owner of certain property located at 1923-1943 U.S. Highway 19 North, Clearwater, Florida (Section 05-29-16, M&B 23.05). This property is zoned CC (Commercial Center), and is the site of a strip shopping mall. On or about March 23, 1989, Petitioner applied for three variances for the subject property, as follows: 243 square feet to permit a total of 411 square feet of property identification signage; 13.5 feet in height to permit a 33.5 foot high pole sign; permission for a roof mounted sign. The Development Code Adjustment Board denied Petitioner's application for variances on April 13, 1989, and Petitioner timely filed this appeal of the Board's decision. Under the provisions of the City of Clearwater Land Development Code applicable to the Petitioner's property, only 168 square feet of property identification signage and pole signs not to exceed 20 feet in height would be allowed without a variance, and roof signs of any kind are prohibited unless a variance has been granted. Several months prior to Petitioner's filing for these variances, a roof sign was erected on the building located on the subject property. This roof sign consists of individual letters spelling "Harbor Square", which is the name of this shopping mall. The letters are from 3 feet, to 4 feet 9 inches in height, and span a distance of 34 feet 9 inches in width. The roof sign replaced a property identification sign at the right of way which previously carried the name of the shopping center, but the space on the pole sign previously used to identify the mall was not eliminated. That space is now used to identify a uniform business in the mall. Petitioner is seeking these after the fact variances to authorize the roof sign which has already been erected, and to approve the height of an existing pole sign. An enforcement action initiated by the City is pending this variance determination. Tenants in the Harbor Square mall testified that the change in signage has made the mall more visible and accessible, and several of their customers have commented that their businesses are now easier to find. The tenants feel that this change in signage will benefit their businesses financially. The Development Code Adjustment Board has previously granted variances from the signage limitations imposed by the Code, but the evidence produced at hearing indicates that none of these variances were granted after the fact. The two variances which were approved for roof signs were based upon a finding of conditions unique to the property which created a hardship for the applicant. In both instances, the Board found that the applicant had not created his own hardship, but that it arose from the size or positioning of the property involved in each application. In this case, nothing unique about the property can be found. The applicant has caused his own problems by allowing a sign to be erected without first obtaining a permit or variance. The Petitioner urges that it was the responsibility of his sign contractor to obtain all necessary permits or variances, and that the contractor did not inform him that a variance was necessary before he erected the sign. However, neither the sign contractor nor the Petitioner himself was present to testify, and therefore, there can be no finding with regard to his credibility, or with regard to whatever arrangement he had with the contractor. In any event, as the property owner seeking a variance, Petitioner has failed to establish any basis for a finding of a hardship or circumstance unique to his property, other than the fact that he allowed this sign to be erected without obtaining the necessary approvals from the City.
Findings Of Fact By Joint Application for Works in the Waters of Florida filed April 14, 1993, Petitioner requested a dredge and fill permit. The application pertains to the construction of a 3245 square feet platform over a part of Doctors Bay in Naples. Petitioner intends to construct a home on the platform. The application explains that an existing dock covers 1200 square feet of the area proposed to be covered by the new structure. Petitioner offers in the application to enhance the habitat beneath the overwater structure by adding clean concrete rubble and pilings. The application assures that the material would provide suitable substrate and increase the surface area for encrusting organisms such as algae, barnacles, sea squirts, and oysters. The application states that Petitioner would riprap the shoreline and a deadend corner immediately west of the parcel in order to improve tidal flushing. According to the application, Petitioner would also plant mangroves near the deadend corner, as well as inside an atrium entrance to the home. The proposed structure would be located at the south end of a parking lot at the southeast corner of Park Shore Drive and Gulfshore Boulevard. West of the proposed structure is a narrow strip of land running alongside Gulfshore Boulevard. North of the proposed structure is a part of the narrow strip of land and the parking lot. The north and west sides of the proposed site are bulkheaded by vertical seawalls. The waters of Doctors Bay extend south and east of the proposed structure. To the south are a 10-slip dock and a fingerfill peninsula. To the east are several overwater structures covering about 25,000 square feet of water with each structure measuring about 50 feet by 500 feet. The structures are devoted to retail operations. The structure immediately east of the proposed structure is a restaurant owned by Petitioner. Doctors Bay is a Class II waterbody, although it is closed to shellfishing. The waterbody was originally a viable estuary, as part of a relatively shallow back bay and mangrove system. But, as a result of extensive development permitted mostly in the 1960s and 1970s, the waterbody bears little resemblance to the natural system that it once was. Vast areas of the estuary have been dredged and filled for the construction of structures and bridges. Tidal flushing has been impeded by the fill, as well as the uneven bottom left by the dredging projects. Tidal flushing in the area of the proposed project is impeded by the Park Shore Drive bridge to the north. The bay is nearly closed at the point of the bridge. The flushing problem is exacerbated at the proposed site due to prevailing currents and winds, which drive vegetative debris and trash into 90- degree corner of the bay at the site of the proposed structure. The water in this artificially created deadend corner of the bay is not without a source of agitation, however. In addition to runoff from the nearby parking lot, undetained stormwater from Gulfshore Boulevard is dumped into the deadend corner by a stormwater outfall. Not surprisingly, the waters of Doctors Bay violate water quality standards for dissolved oxygen (DO). Monthly DO readings from 1977 through 1989, which was the last year such date were collected, show a trend of water quality deterioration. The site closest to the proposed site violated the DO standard of four parts per million one month each year between 1977 and 1987. In 1988, the same waters violated the DO standard four months, and, in 1989, these waters violated the DO standard eight months. Almost all of the Moorings Bay system, of which Doctor Bay is a part, violated the DO standards for over six months of 1989. Sediments at the proposed site are sandy and silty with shell fragments and high concentrates of polychaetes, or marine worms. Open-water sediments are oxygenated with no presence of hydrogen sulfide. Sediments under existing platforms are not oxygenated and convey the rotten-egg odor of hydrogen sulfide. Microalgae exist on the open-water sediments and shell fragments, but not on those under the platforms. Transparency is much greater in the open water than in the shaded water. Pilings in the area hosted the typical encrusting organisms, such as oysters, barnacles, and periwinkles. As stated in Respondent's inspection report of July 7, 1993, a short- term impact of the proposed project would be the resuspension of nearby sediments from the turbulence of the pile-driving. Under the circumstances, it is unnecessary to address the other short-term concern expressed in the inspection report-the resuspension of heavy metals suspected to exist in the sediments due to the stormwater outfall. As stated in the inspection report, other impacts of the proposed project would include a reduction in transparency. Shading reduces the depth at which photosynthesis takes place, By reducing transparency, the proposed project would likely reduce by at least 10 percent the compensation point, which is the point at which the production of oxygen by plants through photosynthesis is equal to the use of oxygen by plants through respiration by organisms. Also, the proposed structure would interfere with what little water movement exists in the area. Pilings would trap debris, whose decomposition in the water would further reduce DO levels. By letter July 12, 1993, Respondent required Petitioner to submit, among other things, reasonable assurance that the proposed mitigation would reduce the expected impacts of the proposed project and a plan or procedure to protect nearby waters. Petitioner proposes mitigation through the placement of riprap under the proposed structure, which is intended in part to ensure that trapped debris and trash remain above-water. Petitioner also proposes the planting of mangroves over a 140 square foot area, despite the presence of the seawall, and a 400 square foot area atrium in the structure. Aside from an upland relocation of the proposed project, no mitigation can provide the necessary reasonable assurances. Correctly concluding the same thing, Respondent informed Petitioner, by letter dated March 14, 1994, that his application was denied.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Protection enter a final order denying Petitioner's application. ENTERED on December 22, 1994, in Tallahassee, Florida. ROBERT E. MEALE 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 on December 22, 1994. APPENDIX Rulings on Petitioner's Proposed Findings 1-12: adopted or adopted in substance. 13-14: rejected as unsupported by the appropriate weight of the evidence. 15-16: rejected as unnecessary. 17 (first sentence): adopted or adopted in substance. 17 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 18-19: rejected as subordinate. 20: adopted or adopted in substance. 21: rejected as subordinate. 22: rejected as subordinate and unsupported by the appropriate weight of the evidence. 23: rejected as subordinate. 24-25: adopted or adopted in substance. 26-27: rejected as unsupported by the appropriate weight of the evidence. 28-30: rejected as unnecessary. 31 (first sentence): rejected as subordinate and irrelevant. 31 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 32-33: rejected as unsupported by the appropriate weight of the evidence. Rulings on Respondent's Proposed Findings 1-4 (first sentence): adopted or adopted in substance. 4 (second sentence): rejected as irrelevant. 5-23: adopted or adopted in substance. 24-29: rejected as unnecessary. 30-31: adopted or adopted in substance. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Philip J. McCabe, pro se 8111 Bay Colony Dr. #204 Naples, FL 33963 Douglas M. MacLaughlin Assistant General Counsel 2600 Blair Stone Road, Room 654 Tallahassee, FL 32399-2400 J. Kendrick Tucker Huey Guilday Highpoint Center, Suite 900 106 E. College Ave. Tallahassee, FL 32302
The Issue Whether the Department of Environmental Regulation should grant a dredge and fill permit to James N. and Janice E. Nash authorizing removal of eleven cubic yards of soil, installation of five 24-inch culverts in lieu of two 18- inch culverts, and placement of 19 cubic yards of limerock in and around the bed of an unnamed creek near the point it reaches the Alford Arm of Lake Lafayette in Leon County, Florida?
Findings Of Fact More than a thousand acres in eastern Leon County comprise the drainage basin giving rise to the unnamed stream that intermittently wends its way across the Alvarez property, crosses the 30-foot wide "tongue" of the Nashes' lot, and traverses the Saltiels' land on its way to the Alford Arm of Lake Lafayette (unless it reaches Alford Arm earlier because rain or other conditions have raised the lake, moving the water's edge upland.) Although neighbors allow them ingress and egress by another route, when flooding makes the roadway impassable, Mr. and Mrs. Nash have no legal right of access other than by the private road which crosses the intermittent stream. In addition to wetlands on either side, part of the streambed, 15 feet wide where it meets the roadway, was originally filled in 1968, when the private drive was built. The strip of land, 30 feet wide and 700 feet long that underlies most of the private road, joins the part of the parcel where the Nashes' house stands to Deep Wood Trail, the public thoroughfare which the private road enters. Leaving a car on the Deep Wood Trail side of the stream, wading across to the other side, and hiking to the house pose difficulties for Mr. Nash, who has muscular dystrophy. Under some conditions, the roadbed acts as a dam. When the lake is low, water flowing downstream may be impeded. When the lake is high, backwater moving in the other direction may be impeded. Of the two culverts installed when the private road was constructed, each with a diameter of 18 inches, only one permits water to flow through now, and even it is partially clogged. When Lake Lafayette rises above 45.3 feet NGVD, Alford Arm spills over the terrain between it and the Nashes' road, and reverses the flow in the streambed where it intersects the roadway. The "invert of the stream at the subject crossing [is] 44.3 feet [NGVD]." T.402. The roadbed is submerged in the vicinity of the stream when Alford Arm rises above 46.7 feet NGVD. The Nashes propose to excavate the streambed (about two and a half feet deep in the natural channel on either side of the existing fill) where it crosses (diagonally) the Nashes' private road, remove the existing culverts together with the soil in which they are embedded, install five culverts, each 24 inches in diameter, in their stead, install cement bag riprap at the ends of the culverts, remove 11 cubic yards of dirt from a 205' by 10' wide section of existing road surface and replace with 19 cubic yards of lime rock surface, Nashes' Exhibits Nos. 5 and 6, realigning the roadway slightly (to avoid the existing encroachment on the Saltiels' property) and increasing the roadbed's elevation over a 205-foot stretch by no more than four inches. Five trees are to be removed, but other trees are to be protected "by tree protection barricades." Nashes' Exhibit No. 7A. Filter fences upstream and down would contain turbidity during construction. The plan is to lay sod and plant grass seed afterwards in order to prevent erosion. Larger culverts would permit the flow of a greater volume of water at lower velocity, more closely approximating the natural regime and reducing scour or erosion downstream. Even when water levels exceeded the elevation of the existing roadbed, more water than the existing culverts can accommodate could move through the proposed replacement culverts, and at a slower velocity. At water levels above the existing grade and below the proposed, slightly higher grade, however, the four inches or less of limerock added to the roadbed would act as a (presumably somewhat porous) barrier to flows that could now move over the roadway unimpeded. The proposed improvements would have no discernible effect on water levels whenever Alford Arm overtopped the roadbed. Ted L. Biddy, the professional engineer called as a witness by the Nashes, testified that a 25-year return two-hour storm would raise water immediately upstream of the roadway, when runoff concentrated there, to levels above the existing roadway grade, assuming that the drainage basin was saturated at the time of the rainfall and that all ponds within the basin were full, but that the level of Lake Lafayette was at or below 45.3 feet NGVD. T.489. "Ordinary high water for Alford Arm is 45.7 [feet NGVD.]" T.486. On this record, it can only be a matter of speculation how often (if ever) a 25-year return, two-hour storm might be expected to occur after rainfall has saturated the ground and filled all ponds in the drainage basin without raising the lake above 45.3 feet NGVD. The wet conditions Mr. Biddy assumed already to obtain in the drainage basin at the time of the hypothetical storm seem unlikely to coincide with the low lake level assumed to occur simultaneously. Alford Arm's 100-year flood level is 51 feet NGVD, "50.25 for the 25 year flood or rainfall, and elevation 49.9 for the 10 year storm water event." T.425. In any event, flooding of the Saltiels' property attributable to the proposed raising of the roadway would last only a matter of hours every quarter of a century according to Mr. Biddy, and would represent temporary diversion of water that would otherwise have flooded their property downstream of the roadway. Even then, no house or structure on the Saltiels' property would be affected nor any part of their property not within the 100-year flood plain. At all water levels below the existing roadway grade, the overwhelmingly more frequent condition, larger culverts would prevent or diminish flooding that might otherwise reach the Saltiels' property upstream of the roadway. By impeding flows downstream, the roadway affords some solids suspended in the water an opportunity to precipitate, instead of being borne on into Alford Arm. Under certain conditions, the larger culverts proposed by the Nashes would reduce time for particulate matter to settle upstream of the roadway; the greater volume of flow through larger culverts would reduce the time water was impounded upstream. Uncontroverted expert testimony established, however, that any increase in turbidity in water reaching Alford Arm would not violate applicable standards.
Recommendation It is, accordingly, RECOMMENDED: That DER issue a dredge and fill permit to Mr. and Mrs. Nash for the project described in their application on the conditions stated in the notice of intent to issue. DONE and ENTERED this 28th day of August, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1992. APPENDIX Petitioners' proposed findings of fact Nos. 2 and 10 have been adopted, in substance, insofar as material. With respect to petitioners' proposed finding of fact No. 1, what knowledge petitioners are charged with is a matter of law. Petitioners' proposed findings of fact Nos. 3, 4, 7, 8, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29 and 31 pertain to subordinate matters. Petitioners' proposed findings of fact Nos. 5, 6 and 32 pertain to immaterial matters as does petitioners' proposed finding of fact No. 9. Only the dredge and fill permit DER proposes to grant the Nashes is at issue. With respect to petitioners' proposed finding of fact No. 30, the calculations of both Mr. Flatt and Mr. Biddy seem to be flawed. With respect to petitioners' proposed finding of fact No. 33, it is not clear that the proposed project would increase the flooding on the Saltiels' property significantly. Temporally de minimis, the change might amount only to relocating the flooding. With respect to petitioners' proposed finding of fact No. 34, see finding of fact No. 12. With respect to petitioners' proposed finding of fact No. 35, larger culverts will decrease the velocity of the flow through the culverts. Petitioners' proposed finding of fact No. 36 is immaterial because it does not relate to any applicable rule or statutory standard. With respect to the individual respondents' and intervenor's (applicants') proposed findings of fact Nos. 1 and 2, the application does not specify dredge and fill. The applicants' proposed findings of fact Nos. 3, 4, 5, 7, 8, 10, 17, 18, 19, 20 and 32 have been adopted, in substance, insofar as material. With respect to the applicants' proposed finding of fact No. 6, backwater flows at levels above 45.3 feet NGVD. With respect to the applicants' proposed finding of fact No. 9, the OHW is 45.7 feet NGVD. With respect to the applicants' proposed finding of fact No. 11, testimony so implied. With respect to the applicants' proposed finding of fact No. 12, Mr. Nash suffers from muscular dystrophy. The applicants' proposed findings of fact Nos. 14 and 15 pertain to subordinate matters. With respect to the applicants' proposed finding of fact No. 16, the only testimony regarding flooding concerned the critical 25-year return storm. With respect to DER's proposed findings of facts Nos. 1 and 2, the application does not specify dredge and fill. With respect to DER's proposed finding of fact No. 3, backflows begin at 45.3 feet NGVD. With respect to DER's proposed finding of fact No. 4, not all fill would be removed. With respect to DER's proposed finding of fact No. 5, testimony so implied. With respect to DER's proposed finding of fact No. 6, no statute or rule specifies a design storm. DER's proposed finding of fact No. 7 is really a conclusion of law. With respect to DER's proposed finding of fact No. 8, less settling may result in more suspended solids under some conditions. DER's proposed findings of fact Nos. 9, 10, 11 and 12 have been adopted, in substance, insofar as material. DER's proposed finding of fact No. 13 is immaterial to the merits. COPIES FURNISHED: John A. Barley P.O. Box 10166 Tallahassee, FL 32302 Donna H. Stinson Moyle, Flanigan, Katz, Fitzgerald & Sheehan, P.A. 118 North Gadsden Street Suite 100 Tallahassee, FL 32301 Candi E. Culbreath Patricia Comer 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carlos Alvarez c/o Hopping, Boyd, Green & Sams 123 South Calhoun Street Tallahassee, FL 32301 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue This case concerns the issue of whether the Petitioner should be granted an exemption to construct approximately 2,100 linear feet of seawall along the western and southwestern shorn of Fisher Island, located in Biscayne Bay, Florida. In the alternative Petitioner seeks to obtain a permit for such construction nod accompanying fill in the event that it does not qualify for an exemption. At the final hearing Petitioner called as witnesses John f. Guttman, Jon Staiger, J. Van De Kreeke and Howard Teas. Tee Respondent called as witnesses Richard E. Walesky and Jeremy Allen Craft. The Petitioner offered and had admitted into evidence 93 exhibits. The Respondent offered and had admitted into evidence 7 exhibits. Subsequent to the final hearing the parties submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are inconsistent with this order, they are rejected as being unsupported by the evidence or as unnecessary to a resolution of this cause.
Findings Of Fact At the final hearing the parties stipulated to certain facts and based upon that stipulation those facts are found as follows: Petitioner FISHER ISLAND, a Florida limited partnership, owns the entire western and southwestern shore of the artificial spoil island known as Fisher Island, located between Virginia Key and the southern tip of Miami Beach, immediately south of the Port of Miami facilities, in Sections 9 and 10, Township 54 South, Range 42 East, in Dade County, Florida. FISHER ISLAND owns the submerged lands lying between the existing seawall and the line of mean high water. The Board of Trustees of the Internal Improvement Trust Fund (Fund) sold the lands in question in 1920, and FISHER ISLAND has purchased those lands along with most of the island. The lands owned by FISHER ISLAND are set forth in the legal descriptions contained in Deed Nos. 16,336, 16,336c, and 18110 from the Board of Trustees of the Internal Improvement Trust Fund and in two deeds dated October 31, 1979, from Fisher Island Associates, Inc., and Cocolobo Corporation to Island Developers, Ltd. Acting through the Department of Natural Resources (DNR), the Board has admitted FISHER ISLAND'S ownership of the submerged lands that Petitioner proposed to fill and reclaim, and the Board and DNR have raised no objection to Petitioner's application for a permit to restore a seawall. On or about October 27, 1981, FISHER ISLAND applied to Department of Environmental Regulation (DER) for a dredge and fill permit to restore an existing seawall and thereby bulkhead about 2 100 linear feet of the southwestern shoreline of the island at a distance of IS feet or greater from the shoreline. FISHER ISLAND initially asked that DER approve the proposed project as exempt from the requirements for a dredge and fill permit, under the exemption contained in Section 403.812(2)(a) of the Florida Statutes and Rule 17-4.04(9)(h) of the Florida Administrative Code. On December 9, 1981, Richard Walesky and Larry O'Donnell of the South Subdistrict Office in West Palm Beach, submitted their report of a visual inspection of the site made by Mr. Walesky in November, 1981. Mr. O'Donnell did not inspect the site. Mr. Walesky walked along the shoreline and swam over the area just offshore in which the applicant's consulting engineer had plotted the line of the seawall. He took no measurements and no soil, water, or any other kind of samples. He did take panoramic photographs of the shoreline. Mr. Walesky observed in his report that 8 to 10 mangroves were scattered over several hundred feet of the area at issue, along with some Australian pines, and that a large dredging pipe was tied up to the trees along the same portion of the shore. He concluded that because water completely covered the allegedly existing seawall except for some pilings in a line along the northern portion of the southwestern shoreline, waterward of the existing mean high water line, and because he found no other visual evidence of the seawall, it was not "a functional seawall and clearly [did] not fit the requested exemption." On the basis of the report of Mr. Walesky's visual inspection of the site, DER informed Petitioner FISHER ISLAND that its project did not qualify for the exemption. Accordingly, DER proceeded to process the application for a standard dredge and fill permit. On January 4, 1983, Mr. Walesky returned to the site for an inspection of the site's biological characteristics and value and an assessment of the projected impacts of the proposed seawall restoration on the environment. Again, he took no measurements or samples. He did not note the presence of any grass beds, oyster beds, or clam beds. He did take certain photographs of the shoreline. Mr. Walesky noted that cost of the area was sandy and clean, with algae-covered boulders the main form of life present. On the basis of Mr. Walesky's two inspections, DER issued its Intent to Deny the permit requested by FISHER ISLAND, on April 15, 1983. The shoreline along which Petitioner wishes to place the proposed seawall runs primarily along the southwest side of Fisher Island. This area is adjacent to a channel called Norris Cut. The depth of the water along Norris Cut drops abruptly from as little as 2 feet to as deep as 18 feet. Over the past years there has been substantial erosion along this shoreline. However, there is a very gradual slope from the shoreline to a point off-shore where there is an abrupt and steep drop-off into the cut. The point where this drop- off occurs is in a straight line along this shoreline and is in direct line with the old seawall located along the Garwood Estate which is located in part along the same shoreline but east of the proposed seawall area. This area of the shoreline is constantly impacted by strong currents and wave action. Aerial photographs from as early as 1945 reveal that the straight line along which the abrupt drop- off occurs has remained straight and in the same position since 1945. This line and the resulting contours are very unusual along shores of is lands in this area and is consistent with the existence of an artificial structure such as a seawall holding the sand along the shore in place. Typically shorelines in this area which are exposed to this type of tidal, wave and current action have a more gradual slope and a more meandering slope or shoreline. Those same aerial photographs reveal continual erosion along this shoreline and in recent years the rate of erosion has accelerated. This erosion problem would be eliminated by the proposed seawall. There presently remains along the western tip, two rows of tieback pilings, totaling 80 in number. These tiebacks at one time were part of the seawall which was built along this shoreline. Seaward of one of these groups of tiebacks there remains a small area where the pilings and planks of the old seawall are still visible. A second group of tiebacks is located along the southwest shore and number 42. These two groups of pilings appear to be parallel to the line of drop-off and functioned as part of a seawall along this shore. In the early 1960's pilings along the drop-off line extended above water level and were visible along approximately 50 per cent of the area of the proposed seawall. These pilings were a navigational hazard and in 1981 were nipped off at the sand bottom in order to avoid boating accidents. These piles were part of the old seawall. Just east of the area of the proposed seawall there is a marina entrance which has been cut into the shoreline, dredged, and bulkheaded. At one point during the construction of the bulkhead that runs along the shore the contractor veered off course a small amount and hit the remaining portion of the old seawall in that area. The old seawall was stable enough that pilings could not be driven and so the pilings, planks and cables of the old seawall were removed. In order to dredge and clear the entrance to the marina it was also necessary to remove the old seawall located in the entrance area. The various experts called by Petitioner and Respondent gave different definitions of a seawall. John R. Guttman, an expert in civil and coastal engineering, marina planning and seawall construction, testified that the purpose of a seawall is to retain fill and that a "functioning seawall" did not have to be visible above water. Dr. Jacobus Van De Kreeke, an expert and Ph.D. in coastal and oceanographic engineering, testified that the function of a seawall is to retain lands, to prevent land from sliding into the ocean, and to protect, uplands from wave action. Dr. Van De Kreeke based his definition primarily upon the Shore Protection Manual of the Army Corps of Engineers and opined that the structure along the drop-off line in the area of the proposed seawall is still a functioning seawall. Mr. Walesky, who is an expert in marine ecology, testified that a seawall functions to separate the land from the sea. Jeremy Craft, an expert in water quality and marine ecology, argued with the definition of a seawall given by Mr. Walesky. Mr. Walesky and Mr. Craft are employees of the Respondent, DER, and Mr. Guttman and Dr. Van De Kreeke testified on behalf of Petitioner. The term "seawall" is not defined in the DER rules or in the Florida Statutes. Up to some point in time in the past there was a complete and functioning seawall along the shore involved in this application. The subsurface portion of that seawall remains to date and continues to perform the function of that portion of a seawall which lies below the surface and in the soil. The shoreline involved, at one time bad 8 to 10 white mangroves growing in and among the Australian pines which grew along the shore in the same area. The mangroves were in a line no more than one plant deep. Prior to Mr. Walesky's second inspection these mangroves were apparently pulled out by dredge pipes which had been anchored to them by someone other than Petitioner. It is likely that without the Australian pines these mangroves would have been washed away. Of the three types of mangroves the white mangrove lives farther up- shore and is less susceptible to growing or becoming established in the inter- tidal zone. Red mangroves live out in the water, grow farther into the inter- tidal zone and are considered to be of higher value than white mangroves in a mangrove eco-system. A mangrove eco-system is beneficial to the environment. A few singular mangroves do not constitute a mangrove eco-system. Mangroves become established by seedlings becoming trapped along shore and taking root. In this area of the Fisher Island shoreline, the shore is constantly washed by swift currents and tidal and wave action. There are no extended periods of no motion because of the rapid turnover and change in direction of tides in this area. Some of the swiftest currents in the area of Norris Cut and Fisher Island occur directly along and adjacent to this shoreline. The result is that suspended materials such as mangrove seedlings have no opportunity to accumulate along the shoreline. These same factors also result in a very sparse rack line in this area. It is highly unlikely that this shoreline would support a mangrove fringe. In the fall of 1983 when Dr. Howard Teas, an expert marine biology, water quality, and coastal and mangrove ecology, inspected the area involved he found no mangrove seeds along the rack line on Fisher Island when they were present elsewhere in the area. Dr. Teas as well as Dr. John Steiger, opined that this high energy shoreline is not conducive to the establishment of a mangrove fringe and it is highly unlikely that a mangrove fringe will become established along this shore. Mr. Walesky in his inspection prior to the final hearing observed sesuvium grass along the shoreline and saw one red mangrove seedling which had become rooted in the sesuvium grass. Mr. Walesky agreed that this shoreline is a high velocity area, but opined that a number of years from now mangroves may begin to grow along this shoreline. Some grass beds do appear in the inter-tidal area which would be filled under this application. These grass beds cover about 3.8 to 4 per cent of the total area involved. These beds are sparse with very low density. Haladule and halophila are the grasses found along this shore. The numerous photographs and aerial photographs presented in evidence revealed no human activities or construction along this shoreline which could have prevented the establishment or growth of these grass beds in this area over the last three or four years. Both haladule and halophila can become established in one year. Brownish algae also appears along this shoreline and forms a thin felt-like mat in the areas where it appears. The water in this area is very turbid and there are no oyster or clam beds. The number and density of organisms along this shoreline are both very low. The area along this shoreline is one of poor productivity. Samples taken by Petitioners expert in the vicinity of this shoreline had a density of organisms approximately 1710 the absolute density of typical areas of Biscayne Bay. The soil along the shoreline involved is primarily sandy silt. This type of soil has some cohesiveness but not very much. Neither party in the Instant case did testing to determine the specific cohesive properties of the soil along Fisher Island and Norris Cut. The proposed seawall will begin at a point approximately 70 to 100 feet west of the marina entrance. Approximately 500 to 530 feet of the westernmost portion of the proposed seawall will be located beyond or outside of the boundary of the Biscayne Bay Aquatic Preserve. The seawall will be constructed of a slab and pile concrete system. This construction approach is an acceptable method of constructing a seawall in this area and is identical to the structure that was permitted by DER in 1979 for another area of shoreline of Fisher Island. There is a cap along the top of the proposed seawall which will prevent stormwater runoff from the island into the adjacent waters of Norris Cut.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation enter a final order granting the exemption of Petitioner's seawall as requested. DONE and ENTERED this 9th day July, 1984. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 9th day of July, 1984. COPIES FURNISHED: Timothy A. Smith, Esquire 1401 Brickell Avenue, PH-1 Miami, Florida 33131 Gary Early, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 =================================================================
Findings Of Fact The Petitioner, Millender and Son Fish Company is a wholesale seafood business, with its principle place of business located on the banks of the Carrabelle River in Carrabelle, Franklin County, Florida. The business is owned and operated by Farris G. Millender. Mr. Millender owns the real property on which the business is located and that property is bordered on the north by Avenue "A", also known as State Road 10 which is the main street of the City of Carrabelle. The property is bordered on the southerly margin by the mean high water line of the Carrabelle River. Prior to September 2, 1985, there existed several wooden docks which ran lengthwise along the margin of the Carrabelle River on the waterward boundaries of the Petitioner's property. In the fall of 1985, the Carrabelle area was struck by two hurricanes: the first occurred on September 2, 1985, and the second in November, 1985. These two hurricanes together severely damaged the wooden docks, as well as Petitioner's buildings. In March, 1985, the Petitioner had hired Edwin G. Brown, a registered surveyor, to survey his property. The survey was completed on March 18, 1985, and showed a line along the Carrabelle River identified as "approximate MHW line" (mean high water). The surveyor stated that this line represented the shoreline of Petitioner's property at the time the survey was done. Employees of the Department of Natural Resources verified each end of the Brown survey as being an accurate location of the line of mean high water. That survey also depicted the location of the Petitioner's docks and pilings which were later damaged by the storms. The approximate mean high water line lay landward of the location of Petitioner's existing docks and pilings. The survey also depicted a small concrete bulkhead along part of the boundary line designated as "approximate MHW line" on that survey. On September 10, 1985, after the first of the two hurricanes struck, the Petitioner applied for a city building permit from the City of Carrabelle seeking to construct a seawall at the line of mean high water along that part of his property fronting the Carrabelle River. That permit was granted on September 17, 1985. On September 25, 1985, after Hurricane Elena struck, an emergency permitting team comprised of representatives of the U.S. Army Corps of Engineers, the Florida Department of Environmental Regulation, and the Department of Natural Resources met with Farris G. Millender at his place of business and inspected the hurricane damage. Following that inspection, an emergency authorization permit (APL0029) was issued. That permit described the pre-existing condition of the property as a "functional off-loading seafood dock" and it authorized the Petitioner to rebuild the docks and piers to existing pre- disaster condition. That is, he was authorized to build the docks and piers to the same dimensions, consisting of a "6' x 300' pier, 20' x 45' pier, and 6'-10' x 800' pier and docks behind building." The members of the inspection team saw no evidence of any concrete bulkhead or seawall existing at or near the site of the Petitioner's damaged wooden docks. The Petitioner asked the team members if the permit authorization would allow the construction of a concrete seawall. He was told that the emergency authorization only permitted the building of wooden docks and structures as they had existed previously. He was told that the construction of a concrete seawall would have to be permitted through normal permit application procedures. The emergency permitting process was designed to allow property owners to rebuild structures damaged by the hurricane in the same configuration, as to size, type of material and intended purpose, as those structures which existed prior to the emergency situation caused by the hurricane. On October 11, 1985, Mr. Powell Rivers called Mr. Larry Taylor of the Department of Environmental Regulation and inquired, on Petitioner's behalf, concerning whether bulkheading and backfilling was authorized under the emergency permit. Mr. Taylor informed Mr. Rivers that the emergency permit only authorized repair of the structures as they existed prior to the storm disaster. Mr. Taylor informed him that any additional work or change in the pre-existing installations, such as bulkheading and backfilling, would require a permit which must be obtained through normal permit application procedures. The Petitioner, however, proceeded to construct a concrete bulkhead along the Carrabelle River adjacent to his property and backfilled dirt or soil behind the bulkhead for its entire length. The bulkhead was constructed between September, 1985 and February, 1986. It is approximately 505 feet long and lies 20 to 55 feet waterward of the March 18, 1985, "approximate MHW line" surveyed by Edwin Brown. The area below the mean high water line encompassed by the seawall or bulkhead and attendant fill material is 0.446 acres. In response to a report by the Florida Marine Patrol, representatives of the U.S. Army Corps of Engineers, the Department of environmental Regulation (DER) and the Respondent inspected Petitioner's property on January 24, 1986. The concrete seawall itself was then nearly complete, but the backfilling had not yet been done. The Petitioner was informed at this time that the structure was not authorized under the above-mentioned emergency permit and that state and federal formal permitting was necessary. The Respondent formally notified the Petitioner of the encroachment of the construction in question on state-owned lands, without consent, by letter dated January 28, 1986. The Respondent requested the Petitioner to take immediate action to comply with the Respondent's rules and applicable state law. The Petitioner responded to this notice by stating that his position was that the work was authorized by the emergency authorization issued on September 25, 1985. In this connection, the Petitioner originally testified that Susan Radford, an employee of the Respondent, signed a handwritten note on November 21, 1985, giving Petitioner permission to construct the concrete seawall and related backfilling, below mean high water. The Petitioner recanted that testimony, however, following testimony of Susan Radford, on rebuttal, to the effect that she had not met the Petitioner, had never visited the site and had never signed any form of consent for Petitioner to perform the work in question under the aegis of the emergency permit. Based upon the Petitioner's response to the notice of January 28, 1986, the Respondent conducted an investigation and confirmed that indeed, in its view, the construction was located on-state-owned lands and was not authorized by the emergency permit issued on September 25, 1985. Accordingly, on April 1, 1986, the Respondent notified the Petitioner, with a formal Notice of Violation, that his construction was in violation of Chapter 253 and Rule 16Q- 14.03(1) and (4), Florida Administrative Code. He was ordered to cease and desist any further construction and given 20 days to apply for an "after-the-fact lease" or else to remove all unauthorized materials placed waterward of the referenced mean high water line. The Petitioner thereafter filed a petition for administrative hearing. The materials Petitioner placed waterward of mean high water have not as yet been removed. The Petitioner at a later time, however, applied for an "after-the- fact lease." The Carrabelle River is formed by the confluence of the New River and the Crooked River in Franklin County, Florida. It flows south into St. George Island Sound on the Gulf of Mexico. The river has been variously referred to in times past as the Crooked River, the New River and the Carrabelle River. It is a tidally-influenced water body at the point in question. Its shoreline boundaries are determined at the elevation of mean high water. Historically, Carrabelle and the surrounding environs, including the Carrabelle River area, has been the site of Indian villages, timber harvesting operations and seafood harvesting and processing industries. The river was traveled by boat by a surveyor as early as the year 1806, as far as the source of the New River and Crooked River. In 1840, the river was used as the means of transport for a military expedition. In 1882, the settlement of Rio Carrabelle, now called Carrabelle, had been established and timber was being transported on the river by logbooms or rafts moved by steamboats. Although the mouth of the river was partially obstructed by an oyster bar and sand, the channel contained approximately 4 1/2 feet of water at low tide in 1827 and by 1895 was being travelled by lighters, mail packets, tugs, and other vessels drawing 3' to 5' of water, plying between Carrabelle and Dog Island Harbor. (See Respondent's Exhibits 1, 2 and 3 in evidence.) The existence, location and general size of the New River and Crooked River, and their connection with St. George Sound via the Carrabelle River, has been shown on an 1846 topographic map of the state, as well as on an 1855 survey for the Apalachicola Land Company. The Crooked River was declared navigable by the Florida legislature in 1852, and in 1889, in a Memorial to Congress, the legislature described the importance of the river and the commerce then being shipped from Carrabelle via the river and its mouth. The water immediately adjacent to the Petitioner's property was part of a tidal slough or lagoon running parallel to and slightly north of the main channel of the Carrabelle River, at least as early as 1913. The lagoon was closed from the river on the west end by an intervening strip of land, but opened on its east end into the main channel of the river near Petitioner's property. On the south side of the lagoon there existed a series of marshy islands which were inundated at high tide. The water depth in the slough ebbed and flowed with the tide, but the connection between the east end of the slough and the main river channel near Petitioner's property was always inundated, even at low tide. Since the early part of this century, through 1965, the slough was capable of floating logs and small boats, typically oyster and mullet skiffs, even at low tide. In 1943, when the Petitioner's father purchased the property in question, which the Petitioner now owns, a fish processing house and dock existed along the shore of the property. The Petitioner's father purchased the property for the purpose of operating a wholesale fish business and the Petitioner was able to transport mullet to and from the main channel of the river to the docks along the front of his property in a "mullet skiff," which is a small boat of shallow draft typically used by commercial fishermen in the area. By 1954, the width of the slough along the Petitioner's property had increased and the marsh islands separating it from the main body of Carrabelle River had become smaller. More docks had been constructed along the Petitioner's shoreline and the adjacent property farther up the slough. Boats were able to navigate and moor to these docks. Additionally, since at least as early as 1913 through the present time, the shoreline along the Petitioner's property has been covered and uncovered by the daily ebb and flow of the tides in the Carrabelle River and in the slough. Thus, from the early part of this century to the present time, the waters adjacent to the Petitioner's property have been susceptible to navigation by small boats and skiffs used commercially by oyster and mullet fishermen. In 1965, the U.S. Army Corps of Engineers deepened the main channel of the river and the waters near the Petitioner's property, enabling larger vessels to dock alongside Petitioner's property. The Petitioner and his witnesses testified to substantial erosion which has occurred along Petitioner's shoreline over the years, allegedly as a result of dredging activities of the Corps of Engineers. However, aerial photographs taken by the Department of Transportation in 1953, 1965 and 1977, during periods at or near mean high tide, show a shoreline location and configuration essentially the same as that existing when it was surveyed by Edwin Brown in March of 1985. The Petitioner's wooden pilings, which now form the waterward boundary of the new seawall, were part of a wooden dock which was located at the same place prior to the 1965 dredging activities by the Corps. It was used to dock and unload fishing boats prior to 1965.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED that a final order be entered by the Respondent, Department of Natural Resources, finding the Petitioner in violation of the authority cited next above and ordering such corrective action as is authorized by Chapter 253, Florida Statutes, and Chapter 18-14, Florida Administrative Code. DONE and ORDERED this 7th day of January, 1988, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1498 Petitioner's Proposed Findings of Fact: 1-7. Accepted. 8-9. Rejected as contrary to the preponderant weight of evidence and subordinate to the Hearing Officer's findings of fact on this subject matter. Petitioner's Proposed Findings of Fact on Historical Mean High Water: 1-3. Accepted. Accepted generally but subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as constituting a recitation of testimony, contrary to the preponderant weight of evidence and subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as constituting a recitation and dis- cussion of testimony. Rejected as constituting a discussion or recitation of testimony and not a finding of fact and is contrary to the Hearing Officer's findings on this subject matter and subordinate thereto. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected as contrary to the Hearing Officer's findings of fact on this subject matter. Accepted. Accepted, but not dispositive of any material issue presented and subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Rejected as contrary to the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact on this subject matter. Petitioner's Proposed Findings of Fact on the Issue of Estoppel: Accepted, but not dispositive of any material issue presented in itself. Accepted, but not dispositive in itself of any material issue presented. Accepted, but not dispositive of any material issue presented in itself. Respondent's Proposed Findings of Fact: 1-8. Accepted. 9. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. 10-14. Accepted. 15. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. 16-27. Accepted. COPIES FURNISHED: Eugene E. McClellan, Jr, Esquire Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399 J. Ben Watkins, Esquire WATKINS & RUSSELL 41 Commerce Street Apalachicola, Florida 32320 Tom Gardner Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Thomas G. Tomasello General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact On June 26, 1986, the Department of Environmental Regulation (DER) issued a permit, No. 661168901, to Elizabeth R. McSheehy authorizing construction on the shore of Choctawhatchee Bay of a seawall 165 feet long and eight feet high "faced with rip-rap . . . and backfilled with 18 cubic yards of sand fill . . . in accordance with [an] attached map and drawing." Joint Exhibit No. 1. The permit application had proposed that the seawall "TIE INTO MR. HEATH['S] SEAWALL," and the attached drawing indicated a point of beginning along the seawall already protecting the lot to the east, then owned by Mr. Heath, now owned by Prentice M. Thomas. The drawing has no compass rose and does not specify the angle of either leg of the permitted seawall. The construction permit expired December 30, 1987 (well beyond the 120 days within which the application indicated it would be necessary to complete construction, once begun.) At hearing, the parties stipulated that Ms. McSheehy had erected or caused to be erected a seawall at the location permitted on or before December 30, 1987. DER does not dispute that the seawall functioned as such when built. Seawall Fails Ms. McSheehy received a letter from Mr. Thomas dated June 6, 1990 (in an envelope postmarked June 22, 1990) stating, "I recently visited my lot at Four Mile Post and regret to inform you that the seawall you installed on your property has been demolished by the winter and spring storms." Petitioner's Exhibit No. 2. The letter reported that her "lot was eroding at a rapid pace." Id. Afraid that his own lot would be affected, despite its well-maintained seawall and rip-rap he had added, Mr. Thomas "beseech[ed her]. . . to take action to arrest the erosion of [he]r shoreline." Petitioner's Exhibit No. 2. The lot west of Ms. McSheehy's has no seawall. T. 48. Its shoreline had also eroded, judging from photographs in evidence. Soon after receiving the letter, Ms. McSheehy inspected the property for the first time since the summer before. She found the piles on which the seawall had been constructed in 1986 or 1987, now standing as far as 30 feet out in the bay. Only the eastern 20 or 30 feet of the seawall remained intact. Remnants, including individual boards and wall fragments comprised of as many as four boards had washed up on the receded shoreline. When DER's James Eric Buckelew happened on the site on July 26, 1990, he concluded from the erosion that the seawall had ceased to function as such some months before. Bay waters reached 20 or 30 feet further inland, covering about a tenth of an acre landward of what remained of the seawall. Mr. Buckelew took photographs of the site. Petitioner's Exhibit No. 1. Seawall Now in Bay Before the month ended and apparently before anybody from DER communicated with Ms. McSheehy, the seawall was rebuilt in its original location. No additional fill has been placed landward of the seawall, which now has water on both sides. In various trips to the site and otherwise in responding to this turn of events, DER has expended at least $245.37. DER advised Ms. McSheehy that a permit could be issued for construction of another seawall along what seems to be the new mean high water line, but that she had acted illegally in having the seawall restored at a location now some 20 or 30 feet out in the Bay. (T. 115). After first applying for and receiving a permit to remove the existing seawall and construct a new one further landward, she took the position that restoration of the original seawall had been lawful, and these proceedings ensued.
Recommendation It is, accordingly, RECOMMENDED: That DER make final its proposed orders for corrective action, unless within a reasonable time DNR conveys or leases to respondent the property lying between the seawall and the mean high water line. DONE AND ENTERED this 24th day of February, 1993, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1993. APPENDIX TO RECOMMENDED ORDER CASE NO. 91-7281 Petitioner's proposed findings of fact numbers 2, 3, 5, 6 and 12 have been adopted, in substance, insofar as material. With regard to petitioner's proposed finding of fact number 1, the permit issued in 1986, but it is not clear that construction was accomplished in 1986. With regard to petitioner's proposed finding of fact number 4, the seawall failed sometime between the summer of 1989 and the spring of 1990. With regard to petitioner's proposed findings of fact numbers 7, 8, 9, 10 and 11, use of the word "unauthorized" renders these proposed conclusions of law. Respondent's "proposal for the ruling of the hearing officer" did not contain separately numbered proposed findings of fact. COPIES FURNISHED TO: Virginia B. Wetherell, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Richard L. Windsor, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Elizabeth R. McSheehy 516 Mooney Road Fort Walton Beach, Florida 32547
Findings Of Fact Willie Brewton owns a single family home on a lot approximately 200 feet by 600 feet bounded on the front (south) by Brewton Court and on the west by Lakeshore Lane. Across from Lakeshore Lane a new development is underway and traffic on Lakeshore Lane is increasing. Appellant's variance request involves increasing the solid fence along Lakeshore Lane in the vicinity of his entrance drive to 6 feet to provide more protection from noise and automobile headlights. This property is zoned RS-100. This code allows for a four-foot fence along the side of the residence and a 30-inch fence in front of the residence. Accordingly, the maximum allowed height of fence on Appellant's property is four feet along Lakeshore Lane. No evidence was presented that similar variances have been granted to other properties in the same district or that special conditions and circumstances exist which are peculiar to Appellant's property which are not applicable to other lands in the same district.
The Issue The issue in this case is whether the DER should exempt the stormwater discharge anticipated from the initial phase of a residential development proposed by Sam Rodgers from the licensing requirements laid down by Rule 17- 4.248, Florida Administrative Code.
Findings Of Fact Sam Rodgers (applicant) proposes to alter an existing stormwater conveyance system in connection with transforming part of an orange grove in Polk County into a residential development, Foxwood Lake Estates. If all goes according to plan, the development will eventually occupy all or parts of four distinct basins. The applicant's agents furnished DER data pertaining to all four basins. The only discharge at issue in these proceedings, however, is the stormwater expected to drain from Basin III. See DER Exhibit No. 1, Master Plan-Key Map. Phase I of the development, a trailer park, would lie completely within the 123-acre expanse of Basin III, but would not completely displace the citrus trees. According to the applicant, roofs, streets, parking lots and other impervious surfaces will comprise some two-fifths of the area, when developed. DER Exhibit No. 1. Construction activity increases suspended solids in stormwater draining from construction sites. Lesser but still elevated levels of suspended solids can be expected when people take up residence. Heavy metals from automobile exhaust will end up in stormwater draining from Basin III, if some of the people moving in bring cars. Residential development also increases the biochemical oxygen demand of stormwater washing over it. The applicant proposes sodded roadside swales of varying slope to collect stormwater and, together with occasional pipes under roads, to convey it to an existing pond (Foxwood Lake), which is to be enlarged to an area of 4.82 acres. Foxwood Lake would be 12 feet deep in places. Testimony that the swales and pond would fill with silt in two or three years has not been credited, although it may not take centuries, as another expert testified. The swales will require maintenance and the applicant plans to hire somebody for that purpose. The applicant also contemplates dedicating some road rights-of-way, including swales, to Polk County. Lake Foxwood's present surface elevation of 160.58 feet above mean sea level would remain virtually unchanged, during times of moderate rainfall, at 161 feet above mean sea level. Neither groundwater tables nor the soil's storage capacity would be perceptibly altered, even during periods when the lake was temporarily elevated by the control structure planned for it. The applicant has agreed to a design that would detain on his property a volume of water equal to one inch of rainfall over the whole of Basin III for five to seven days. At the western end of Foxwood Lake, a PVC overflow pipe with a diameter of six inches would be installed in a concrete outfall structure at an elevation of 161 feet above mean sea level. At 164.55 feet above mean sea level, a vertical V-notch in the weir would allow water to spill out of Foxwood Lake, if stormwater should raise the lake's surface to that elevation. Both the overflow pipe and the V-notch would empty through a pipe 36 inches across into an intermittent tributary to Blackwater Creek, which the parties stipulated to be Class III waters. The stream into which water leaving Foxwood Lake would flow meanders west to Martin Lake, about a mile away. James M. Pollock, Jr., owns property on the western edge of Martin Lake and farms land on the lake's edge. Mr. Forrest Sawyer of 1712 Gibsonia-Galloway Road owns land to the north of Mr. Rodgers' property. Mr. Sawyer's property is generally higher ground than the Rodgers property, although three or four acres of the Sawyer property lie in a low area into which drain water from the Rodgers property as well as water from elsewhere on the Sawyer property. No water drains onto the Sawyer property from Basin III, however. Charles C. Krug, his sister, and his brother together own 40 acres abutting the west side of the northwest 40 acres of the Rodgers property. A dike along the southern boundary of the Krug property prevents water entering from the south. No water has drained onto the Krug property from the Rodgers property in the last 45 years. Dorothy Thompson lives 300 or 400 feet east of Orange Avenue which is the eastern boundary of the Rodgers property. There is a small area east of Orange Avenue in Basin III which drains west through three culverts onto the Rodgers property. The Thompson home property evidently drains to the east; however, only since the widening of U.S. Highway 98, which runs north and south to the east of Mrs. Thompson's property have heavy rains resulted in flooding on her property. The applicant gave DER notice of the changes in stormwater discharge proposed for Basin III. Water discharged from the system the applicant proposes would meet the criteria for Class III waters, according to the uncontroverted evidence. Virtually all pollutants except colloidal solids should precipitate or be filtered out by the time water leaves Foxwood Lake for waters of the state. Respondent's witness' suggestion that the swales be paved to decrease the siltation overlooks the filtration and percolation grassy swales make possible. At one time DER required that developers design stormwater systems to detain, instead of a one-inch storm, the mean annual storm, for five to seven days. The applicant's system is designed to avoid any increase in the present rate of discharge under weather conditions up to and including a 100 year 24-hour storm.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That DER grant Sam Rodgers' application for exemption from stormwater discharge licensure for Phase I of the proposed Foxwood Lake Estates. DONE AND ENTERED this 8th day of December, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 Telephone: (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1980 COPIES FURNISHED: Andrew Reilly, Esquire Post Office Box 2039 Haines City, Florida 33844 Walter R. Mattson, Esquire 1240 East Lime Street Lakeland, Florida 33801 David Levin, Esquire 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Respondent Felo McAllister and his wife Dorothy own a home and dock on Texar Bayou off Escambia Bay in Pensacola, Florida. A storm sewer with a diameter of 15 to 18 inches empties into the Bayou near the dock. The silt- laden outflow from the storm sewer has resulted in a sand bar or berm two or three feet wide paralleling the shoreline from the McAllisters' property line to the dock. This sand bar separates a ditch caused by the outflow from Texar Bayou. Over the years, silt has accumulated underneath the dock. The McAllisters originally applied for a permit to dredge boat slips at the dock. Andrew Feinstein, an environmental specialist II in respondent Department's employ, evaluated the original application and recommended denial, because he felt extending the dock was preferable to dredging. The McAllisters then modified their application so as to seek a permit for dredging at the mouth of the storm sewer in order that the silt already deposited there would not wash underneath the dock. Mr. Feinstein and Michael Clark Applegate, an environmental specialist III and dredge and field supervisor employed by the Department, testified without contradiction that the Department has reasonable assurances that the proposed project will not violate any applicable rules. The permit DER proposes to issue contemplates that the berm will not be breached. The bottom on which the dredging is proposed to take place belongs to the City of Pensacola. Although under water, it is a part of a dedicated roadway. The City itself does maintenance dredging to ensure the efficiency of storm sewers, but is glad for assistance from private citizens in this regard. J. Felix, City Engineer for Pensacola, is authorized allow dredging on this road right of way, and has done so. See also respondent's exhibit No. 2. The site proposed for placement of the spoil is a low area affected by flooding. Fill there would affect drainage onto neighbors' property.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent DER issue respondent McAllister the permit it proposed to issue in its letter of September 14, 1979, upon condition that the spoil be placed at least 100 feet from the water's edge. DONE and ENTERED this 12th day of February, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: William L. Hyde, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. Larry Jay Sauls and Ms. Harriett Tinsley Sauls 14 West Jordan Street Pensacola, Florida 32501 Felo McAllister 2706 Blackshear Pensacola, Florida 32503
