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
The Issue The issue in this case is whether Respondents Paul Crum, Sr., and Paul Crum, Jr. (the "Crums"), are entitled to the Noticed General Permit issued by the Department of Environmental Protection ("Department") for the construction of a single- family residential dock and associated structures.
Findings Of Fact Background The Crums are the owners of the riparian property located at 15696 Shark Road West, Jacksonville, Florida. The Crum property is adjacent to Pumpkin Hill Creek, which lies within the Nassau River-St. Johns River Marshes Aquatic Preserve. Extending from the Crum property into Pumpkin Hill Creek is an existing wood dock approximately 90 feet long and four feet wide, with a platform near the landward end of the dock. Petitioner Brooks owns the property immediately adjacent to and north of the Crum property. Petitioner Brooks has a dock and boat lift. Petitioner Cole owns the property immediately adjacent to and southeast of the Crum property. The Cole property is located on a salt marsh and has no dock. Petitioner Jones lives approximately 3,200 feet north of the Crum property, on a tributary to Pumpkin Hill Creek. Petitioner Jones has fished Pumpkin Hill Creek and the surrounding waters for over 25 years. Noticed General Permits are a type of environmental resource permit granted by rule for those activities which have been determined to have minimal impacts to water resources. Florida Administrative Code Rule 62-341.427 grants by rule a general permit to construct a single family pier, along with boat lifts and terminal platforms, provided certain specific criteria are met. In August 2005, the Crums applied for a Noticed General Permit to extend their existing dock into deeper water. The Department issued a Notice of Determination of Qualification for Noticed General Permit, but later rescinded the authorization after Petitioner Brooks complained to the Department that the landward end of the existing dock is located only 21 feet from her property boundary and, therefore, did not comply with Florida Administrative Code Rule 18-21.004(3)(d), which requires that a dock be set back a minimum of 25 feet "inside the applicant's riparian rights lines." In November 2005, the Crums re-applied for a Noticed General Permit. Their revised plans called for removal of the existing dock and construction of a new dock extending approximately 255 feet out into Pumpkin Hill Creek. The proposed dock would be located a minimum of 25 feet inside the Crums' riparian rights lines. On December 6, 2005, the Department issued a Notice of Determination of Qualification for a Noticed General Permit for the revised dock, stating that the project satisfied the requirements of Florida Administrative Code Rule 62-341.427, as well as the conditions for authorization to perform activities on state-owned submerged lands set forth in Florida Administrative Code Rule 18-21 and for activities in an aquatic preserve under Florida Administrative Code Rule 18-20. In April 2006, Petitioners filed three petitions for hearing with the Department alleging that the proposed dock significantly impedes navigation by restricting access to a tidal creek and extends more waterward than necessary to access a water depth of (minus) -4 feet at mean low water, which is prohibited for docks in aquatic preserves under Florida Administrative Code Rule 18-20.005(3)(b)3. Petitioners attached to their petitions a copy of a bathymetric survey showing the elevations of the submerged lands in the vicinity of the proposed project. In response to the information contained in the survey, the Crums revised their plans to shorten the dock to its currently proposed length of 186.56 feet. A new Notice of Determination of Qualification for a Notice General Permit was then issued by the Department on October 16, 2006. The final dock project consists of: (a) removal of the existing wood dock; (b) construction of a four-foot wide, 186.56-foot long, single family residential dock consisting of an access pier, a 12-foot by 12-foot terminal platform, and a 14-foot by 20-foot open boat lift with catwalk (the “proposed dock”). The proposed dock will terminate where the water will be four feet deep at mean low water. Navigating in and Near the Tidal Creek To the south of the Crum property is a wide expanse of salt marsh. Within the salt marsh are unnamed tidal creeks. The mouth of one tidal creek that flows to Pumpkin Hill Creek is located approximately 90 feet south of the existing Crum dock. The tidal creek is shallow and is not navigable at or near low tide. Petitioner Jones owns an 18-foot flatboat which he sometimes keeps at his residence and sometimes at Petitioner Brooks' property. The boat draws about one foot of water. Petitioner Jones uses this boat to fish in the tidal creek located near the Crum property about ten times every month. No evidence was presented to show that Petitioner Brooks or Petitioner Cole ever navigate in or otherwise use this tidal creek. There are many other tidal creeks located in the marshes associated with Pumpkin Hill Creek. Petitioner Jones boats and fishes in most of them. Petitioner Jones said that, currently, he must wait two hours past low tide for the water depth to be sufficient for him to get into the tidal creek near the Crum property. His usual course to the creek lies just beyond the end of the existing Crum dock. He claims there is a channel there, but no channel is shown on the survey or in any of the parties' photographs. After the proposed dock is constructed, Petitioner Jones' usual course to the tidal will be obstructed. He contends that the new course he would have to take to the tidal creek will take him across shallower areas of Pumpkin Hill Creek so that he will have to wait two more hours (a total of four hours) after low tide to get into the creek. Therefore, Petitioner Jones' alleged injury is the reduction of the hours available to him to navigate in and out of the tidal creek for fishing. The existing Crum dock terminates on a broad mud flat which is exposed at mean low water. However, the bathymetric survey shows the mud flat is at a lower elevation near the end of the dock so water covers this area before it covers the rest of the mud flat. However, the bathymetric survey also shows the elevation of the bottom rising as one moves south from the existing dock. At the mouth of the tidal creek the elevation is 1.0 feet NGVD (National Geodetic Vertical Datum, an official, surveyed reference point). Because the tidal creek drains into the main body of Pumpkin Hill Creek, a reasonable inference can be made that the bottom elevations in the creek generally become higher (and the water depths decrease) as one moves up the creek toward dry land. Prop scars in the exposed bottom at the end of the existing dock indicate that boats have traveled over this area when the water was so shallow that the engine props were striking the bottom. Prop scarring can cause turbidity and damage to benthic organisms. The bathymetric survey indicates that mean high water in this area of Pumpkin Hill Creek is 3.03 feet NGVD, and the mean low water is -1.78 feet NGVD. The mean tidal fluctuation between mean low water and mean high water is thus 4.81 feet. Randall Armstrong, who was accepted as an expert in navigation and piloting, explained that in this area, where there are two daily tides, the water elevation will generally increase by 1/12 of the mean tidal fluctuation in the first hour after mean low water, another 2/12 of the fluctuation in the second, and 3/12 in the third hour. Applying this general rule to the tidal fluctuation here of 4.81 feet results in an estimated 1.2-foot increase in water elevation two hours after low tide and a 2.4-foot increase three hours after low tide. Based on the mean low water elevation of -1.78 feet NGVD, the water elevation would usually be about -0.6 foot NGVD two hours after low tide and 0.6 foot NGVD three hours after low tide. Therefore, the tidal creek (with a bottom elevation of 1.0 foot NGVD at the mouth) would usually be "dry" two hours after low tide and would usually have less than a foot of water three hours after low tide. That evidence contradicts Petitioner Jones' statement that he now navigates into the tidal creek two hours after low tide. That might occasionally be possible, but the bathymetric survey indicates the creek would usually be too shallow at that time. In fact, the evidence suggests that the tidal creek is only reliably navigable without causing prop scars to the bottom by using boats with very shallow draft and waiting until high tide (or shortly before or after) when the water depth at the mouth of the creek would be about two feet. It was Mr. Armstrong's opinion that the 1.0-foot NGVD elevation at the mouth of the tidal creek determines when and how long the tidal creek is navigable, and those times would not be affected by the proposed dock. He described the new course that a boater would use to navigate into the tidal creek after the proposed dock is built. He used the bathymetric survey to show that when the water is deep enough to navigate into the tidal creek, the water depth is also sufficient to navigate the new course. The proposed dock might, as Petitioner Jones alleges, cause boaters to traverse a longer section of the mudflat then they do currently. However, the more persuasive testimony supports the Crums' position that the navigability of the tidal creek is controlled by its shallowest point at the 1.0-foot NGVD elevation and that the proposed dock will not interfere with navigation of the tidal creek by requiring boaters to traverse shallower areas. Petitioner Jones testified that he regularly navigates his boat close to the existing Crum dock. The evidence does not indicate that the proposed dock would cause an unreasonable risk of collision for boaters using the new course to the tidal creek.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Secretary of the Florida Department of Environmental Protection enter a final order that grants Noticed General Permit No. 16-253057-002-EG to the Crums. DONE AND ENTERED this 22nd day of December, 2006, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2006.
Findings Of Fact Petitioner, J. C. Grantham, Perry, Florida, purchased real property in Taylor County adjacent to Spring Warrior Creek in 1975. At that time, a frame house and "fish house" were situated on the property. The general area where the property is located consists of a small community development located in a salt marsh area adjacent to the creek. In the past, fill roads were constructed through the tidal marsh to gain waterfront access to Spring Warrior Creek. At the waterward end of these fill roads, fill pads were placed for residential structures. (Testimony of Petitioner, Tyler, Composite Exhibit 1, Exhibit 3) At the time Petitioner purchased the property, there was existing riprap along the creek and limestone fill had been placed landward over a portion of the property on both sides of the access road. The property south of the road is owned by Petitioner's brother. In 1978, the existing house on Petitioner's property burned down and he thereafter dumped trash and 4 or 5 loads of fill at the site of the former house and covered it. The result was approximately 360 cubic yards of fill material which was used to raise the elevation of the tidal marsh area by 3 feet and covered an area of approximately 3,220 square feet. He used this fill pad as support for a 12' x 60' mobile home. (Testimony of Petitioner, Exhibits 1-3) Petitioner filed a joint application with Respondent and the Corps of Engineers on April 29, 1981 for an "after-the-fact" permit for the fill which he had previously placed on his property. The application was reviewed by Respondent's personnel in the Jacksonville subdistrict after on-site inspections. In addition, Respondent solicited and received comments on the application from the Four Rivers Audubon Society, Suwannee River Water Management District, the United States Department of Interior Fish and wildlife Service, the U.S. Environmental Protection Agency, Region 4, and the U.S. Department of Commerce National Marine Fishery Service, in opposition to issuance of the permit. The Department of Natural Resources expressed no objection to the project. On July 31, 1981, Respondent issued its notice of intent to deny the application for the reason that the proposed fill would result in the loss of 3,220 square feet of tidal marsh, and that the fill area would result in water quality degradation of Class III waters in various respects, and that the applicant had not provided Respondent with affirmative reasonable assurance, pursuant to Subsection 17-4.28(3), Florida Administrative Code, that the immediate and long term impacts of the project would not result in the violation of State water quality standards. Thereafter, on September 14, 1981, a "Final Order Denying Application for a Permit" was issued by Respondent, but was made contingent upon the applicant's right to petition for an administrative hearing. A petition for hearing was filed by Petitioner on September 28, 1981. (Testimony of Tyler, Composite Exhibits 1-2) The area where the fill was placed was a black needle rush marsh with smooth marsh cordgrass scattered along higher elevations, together with marsh elder and salt grass. The dominant species is black needle rush, a species of vegetation which is used as a guide in the establishment of the landward extent of waters of the State, pursuant to Respondent's Rules 17-4.02(17) and 17- 4.28(2), Florida Administrative Code. The marsh is a highly productive ecosystem which functions as a nutrient and pollutant trap. The shallow estuarine ecosystem located near Spring Warrior Creek serves as a nursery and feeding ground for small fish and crustaceans. Plant life does well in the estuary waters and periodically enters the food web in the form of detritus. Shoreline vegetation is valuable in stabilization of the soil, and restraining flood tides. Elimination of marsh area adversely impacts upon its functions of nutrient uptake and recycling, and loss of fish and wildlife habitat. Placement of fill in such an area is therefore associated with degradation of water quality with respect to an increase in BOD and lowered concentrations of dissolved oxygen. (Testimony of Tyler, Scott, Composite Exhibit 1, 3) Respondent would have no objection to placement of Petitioner's mobile home on the old fill area toward the creek, but Petitioner would then have possible problems regarding county requirements as to the placement and utilization of an existing septic tank. If Petitioner removed the existing fill which serves as a pad for his present mobile home and restored the area, Petitioner would have no objection to the erection of a "stilt" building on the property. (Testimony of Petitioner, Scott, Composite Exhibit 2)
Recommendation That Petitioner, J. C. Grantham's application for a permit under Chapter 403, Florida Statutes, be denied. DONE and ENTERED this 28 day of January, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM 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 28 day of January, 1982. COPIES FURNISHED: Isadore F. Rommes, Jr., Esquire 216 First Federal Building 115 West Green Street Perry, Florida 32347 Richard P. Lee, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Honorable Victoria Tschinkel Secretary, Department of Environmental Regulation Twin Towers - 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Jack E. Moore is the owner of real property in Fort Myers Beach known as Lot 9 of Indian Bayou, a subdivision in Section 33, Township 46 South, Range 24 East, Lee County, Florida. Moore's property is bordered on the north by the waters of Indian Bayou and Estero Bay. The northern portions of Moore's property are vegetated by juvenile and mature red and black mangroves. Red and black mangrove are the dominant species of vegetation on the northernmost portions of the property, waterward of the fill pad on which Moore's house is built. Sometimes during July, 1982, Moore used a shovel to excavate a channel from the open waters of Estero Bay to a dock existing at the edge of the fill pad. Approximately 48 cubic yards of excavated material was piled up along the banks of the channel. The channel measured approximately 1.5 feet deep (at low tide) by 9 feet wide by 70 feet long. The channel was dug so that Moore could got his boat in and out from the dock at medium tide. The passage to the deck was already possible at high tide, as Moore had a shallow draft pontoon boat. In July, 1981, Moore constructed a rip-rap revetment with backfill the northern side of his house fill pad. The back fill area contains approximately 160 cubic yards of fill, and is approximately 10 feet wide by 110 feet long. Red mangrove and black mangrove are and were the dominant vegetational species in the area where the channel was dug, where the excavated material was placed, and where the revetment and fill was constructed. The area of dominant mangrove vegetation extends from the work areas to the open waters of Estero Bay. Moore did not apply for or receive a permit from DER prior to undertaking the work referenced above. Upon discovery of the work in September, 1982, DER notified Moore that a permit was needed for the excavation and filling he conducted. In October, 1982, Moore agreed to fill in the channel and remove all unauthorized fill by January 19, 1983. Inspection by DER on January 26, 1983, showed that restoration had not been started, and in fact more work had been done on the channel. DER issued a Notice of Violation and Orders for Corrective Action (NOV) to Respondent on March 29, 1003, alleging violations of Chapter 403, Florida Statute's, and DER rules and requiring restoration of the areas dredged and filled. Upon service of the Notice of Violation by the Sheriff, Respondent petitioned for this hearing. DER incurred costs of 5101.88 in investigating the violations alleged in the NOV. As of the date of the hearing, restoration work still had not been performed. Although the spoil piles alongside the channel are now diminished, the channel itself was deep as it previously had been and the rip-rap revetment and backfill had not been removed.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner David M. Antoniak is the owner of property located at 1211 Hardman Drive in Orlando, Florida. The property fronts on a cove of Lake Lancaster and is adjacent to a stormwater drainage pipe operated by Orange County. When petitioner purchased the property in approximately February of 1978, the general waterfront around his property, as described by petitioner and other neighboring landowners, was filled with weeds which were decaying, trash and other debris, bad odors and bugs. Petitioner attempted to clean up the waterfront area, but was unsuccessful. In August of 1978, petitioner undertook the project which is presently in dispute. He removed approximately two truckloads of muck, weeds and debris from the water and the water's edge, placed a cypress log retaining wall between his property and the waters of Lake Lancaster, placed approximately one truckload of beach sand between the wall and the water, deposited an undetermined amount of fill material landward of the wall and put sod on the soil landward of the wall. Petitioner constructed the cypress log retaining wall in order to level out his lot, prevent runoff to the lake and to separate the dirt from the sand. He continues to fertilize his lawn and to spray it for bugs. The only portion of the retaining wall and property waterward of the natural ordinary high water line of Lake Lancaster is an area approximating eight by four feet. In March of 1979, petitioner applied to the DER for after-the-fact approval of construction of the retaining wall waterward of the ordinary high water line of the lake and the filling. After a field evaluation, DER gave notice of its intent to deny a permit. Lake Lancaster is a Class III body of water. The lake receives outfall from approximately twelve stormwater drainage pipes, one of which is located adjacent to petitioner's property. Aquatic plants and weeds are especially beneficial near such outfalls because they serve to assimilate and eliminate nutrients, stabilize sediments, and filter out suspended materials. Such vegetation also provides a habitat for fish. Although the area in dispute is small, removal of the aquatic vegetation significantly degrades the water quality of Lake Lancaster because of the area's location in a cove and the adjacent stormwater drainage pipe. The placement of the cypress log retaining wall will cause hydrological changes in the nature of increased turbidity due to wave action. Vertical walls may also lead to erosion. While the seawall will serve to reduce the initial flush of run off (of grass clippings, for example), fertilizers and bug sprays used on adjacent upland property will still percolate into the soil and eventually run off to the lake. The backfilling in the 8 by 4 foot space waterward of the ordinary high water level reduces the size of the lake and could possibly relate to flooding problems.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is recommended that the petitioner's application for a permit be DENIED. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 9th day of October, 1980. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1980. COPIES FURNISHED: William A. Harmening Stanley, Harmening and Lovett Post Office Box 1706 Orlando, Florida 32802 Charles G. Stephens Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 David M. Antoniak 1121 Hardman Drive Orlando, Florida 32806 Jake Varn, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue This proceeding concerns a Consent Order entered into by the Department of Environmental regulation (DER), and James and Patricia Gratzer (Gratzers) regarding an allegedly unpermitted fill in Winter Springs, Florida. The ultimate issue for determination is whether DER abused its discretion in resolving the alleged violations by entering into the subject Consent Order.
Findings Of Fact In the fall of 1990, the Gratzers purchased a 4.35 acre lot located at 216 Stoner Road in Winter Springs, Florida. At the time of purchase, the Gratzers planned to divide the lot and build a residence on the two acre parcel. In preparation for construction of their new home, the Gratzers approached the Winter Springs City Council to subdivide the property and to approve of use of the fill road as ingress and egress for both lots. In February of 1991, the Gratzers and their builder obtained the proper building permits from the County and septic tank permits from the Department of Health and Rehabilitative Services. Construction began on the residence on April 9, 1992 when the Gratzers' builder brought in several trucks of dirt to the end of the existing fill road to begin the house pad. At the time the Gratzers began construction on the subject lot, they had no idea or reason to believe that they were about to build in jurisdictional wetlands of the State of Florida. On approximately April 14, 1992, the Gratzers were first made aware that they may have problems with potential wetlands on the property when an officer of the Game and Fresh Water Fish Commission visiting the site instructed the builders to halt construction, pending a review by DER. As a result of the site visit, the Gratzers investigated further with DER employees the potential wetlands on their property. They also sought the advice of an attorney and his environmental consultant regarding possible ways to solve DER's concerns. On approximately April 26, 1991, an employee of DER visited the site and made an initial determination that the property was a jurisdictional wetland subject to permitting by DER. Under present rules the Gratzer property, with exception of the filled access road, would all be in DER jurisdictional wetlands if only the natural vegetation were considered. Upon being informed of DER's initial determination, the Gratzers hired an engineer from Boyer-Singleton & Associates to make an engineering determination as to the extent of jurisdictional wetlands based upon a ten-year backstop. A ten-year backstop is a method provided by statute to determine the ultimate landward extent of DER's vegetational jurisdictional line. It is a hydrological calculation to determine water elevation levels in a certain area, subject to the ten-year recurrent storm event. By rule and statute, DER's jurisdiction over wetlands effectively stops at the upper end or limit of the ten-year flood elevation line. Claude Cassagnol, of Boyer-Singleton and Associates, an expert in hydrology, reviewed available materials, visited the site and made an initial determination of the ten-year backstop on the Gratzers' property, and ultimately mapped out his conclusions on a plat. Mr. Cassagnol's hydrological study, and his review of Federal Emergency Management Agency (FEMA) materials, led him to conclude that the ten-year backstop would leave the Gratzer's house pad out of any DER jurisdictional wetlands. As a result of his study, Cassagnol forwarded several letters to George Baragona of DER requesting that Mr. Baragona, an expert hydrologist, review his determination and ratify his conclusions. The Gratzers, on advice of counsel, allowed their building contractor to complete compaction of the house pad and begin preparations to pour the house floor. The septic tank contractor for the Gratzers completed installation of the tank and drain field prior to July 1st. After the Gratzers had recommenced construction, on approximately July 10, 1992, DER, issued a Notice of Violation (NOV) which ultimately formed the basis for the Consent Order in this case. The Gratzers immediately ceased further construction on the property and sought further negotiations with DER. Shortly after the NOV was issued, George Baragona reviewed the information, studies and plats submitted by Mr. Cassagnol regarding the ten-year backstop. Baragona made a determination of the ten-year backstop at a point more landward than Cassagnol's. It appears from the plat submitted at hearing, that Baragona's ten- year backstop line runs along the base of the fill roadway; his testimony, however, indicated that his backstop line dipped in and out near the roadway, and he simply chose the baseline of the fill road as his "worst case scenario". Baragona, because of the house pad, was required to extrapolate a line through the house pad, resulting in approximately half of the house pad area being in jurisdictional wetlands. The result of further negotiations between the parties was the Consent Order which is the subject matter of this proceeding. As settlement, the Gratzers agreed to Baragona's "worst case scenario" ten-year backstop, placing approximately half of the house pad was in DER jurisdictional wetlands. As part of the settlement, the Gratzers agreed to, and have paid, a fine of $1,400.00 to DER and have granted a conservation easement over a large portion of the remainder of their property, resulting in an 11.6 to 1 ratio of conservation easement to impacted wetlands, slightly above DER's guideline 10 to 1 ratio. In investigating the alleged violations at the subject property, DER reviewed the cumulative impacts of the project and determined that they were not great, in light of the surrounding area and its already high level of development. In making this determination, DER reviewed property lists, maps and other facts to determine the level of current development. In reviewing the alleged violations, DER also considered whether or not this project would have been able to get a permit had the Gratzers sought a permit prior to any construction. It was DER's determination that the project would have been permittable under the criteria in Chapter 403, in conjunction with the mitigation offered at the site. Finally, in its review and study of the alleged violations, DER determined there was no evidence that this project would have any adverse impact on water quality. DER made a determination that this was a "low to medium" violation, and that the impacts were properly addressed through the Consent Order which imposed the $1,400.00 fine and secured the conservation easement. Fill Road Issue A small road or driveway existed on the site at the time the Gratzers purchased the property, extending from Stoner Road from the south, to the center of their property. Although Baragona indicated the DER modelled backstop line did not always extend to the driveway, he said it sometimes appeared to "bump up" to the eastern edge of the driveway. Baragona could not say with absolute certainty where the 10 year backstop would be on the east side of the site if the driveway were not present. The type of wetland vegetation on the Gratzer property would be considered jurisdictional wetland vegetation under rules adopted pursuant to the 1984 Warren F. Henderson Wetlands Act (Section 403.91, et seq.), but would not be considered jurisdictional wetland vegetation under rules applicable prior to October 1, 1984. If the driveway on the Gratzer property was installed prior to October 1, 1984, it is legal, but if it was installed after that date it is illegal because there is no evidence it ever was properly permitted. DER does not allow illegally filled areas to cut off the extent of its wetland jurisdiction. Therefore, if the driveway on the Gratzer property were placed in DER jurisdictional wetlands without a permit, the road itself could not act as a 10 year backstop cutting off DER wetland jurisdiction to the west. There was conflicting evidence as to when the driveway was placed on the property. James Hartman, who sold the property to the Gratzers, testified he built the driveway in 1978 and 1979. William Kuyper, an expert in aerial photography interpretation, testified that based on his review of aerial photos, the road had been placed on site sometime between January 6, 1986, and March, 1989. The weight of the evidence indicates the driveway was probably placed on site before October 1, 1984, and therefore did not require a DER permit. First, the former landowner's testimony that he built the road in 1978 and 1979, must be considered more reliable than an interpretation of aerial photos taken from 12,000 feet in the air, in spite of the expertise of the photographic interpreter. A possible explanation for why the driveway "appeared" in the 1989 aerial photo but not in the 1986 aerial photo is that the road may have been disturbed, or new fill put on the road sometime between 1986 and 1989, causing the road to be more visible in 1989. Even if the 10 year backstop were to be determined without the driveway present, it would not be significantly different. While DER's 10 year backstop line "bumps up" against the road in places, it does not "bump up" in other places along the driveway, but in order to be conservative the line was placed along with driveway in all areas. The modelled location of the line north of the housepad where there is no driveway is consistent with where the line is modelled south of the housepad where the driveway is located. The Society and its Concerns The Society's corporate status was not controverted. CFWS members have been patrolling the Lake Jessup/Gee Creek area and other wetland areas and have found what they believe are violations of the law and rules intended to protect wetland resources. Although neither Michael Mingea nor his expert witness have been on the Gratzer property, they have been in the immediate area and are concerned about the cumulative impact of small dredging projects, like the Gratzers, which projects are routinely reported to DER by the Society. Beginning in May 1991, the Society corresponded regularly with Secretary Browner at DER and Secretary Williams at the Department of Health and Rehabilitative Services (HRS) and their respective staffs, regarding what the Society perceived were violations occurring through lax enforcement. The Society believed, though review of HRS and DER files, that the Gratzers' project included a septic tank placed in jurisdictional wetlands. This was not established; rather, the septic tank was erroneously placed inside a setback line, but outside the jurisdictional line, and a variance was readily obtained from HRS. DER does not have direct jurisdiction over septic tank permits and HRS' authority is derived from the statutes, not from DER. The Society's position regarding the Gratzer project is based in substantial part on its assertion that the fill road was illegally placed and that DER's jurisdiction extended through the entire property. The Society, however, did not rebut the sound evidence by George Baragona of the 10-year backstop. Nor did it present competent evidence of any alleged water quality violations. Only one other actual violation of permit requirements was established, and DER has required the developer to move the project from jurisdictional wetlands.
Recommendation Based on the foregoing, it is hereby, recommended that the Consent Order that is the subject of this proceeding be adopted as Final Agency Action. RECOMMENDED this 24th day of July, 1992, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-0104 The following constitute specific rulings on the findings of fact proposed by Petitioners: 1.-3. Adopted in preliminary statement and paragraph 19. 4. Adopted in substance in paragraph 5. 5.-6. Rejected as unnecessary. 7.-8. Adopted in substance in paragraph 14. 9.-12. Rejected as unnecessary. 13. Adopted in part in paragraph 20, otherwise rejected as unnecessary. 14.-16. Rejected as unnecessary. 17.-18. Rejected as contrary to the evidence. 19. Rejected as contrary to the greater weight of evidence. 20.-22. Rejected as unnecessary. 23.-25. Rejected as contrary to the evidence. 26. Rejected as unnecessary. 27.-30. Rejected as contrary to the evidence. 31.-32. Rejected as summary of testimony or argument, rather than findings of fact. 33.-34. Rejected as contrary to the weight of evidence. 35.-36. Rejected as unnecessary. 37. Rejected as contrary to the evidence. [Section VI, pp 19-22 includes unnumbered paragraphs summarizing testimony, rather than findings of fact]. COPIES FURNISHED: Michael W. Mingea, President Central Florida Wetlands Society P.O. Box 2826 Orlando, FL 32802 Rex D. Ware, Esquire P.O. Box 1794 Tallahassee, FL 32302 Douglas H. MacLaughlin, Esquire DER-Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary DER-Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. DER-Twin Towers Ofc. Bldg. 2600 Blair Stone Road Tallahassee, FL 32399
The Issue The issue is whether the City's applications for an individual stormwater permit and a noticed general environmental resource permit for Phase 1A of the proposed Hogtown Creek Greenway should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In these two cases, Respondent, City of Gainesville (City), seeks the issuance of a stormwater system management permit (stormwater permit) to construct a 2,000-foot long asphaltic trail/boardwalk, a parking facility and associated improvements for Phase 1A of the Hogtown Creek Greenway project in the north central portion of the City. That matter is docketed as Case No. 97-2845. The City also seeks the issuance of a noticed general environmental resource permit (NGP) to construct 481 square feet of piling supported structures over wetlands or surface waters for the same project. That matter has been assigned Case No. 97-2846. Respondent, St. Johns River Water Management District (District), is the regulatory agency charged with the responsibility of reviewing and approving the requested permits. Petitioner, Greenspace Preservation Association, Inc., is a not-for-profit Florida corporation primarily composed of persons who own real property adjacent to the route proposed by the City, as well as local environmental interests. Petitioners, Frank Ward, Sal Locascio, Frederick P. Peterkin, and Harold M. Stahmer, are individuals who own real property adjacent to the route proposed by the City for the Greenway. The parties have stipulated that Petitioners are substantially affected by the District's proposed action and thus have standing to initiate these cases. On March 28, 1997, the City filed applications for a stormwater permit and a NPG for Phase IA of the Hogtown Creek Greenway project. After conducting a review of the applications, including an on-site visit to the area, in May 1997, the District proposed to issue the requested permits. On June 9, 1997, Petitioners timely filed a Petition for Initiation of Formal Proceedings as to both intended actions. As amended and then refined by stipulation, Petitioners generally allege that, as to the stormwater permit, the City has failed to provide reasonable assurance that the project meets the permitting requirements of the District; the City has failed to provide reasonable assurance that the stormwater system will not cause violations of state water quality standards; the City has failed to provide reasonable asurance that the project satisfies the District's minimum required design features; and the City has failed to provide reasonable assurance that the stormwater system is capable of being effectively operated and maintained by the City. As to the NPG, Petitioners generally allege that the piling supported structure is not less than 1,000 square feet; the jurisdictional wetlands are greater than the area shown on the plans submitted by the City; the City has failed to provide reasonable assurance that the system will not significantly impede navigation; the City has failed to provide reasonable assurance that the system does not violate state water quality standards; the City has failed to provide reasonable assurance that the system does not impede the conveyance of a watercourse in a manner that would affect off-site flooding; the City has failed to provide reasonable assurance that the system will not cause drainage of wetlands; and the City failed to provide reasonable assurance that the system does not adversely impact aquatic or wetland dependent listed species. Respondents deny each of the allegations and aver that all requirements for issuance of the permits have been met. In addition, the City has requested attorney's fees and costs under Section 120.595(1)(b), Florida Statutes (Supp. 1996), on the theory that these actions were filed for an improper purpose. A General Description of the Project The Hogtown Creek Greenway is a long-term project that will eventually run from Northwest 39th Street southward some seven miles to the Kanapaha Lake/Haile Sink in southwest Gainesville. These cases involve only Phase 1A of that project, which extends approximately one-half mile. This phase consists of the construction of a 2,000-foot long asphaltic concrete trail/boardwalk, a timber bridge and boardwalk, a parking facility, and associated improvements. The trail will extend from the Loblolly Environmental Facility located at Northwest 34th Street and Northwest 5th Avenue, to the intersection of Northwest 8th Avenue and Northwest 31st Drive. The trail will have a typical width of ten feet. For the majority of its length, the trail will be constructed of asphaltic concrete overlying a limerock base, and it will generally lie at the existing grade and slope away from the creek. Besides the trail, additional work involves the repaving of Northwest 5th Avenue with the addition of a curb and gutter, the construction of an entrance driveway, paved and grassed parking areas, and sidewalks at the Loblolly Environmental Facility, and the widening and addition of a new turn lane and pedestrian crosswalk at the intersection of Northwest 8th Avenue and Northwest 31st Drive. The Stormwater Permit Generally The entire Phase IA project area lies within the Hogtown Creek 10-year floodplain. It also lies within the Hogtown Creek Hydrologic Basin, which basin includes approximately 21 square miles. The project area for the proposed stormwater permit is 4.42 acres. Water quality criteria Phase IA of the Greenway will not result in discharges into surface groundwater that cause or contribute to violations of state water quality standards. When a project meets the applicable design criteria under the District's stormwater rule, there is a presumption that the project will not cause a violation of state water quality standards. There are two dry retention basins associated with the project. Basin 1 is located at the cul-de-sac of Northwest 5th Avenue and will capture and retain the stormwater runoff from the new and reconstructed impervious areas at the Loblolly Facility. Basin 2 is located at the parking area and will capture and retain stormwater runoff at the existing building and proposed grass parking area. Under the stormwater rule, the presumptive criteria for retention basins require that the run-off percolate out of the basin bottom within 72 hours. The calculations performed by the City's engineer show that the two retention basins will recover within that timeframe. In making these calculations, the engineer used the appropriate percolation rate of ten inches per hour. Even using the worst case scenario with a safety factor of twenty and a percolation rate of one-half inch per hour, the two retention basins will still recover within 72 hours. The presumptive criteria for retention basins require that the basin store a volume equal to one inch of run-off over the drainage area or 1.25 inches of run-off over the impervious area plus one-half inch of run-off over the drainage area. The calculations performed by the City's engineer show that the two retention basins meet the District's volume requirements for retention systems. An applicant is not required to utilize the presumptive design criteria, but instead may use an alternative design if the applicant can show, based on calculations, tests, or other information, that the alternative design will not cause a violation of state water quality standards. As a general rule, the District applies its stormwater rule so that water quality treatment is not required for projects or portions of projects that do not increase pollutant loadings. This includes linear bicycle/pedestrian trails. The City's proposed trail will not be a source of pollutants. The City will install signs at both entrances to the trail to keep out motorized vehicles. Except for emergency and maintenance vehicles, motorized vehicles will not be permitted on the trail. The infrequent use by emergency or maintenance vehicles will not be sufficient to create water quality concerns. The construction of a treatment system to treat the stormwater from the trail would provide little benefit and would only serve to unnecessarily impact natural areas. Although treatment of the stormwater run-off from the trail portion of the project is not required under District rules, the run-off will receive treatment in the vegetated upland buffer adjacent to the trail. The District's proposed other condition number 3 will require the City to plant vegetation in unvegetated and disturbed areas in the buffer. This will reduce the likelihood of erosion or sedimentation problems in the area of the trail. Although disputed at hearing, it is found that the City's engineer used the appropriate Manning coefficient in the calculations regarding the buffer. Even without a vegetated buffer, run-off coming from the bicycle trail will not violate state water quality standards. The City will install appropriate erosion and sediment controls. These include siltation barriers along the entire length of both sides of the proposed trail prior to commencing construction. Such barriers will not allow silt or other material to flow through, over, or under them. The City will also place hay bales and any other silt fencing necessary to solve any erosion problem that may occur during construction. In addition, the permit will require an inspection and any necessary repairs to the siltation barriers at the end of each day of construction. Saturation of the limerock bed under the paved portion of the trail is not expected to cause a problem because heavy vehicles will not regularly use the trail. The trail portion of the project can be adequately maintained to avoid deterioration. Sensitive Karst Areas Basin criteria The two proposed dry retention basins for Phase 1A are located within the District's Sensitive Karst Areas Basin. They include all of the minimum design features required by the District to assure adequate treatment of the stormwater before it enters the Floridan aquifer and to preclude the formation of solution pipe sinkholes in the stormwater system. There will be a minimum of three feet of unconsolidated soil material between the surface of the limestone bedrock and the bottom and sides of the two retention basins. The appropriate mechanism for determining the depth of limestone is to do soil borings. The soil borings performed by the City show that there is at least three feet of unconsolidated material between the bottom of the basins and any limerock where the borings were taken. In other words, limestone would not be expected to be within three feet of the bottom of either basin. Based on the soil boring results, the seasonal high water table is at least six feet below ground level. The depth of the two retention basins will be less than ten feet. Indeed, the depth of the basins will be as shallow as possible and will have a horizontal bottom with no deep spots. To make the retention basins any larger would require clearing more land. A large shallow basin with a horizontal bottom results in a lower hydraulic head and therefore is less potential for a sinkhole to form. Before entering the basins, stormwater will sheet flow across pavement and into a grass swale, thereby providing some dispersion of the volume. Finally, the two retention basin side slopes will be vegetated. Special condition number 7 provides that if limestone is encountered during excavation of a basin, the City must over- excavate the basin and backfill with three feet of unconsolidated material below the bottom of the basin. Drainage and flood protection Contrary to Petitioners' assertions, the project will not adversely affect drainage or flood protection on surrounding properties. The trail will be constructed generally at existing grade. Because the trail will be constructed at existing grade, the net volume of fill necessary for Phase 1A is approximately zero. Therefore, there will not be a measurable increase in the amount of runoff leaving the site after construction, and the trail will not result in an increase in off-site discharges. District rules require that the proposed post- development peak rate of discharge from a site not exceed the pre-development peak rate of discharge for the mean annual storm only for projects that exceed fifty percent impervious surface. The proposed project has less than fifty percent impervious surface. Even though it is not required, the City has demonstrated that the post-development rate of discharge will not exceed the pre-development peak rate of discharge. Both basins will retain the entire mean annual storm so that the post-development rate of discharge is zero. Even during a 100-year storm event, the retention basins willl not discharge. Therefore, there will not be any increase in floodplain elevations during the 10, 25, or 100-year storm events from the proposed project. Operation and maintenance entity requirements The applicable requirements of Chapter 40C-42, Florida Administrative Code, regarding operation and maintenance, have been met by the applicant. The City proposes itself as the permanent operation and maintenance entity for the project. This is permissible under District regulations. The duration for the operation and maintenance phase of the permit is perpetual. The City has adequate resources and staff to maintain the phase 1A portion of the project. The public works department will maintain the stormwater management system out of the City's utility fund. The City provides periodic inspections of all of its stormwater systems. These inspections are paid for out of the collected stormwater fees. The City will also conduct periodic inspections of the project area, and the two retention basins will be easily accessed by maintenance vehicles. The City will be required to submit an as-built certification, signed and sealed by a professional engineer, once the project is constructed. Monthly inspections of the system must be conducted looking for any sinkholes or solution cavities that may be forming in the basins. If any are observed, the City is required to notify the District and repair the cavity or sinkhole. Once the system is constructed, the City will be required to submit an inspection report biannually notifying the District that the system is operating and functioning in accordance with the permitted design. If the system is not functioning properly, the applicant must remediate the system. The City will be required to maintain the two retention basins by mowing the side slopes, repairing any erosion on the side slopes, and removing sediment that accumulates in the basins. Mowing will be done at least six times per year. The City will stabilize the slopes and bottom areas of the basins to prevent erosion. The City has a regular maintenance schedule for stormwater facilities. The project will be included within the City's regular maintenance program. The City has budgeted approximately $80,000.00 for maintenance of the trail and vegetated buffer. Also, it has added new positions in its budget that will be used to maintain and manage the Greenway system. Finally, City staff will conduct daily inspections of the Phase 1A trail looking for problems with the vegetated buffer, erosion problems along the trail, and sediment and debris in the retention basin. If the inspections reveal any problems, the staff will take immediate action to correct them. The Noticed General Environmental Resource Permit Generally By this application, the City seeks to construct 481 square feet of piling supported structures over wetlands or surface waters. The proposed structures include a 265 square foot timber bridge over an un-vegetated flow channel, which connects a borrow area to Possum Creek, and a 216 square foot boardwalk over two small wetland areas located south of the flow channel. None of the pilings for the bridge or boardwalk will be in wetlands, and no construction will take place in Hogtown or Possum Creeks. The paved portion of the trail will not go through wetlands, and there will be no dredging or filling in wetlands. The receiving waters for the project are Hogtown and Possum Creeks. Both are Class III waters. Hogtown Creek originates in north central Gainesville and flows southwest to Kanapaha Lake/Haile Sink in southwest Gainesville. Possum Creek originates in northwest Gainesville and flows southeast to its confluence with Hogtown Creek south of the proposed bridge structure. Wetlands The total area of the proposed bridge and boardwalk over surface water or wetlands is approximately 481 square feet. The wetland delineation shown on the City's Exhibit 5A includes all of the areas in the project area considered to be wetlands under the state wetland delineation methodology. The United State Army Corps of Engineers' wetland line includes more wetlands than the District wetland line. The former wetland line was used to determine the area of boardwalk and bridge over wetlands. Even using this line, however, the total area of boardwalk over surface waters or wetlands is approximately 481 square feet and is therefore less than 1,000 square feet. Navigation The proposed system does not significantly impede navigation. Further, the structures will span a wetland area and an un-vegetated flow channel, both of which are non-navigable. In fact, the flow channel generally exhibits little or no flow except after periods of rainfall. Water quality The construction material that will be used for the bridge and boardwalk will not generate any pollutants. Morever, chemical cleaners will not be used on those structures. Silt fences will be used and vegetation will be planted in the vicinity of the bridge and boardwalk to prevent erosion and sedimentation problems. The amount of erosion from drip that comes off the boardwalk will be minimal. Therefore, the bridge and boardwalk will not cause a violation of state water quality standards. Off-site flooding The project will not impede conveyance of any stream, river, or other water course which would increase off-site flooding. The structures will completely span the wetland areas and flow channel, and no part of the structures, including the pilings, will lie within any water or wetland areas including the flow channel. There will be a span of 2.5 to 3 feet from the horizontal members of the bridge and boardwalk down to the ground surface which will allow water to pass through unobstructed. Further, there will not be any cross ties or horizontal obstructions on the lower portions of the boardwalk or bridge pilings. Further, due to the spacing of the pilings, the boardwalk and bridge will not trap sufficient sediment such as leaves to impede the conveyance of the flow channel. Therefore, conveyance through the flow channel will not be affected by the structures. Because the boardwalk and bridge are not over Hogtown or Possum Creeks, they will not cause any obstruction to the conveyance of the creeks. Aquatic and wetland dependent listed species The project will not adversely affect any aquatic or wetland dependent listed species. These species are defined by District rule as aquatic or wetland dependent species listed in Chapter 39-27, Florida Administrative Code, or 50 Code of Federal Regulations, Part 17. No such species are known to exist in the project area, and none are expected to exist in the location and habitat type of the project area. Therefore, contrary to Petitioners' assertions, there are no listed salamander, frog, turtle, or lizard species known to occur within the Hogtown Creek basin. Although it is possible that the box turtle may be found in the project area, it is not an aquatic or wetland dependent listed species. One baby American alligator (between two and three feet in length) was observed in the borrow pit area of the project on September 11, 1997. Except for this sighting, no other listed animal species have been observed in the project area. As to the alligator, the only area in which it could nest would be in the existing excavated borrow pit, and none of the proposed construction will take place in that area. More than likely, the alligator had walked into the area from Clear Lake, Kanapaha Prairie, or Lake Alice. The proposed structures will not affect the movement of the alligator nor its feeding habits. Drainage of wetlands Because the boardwalk and bridge are elevated structures over waters and wetlands, and the City has not proposed to construct ditches or other drainage systems, the proposed system will not cause drainage of the wetlands. Coral/macro-marine algae/grassbeds The proposed system is not located in, on, or over coral communities, macro/marine algae, or a submerged grassbed community. D. Were the Petitions Filed for an Improper Purpose? Prior to the filing of their petitions, Petitioners did not consult with experts, and they prepared no scientific investigations. Their experts were not retained until just prior to hearing. Petitioners are citizens who have genuine concerns with the project. They are mainly longtime residents of the area who fear that the Greenway will not be properly maintained by the City; it will increase flooding in the area; it will cause water quality violations; and it will attract thousands of persons who will have unimpeded access to the back yards of nearby residents. Although these concerns were either not substantiated at hearing or are irrelevant to District permitting criteria, they were nonetheless filed in good faith and not for an improper purpose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order approving the applications of the City of Gainesville and issuing the requested permits. DONE AND ENTERED this 19th day of December, 1997, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1997. COPIES FURNISHED: Henry Dean, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Samuel A. Mutch, Esquire 2790 Northwest 43rd Street Suite 100, Meridien Centre Gainesville, Florida 32606 Jennifer B. Springfield, Esquire Mary Jane Angelo, Esquire Post Office Box 1429 Palatka, Florida 32178-1429 Richard R. Whiddon, Jr., Esquire Post Office Box 1110 Gainesville, Florida 32602-1110
Findings Of Fact The parties stipulated to the following facts and introduction of the following exhibits: The Petitioner filed an application, Respondent's Exhibit 6, with the Army Corp of Engineers and the State of Florida Department of Environmental Regulation to reconstruct the breach in the dike surrounding Big Blue Springs. The Petitioner sought and obtained a letter granting an exemption from the State of Florida Department of Environmental Regulation dated February 3, 1993, Respondent's Exhibit 2, which permitted the placement of 280 cubic yards of fill into the breach of the dike around Big Blue Springs. The Petitioner sought and obtained a letter dated April 6, 1993, Respondent's Exhibit 3, from the Department of Natural Resources, which states that the proposed activity (reconstruction of the dike) was exempt from the need for a wetland resource permit. The Petitioner obtained a letter dated July 19, 1993, Respondent's Exhibit 4, from the Army Corp of Engineers approving reconstruction of the dike surrounding Big Blue Springs. The dike and springs are not located in an aquatic preserve, in Monroe County or contiguous to an unbridged, undeveloped coastal barrier island. See Tx-Page 13, line 24 et seq. Public notice was given of the intent to issue a permit for the reconstruction of the dike. See Tx 14, line 18 et seq. After receiving the aforementioned approvals, the Petitioner repaired the breach in the dike. Respondent's Exhibit 1 is a certified copy of the agenda item for the Governor and Cabinet, Board of Trustees' meeting of November 9, 1993, which reflects that the Petitioners' request for a 25 year public easement to maintain the dike was denied, that the staff was directed to restore Big Blue Springs to its natural features, and that the letter of April 6, 1993 regarding filing and restoration of the dike and breach in the dike was rescinded. The transcript of the Trustees' November 9,1993 meeting, Exhibit 5, was received into evidence. The Petitioner withdraws any contention or allegation that the Respondents acted contrary to the facts or law with regard to Trustees' denial of the 25 year public easement and the Trustees' direction to staff to restore the spring to its natural features. Tx-9. Big Blue Springs lies below the ordinary high water line. Tx-12. The Petitioners' sole assertion is that the Trustees' could not rescind retroactively the approval to repair the breach after Petitioners had repaired the breach. The decision of the Trustees on November 9, 1993 was intended to be prospective in nature, and did not indicate that the filling and reconstruction of the breach was done contrary to federal or state law. Based upon the foregoing stipulations, the Petitioner moved that the Hearing Officer make summary factual findings on the issue of whether the Petitioner was authorized to fill the breach in the dike at the time, in the place, and in the manner it was filled. The Petitioner was authorized to fill the breach in the dike at the time, in the place, and in the manner it was filled. Thereafter, the parties further stipulated that: The Respondents will not pursue any action against the Petitioner asserting that the filling or reconstruction of the breach in the dike was unlawful or contrary to law. The Petitioner will not pursue any action against the Respondent to recover any expense or damage allegedly incurred by filling and reconstructing the dike.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: Based upon the stipulation of the parties, there are no further controversies pending between the parties. Therefore, this case is closed and notice thereof is provided to the parties by copy of this order. DONE and ENTERED this 29th day of September, 1995, in Tallahassee, Florida. STEPHEN F. DEAN, 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 29th day of September, 1995. COPIES FURNISHED: Clark A. Stillwell, Esquire Brannen, Stillwell & Perrin, P.A. 320 Highway 41 South Post Office Box 250 Inverness, Florida 32651-0250 Evelyn Davis Golden, Esquire John W. Costigan, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virgina B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Floirda 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Floirda 32399-2400
The Issue Whether Building Permit No. 9210004557 issued by Monroe County, Florida, to Daniel and Betsy Jones as owners and Russell D. Moore as contractor for the construction of a canal front vertical bulkhead and dock as a structural accessory to a single family dwelling is contrary to the provisions of Chapter 380, Florida Statutes, the Monroe County Comprehensive Plan and the Monroe County Land Development Regulations.
Findings Of Fact Petitioner is the state land planning agency charged with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Petitioner has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern. Monroe County is a political subdivision of the State of Florida, and is responsible for issuing development orders for development in unincorporated Monroe County. Monroe County issued the development order that is the subject of this appeal. Respondents, Daniel and Betsy Jones, are the owners of real property known as Lot 27, Section D (ext. to Hibiscus Lane), Sugarloaf Shores, Florida (Lot 27). Sugarloaf Shores is a legally platted subdivision. The Jones were, at the time of the formal hearing, constructing a single family dwelling on that property. The building permit for the construction of the dwelling is not at issue in this proceeding. Most of Monroe County, including the subject property, is within the Florida Keys Area of Critical State Concern as designated under Sections 380.05 and 380.0552, Florida Statutes. There is an extensive man-made canal system throughout Sugarloaf Shores subdivision that is several miles in length, is between six and ten feet in depth, and is approximately sixty feet in width. The subject permit is for construction where Lot 27 fronts this canal system and involves construction beyond the mean high water mark onto submerged lands. On June 26, 1992, Monroe County issued the subject building permit, Permit Number 9210004557, to Daniel Jones and Betsy Jones as owners and Russell D. Moore as contractor. The subject permit authorizes the construction of a vertical bulkhead designed to limit erosion together with a docking facility with davits and access to the canal system. Most of the neighboring lots in the vicinity of the project have vertical bulkheads with docking facilities. The bulkhead is desirable to prevent erosion of the canal bank at Lot 27 and pollution of the canal waters. The requested development would give the Jones safe access to the canal and provide private boating facilities. Pursuant to the provisions of Sections 380.05 and 380.0552, Florida Statutes, Monroe County has adopted a comprehensive plan which complies with the Principles of Guiding Development found at Section 380.0552(7), Florida Statutes. Section 380.0552(7), requires Monroe County's land development regulations to comply with certain Principles For Guiding Development, including the following: (b) To protect shoreline and marine resources, including mangroves, coral reef formations, seagrass beds, wetlands, fish and wildlife and their habitat. * * * (e) To limit the adverse impacts of development on the quality of water throughout the Florida Keys. ... Monroe County's comprehensive plan, which has been approved by the Petitioner and by the Administration Commission, is implemented through its adopted land development regulations, codified in Chapter 9.5, Monroe County Code. Section 9.5-345(m)(2), Monroe County Code, provides as follows: (2) All structures on any submerged lands and mangroves shall be designed, located and constructed such that: * * * No structure shall be located on submerged land which is vegetated with sea grasses except as is necessary to reach waters at least four (4) feet below mean low level for docking facilities; No docking facility shall be developed at any site unless a minimum channel of twenty (20) feet in width where a mean low water depth of at least minus four (4) feet exists; Section 9.5-4(W-1), Monroe County Code, provides as follows: (W-1) "Water at least four (4) feet below mean sea level at mean low tide" means locations that will not have a significant adverse impact on off-shore resources of particular importance. For the purposes of this definition, "off-shore resources of particular importance" shall mean hard coral bottoms, habitat of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet, and all designated aquatic preserves under Florida Statutes section 258.39 et seq. Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element, provides, in pertinent part, as follows: The Florida Keys are dependent on nearshore water quality for their environmental and economic integrity. The heart of the Florida Keys economy, the means by which Monroe County exists as a civil and social institution, is based on its unique oceanic character. If nearshore water quality is not maintained, then quality of life and the economy of Monroe County will be directly and immediately impacted. OBJECTIVES 1. To protect, maintain and, where appropriate, to improve the quality of nearshore waters in Monroe County. * * * POLICIES 1. To prohibit land use that directly or indirectly degrade nearshore water quality. * * * To prohibit the development of water dependent facilities, including marinas, at locations that would involve significant degradation of the biological character of submerged lands. To limit the location of water-dependent facilities at locations that will not have a significant adverse impact on off-shore resources of particular importance. For the purposes of this policy, off-shore resources of particular importance shall mean hard coral bottoms, habitat of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet, and all designated aquatic preserves under Florida Statutes section 258.39 et seq. Benthic communities exist in Sugarloaf Sound, such as rock-hard bottom, sea grasses, algae, and hard coral. Turtles, manatees, sharks, stingrays, eagle rays, snapper, pink shrimp, mullet, and other marine animals populate the Sound. Sea grass beds play an important role in water quality maintenance in the Keys through filtration, nutrient uptake, stabilization of the bottom, and as a habitat for commercially important species. The canal system for Sugarloaf Shores subdivision does not have access to deep water without crossing shallow sea grass beds with depths of less than four feet at mean low water. The operation of motor driven boats may result in damage to sea grass beds and shallow water marine communities through prop dredging. Although there is evidence of prop dredging in parts of Sugarloaf Sound in these shallow areas, it was not shown that the damage was done by boats traveling from the Sugarloaf Shores canal system and deep water. Whether a boat that may be docked at some future time if the permit is granted will cause damage to some portion of Sugarloaf Sound is speculation. Since 1986, Monroe County has adopted an interpretation of Section 9.5-345(m)(2), Monroe County Code, and of Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element, that would permit the construction of the subject project. That interpretation permits the development of marginal seawalls, vertical bulkheads and docks in subdivisions that were under development in 1986 if there is at least four feet of water at the terminal point of the dock at mean low tide. The dock that is the subject of this proceeding would, if permitted, terminate in water of at least six feet in depth at mean low tide. Monroe County's interpretation of the so-called "four foot rule" is that the rule was intended to restrict the development of boating access facilities in new, undeveloped subdivisions and to regulate proposed expansion of existing marinas and the development of new marinas. Monroe County's interpretation of its rules is that a vertical bulkhead and dock built on an individual family home-site, where a dwelling was already built or under construction, would have minimal effect on the nearshore water environment of critical state concern. Monroe County considers the subject application by the Jones to meet all of its permitting criteria. The subject project has received an exemption from permitting from the Florida Department of Environmental Regulation and from the Florida Department of Natural Resources. The Army Corps of Engineers has agreed to issue a permit for the project with no special conditions. There is no definition of "docking facility" contained within the Monroe County Land Development Regulations or the Monroe County Comprehensive Plan. It was not established that a bulkhead is a docking facility or that the construction of a bulkhead on Lot 27 should be prohibited under any of the theories advanced by Petitioner. Respondents presented evidence that several similar projects were permitted at approximately the same time as the Jones's permit without Petitioner filing an appeal. This evidence was insufficient to establish that Petitioner should be estopped to appeal the subject permit, that Petitioner engaged in selective enforcement of its regulatory power, or that Petitioner otherwise brought the subject appeal for an inappropriate purpose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order which approves the construction of the bulkhead. It is further recommended that the Final Order conditionally deny the permit, but specify that the County may approve the building permit at issue if there are channel markers to open water marked and approved by the Florida Department of Environmental Protection. DONE AND ENTERED this 11th day of June, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 11th day of June, 1993. COPIES FURNISHED: Lucky T. Osho, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 J. Daniel and Betsy Jones 2515 Nela Avenue Orlando, Florida 32809 Russel D. Moore Route #5, Box 600 Big Pine Key, Florida 33043 Randy Ludacer, Esquire Monroe County Attorney Fleming Street Key West, Florida 33040 David K. Coburn, Secretary Florida Land and Water Adjudicatory Commission Executive Office of the Governor Carlton Building Tallahassee, Florida 32301 Carolyn Dekle, Director South Florida Regional Planning Council Suite 140 3400 Hollywood Boulevard Hollywood, Florida 33021 Robert Herman Monroe County Growth Management Division Public Service Building, Wing III 5825 Jr. College Road Stock Island Key West, Florida 33040 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 G. Steven Pfeiffer, General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100
