The Issue The issue for determination is whether Petitioner's revocation of Respondent's modified permit, authorizing a cross- fence on Petitioner's fee owned right-of-way, should be approved.
Findings Of Fact The South Florida Water Management District (District) is a public corporation in the State of Florida, existing by virtue of Chapter 25270, Laws of Florida (1949), and operating pursuant to Chapter 373, Florida Statutes, and Title 40E, Florida Administrative Code, as a multi-purpose water management district. The District's principal office is West Palm Beach, Florida. In executing its multi-purpose, the District, as local sponsor for the US Army Corps of Engineers' Central and Southern Florida Flood Control Project, acquired canal rights-of-way. The District's rights-of-way were acquired to enable the Corps of Engineers to construct the flood control project and to maintain the system after its construction. The District operates a proprietary-based right-of-way program to manage the various property interests of the canal rights-of-way. The purpose of the District's right-of-way program is, to the extent possible, to allow uses of the rights- of-way that do not conflict with the flood control project. The rights-of way are used by both public and private concerns, including adjacent property owners, governmental entities, and utility companies. Jesus G. Quevedo is a private individual. His address is 2615 North Federal Highway, Lake Worth, Florida. The property at this address was vacant when Mr. Quevedo purchased it, and he has owned the property for approximately ten (10) years. The District has fee simple title to a strip of land on the south side of the District's C-51 Canal, immediately west of the Federal Highway/Olive Avenue bridge (C-51 Right-of-Way). Mr. Quevedo's property is located at the side of and adjacent to the C-51 Right-of-Way. The C-51 Right-of-Way is also located within the boundaries of Spillway Park as established in the agreement between the District and the City of Lake Worth. Generally described, Spillway Park includes the District's fee simple owned right-of-way on the south side of the District's C-51 Canal, beginning at the west side of the Federal Highway/Olive Avenue bridge and continuing to the east side of the Dixie Highway bridge. Mr. Quevedo has no real property interest in the C-51 Right-of-Way. Prior to purchasing his property, Mr. Quevedo was aware that the District owned the C-51 Right-of-Way. Historically, portions of Spillway Park and the C-51 Right-of-Way, in particular, have been a unique and popular location for excellent snook fishing by the public. These areas continue to be considered as such. On February 11, 1993, Mr. Quevedo was issued SFWMD Permit No. 9801 (Permit), a right-of-way occupancy permit, by the District’s Governing Board. The Permit authorized him to make use of the District’s lands and works as follows: 20’ X 50’ BOAT DOCK WITH WALKWAY, BURIED WATER AND ELECTRICAL SERVICE, POP-UP SPRINKLERS, AND SODDING WITHIN THE SOUTH RIGHT OF WAY OF C-51 LOCATED IMMEDIATELY WEST OF THE OLIVE AVENUE/FEDERAL HIGHWAY BRIDGE. During the permit application process, but prior to the issuance of the Permit, Mr. Quevedo had discussed with the District's staff the erection of a cross-fence based on allegations of improper or criminal activities by members of the public. Subsequently, in November 1995, Mr. Quevedo again discussed with the District's staff erection of a cross-fence based on the same allegations but he also included a new allegation of public safety as to the C-51 seawall. Based on the concern for public safety, the District's staff recommended that Mr. Quevedo be granted a modification to the Permit for a cross-fence. On November 14, 1996, the District's Governing Board approved, as part of its consent agenda, and issued SFWMD Permit MOD No. 9801 (MOD Permit)3 authorizing the following: CHAIN LINK CROSS FENCE WITH 16’ VEHICULAR GATE ALONG THE WEST PROPERTY LINE WITHIN THE SOUTH RIGHT OF WAY OF C-51 LOCATED AT 2615 NORTH FEDERAL HIGHWAY. The MOD Permit, as did the Permit, provides in pertinent part on its face the following: The permittee, by acceptance of this permit, hereby agrees that he shall promptly comply with all orders of the District and shall alter, repair or remove his use solely at his expense in a timely fashion. . . . This permit is issued by the District as a license to use or occupy District works or lands. . . By acceptance of this permit, the permittee expressly acknowledges that the permittee bears all risk of loss as a result of revocation of this permit. The MOD Permit, as did the Permit, contained standard limiting conditions, as provided in Rule 40E-6.381, Florida Administrative Code, and special conditions. The limiting conditions provide in pertinent part as follows: Permittee agrees to abide by all of the terms and conditions of this permit, including any representations made on the permit application and related documents. . . . This permit does not create any vested rights, and except for governmental entities and public or private utilities, is revocable at will upon reasonable prior written notice. Permittee bears all risk of loss as to monies expended in furtherance of the permitted use. Upon revocation, the permittee shall promptly modify, relocate or remove the permitted use. In the event of failure to so comply within the specified time, the District may remove the permitted use and permittee shall be responsible for all removal costs. This permit does not convey any property rights nor any rights or privileges other than those specified herein. . . . Having been granted the MOD Permit, Mr. Quevedo erected the cross-fence within and onto the C-51 Right-of-Way. The C-51 Right-of-Way is located adjacent to Mr. Quevedo’s property, as indicated earlier, and continues westerly to the permitted cross-fence. The C-51 Right-of-Way is enclosed by the cross-fence, preventing access by the public, and is located easterly of the cross-fence. As the C-51 Right-of-Way is located within the boundaries of the Spillway Park, the cross- fence is also located within the boundaries of the Spillway Park. During the time that Mr. Quevedo has owned his home, including prior to and after erection of the cross-fence, he, his family members and/or guests have frequently fished from the C-51 seawall and used the C-51 Right-of-Way enclosed by the cross- fence. Prior to and after the erection of the cross-fence, Mr. Quevedo and his family members have selectively controlled access by the public to the C-51 Right-of-Way at the C-51 seawall. Prior to the erection of the cross-fence, Mr. Quevedo chased members of the public off the C-51 Right-of-Way. Mr. Quevedo and members of his family also called law enforcement officers to remove members of the public who were located on the C-51 Right-of-Way, even if the members of the public were fishing from the C-51 seawall. After the erection of the cross-fence, Mr. Quevedo and his family members continued to engage in this conduct of selective access. Subsequent to the erection of the cross-fence, Mr. Quevedo had a member of the public arrested for trespassing. The person allegedly jumped over or went around the cross-fence to fish from the C-51 seawall in the C-51 Right-of-Way. With the existence of the cross-fence, Mr. Quevedo has prevented the general public from using the C-51 Right-of-Way, including the C-51 seawall. As a result, he has acquired the exclusive, private use of the C-51 Right-of-Way at the C-51 seawall, which is publicly owned land, and has, almost doubled the size of his adjacent property without the obligations and expense of acquisition, assuming he could acquire the property through acquisition. The District's policy is that public land should be open to the public. Contrary to this policy, Mr. Quevedo's cross-fence precludes access to the District's right-of-way (C-51 Right-of-Way), including the seawall, for passive recreational use. Similar cross-fencing, although not within the boundaries of Spillway Park, have been erected behind residences on the northeast, northwest, and southeast sides of Federal Highway, along the District’s C-51 Canal bank. The cross-fencing prevents public use of the District’s C-51 Canal bank at these locations. The City of Lake Worth made improvements within the boundaries of Spillway Park; however, it made no improvements, and does not intend to make any improvements in the future, at the C-51 Right-of-Way where Mr. Quevedo’s cross-fence is located or at the other private lots west of Mr. Quevedo's property. All of the improvements made at Mr. Quevedo’s cross-fence at the C-51 Right-of-Way have been made by him even though the C-51 Right-of- Way is located within Spillway Park. The original public safety rationale for authorizing Mr. Quevedo to erect the cross-fence blocking public access was revisited by the District. Additional investigation by safety experts (Risk Management staff) revealed that no unreasonable danger existed by allowing public access to the C-51 seawall at the C-51 Right-of-Way. In the absence of the public safety basis for closure of the C-51 Right-of-Way, such closure was contrary to District policy. As a consequence, the District’s staff recommended to the District’s Governing Board that the MOD Permit, authorizing Mr. Quevedo’s cross-fence, be revoked. After conducting two public meetings and receiving comments from Mr. Quevedo, members of the public, and the District’s staff as to the policy issue of pubic access to the C- 51 Right-of-Way, the District’s Governing Board determined that the C-51 Right-of-Way should be open to the public. Consequently, the Governing Board decided to revoke Mr. Quevedo's MOD Permit. Allegations of criminal activity within the general boundaries of Spillway Park and, specifically, in the C-51 Right- of-Way at the cross-fence area, were made by Mr. Quevedo as a basis to not revoke the MOD Permit and allow the cross-fence to remain. Such allegations have no bearing on the revocation of the MOD Permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order revoking SFWMD Permit No. MOD 981 issued to Jesus G. Quevedo. DONE AND ENTERED this 8th day of March, 1999, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 8th day of March, 1999.
Findings Of Fact Based upon the demeanor and credibility of the witnesses, the stipulations of the parties, and the evidentiary record of this proceeding, the following Findings of Fact are made: The Parties Squeeze Me Inn, LLC, is a limited liability corporation incorporated in the State of Florida. Kurt Kroemer is its managing member. Squeeze Me Inn, LLC, owns a single-family home at 8170 Estero Boulevard in Fort Myers Beach, Florida, and pays taxes on the property. Mr. Kroemer purchased the property through Squeeze Me Inn, LLC, based on his enjoyment of the beach. He visits the property five times per year on average, and intends to retire there. Texas Hold’Em, LLC, is a limited liability company incorporated in the State of Florida. Edward Rood is its managing member. Texas Hold’Em, LLC, owns a single-family home at 8150 Estero Boulevard in Fort Myers Beach, Florida, and pays taxes on the property. Mr. Rood uses the home four to five times per year. He enjoys visiting the Gulf of Mexico and the adjacent beach area behind his house. DEP is an agency of the State of Florida, pursuant to section 20.255, Florida Statutes. DEP is the permitting authority in this proceeding and has issued the Consolidated Permit, the CCCL Waiver, and the CCCL Permit at issue in this proceeding to the Applicants. DEP performs staff duties and functions on behalf of the BTIITF related to the review of applications for authorization to use sovereignty submerged lands necessary for an activity regulated under chapter 373, part IV, for which DEP has permitting responsibility. § 253.002(1), Fla. Stat. DEP has been delegated the authority to take action, without any input from BTIITF, on applications for authorization to use sovereignty submerged lands necessary for an activity regulated under chapter 373, part IV, for which DEP has permitting responsibility. § 253.002(1), Fla. Stat.; Fla. Admin. Code R. 18-21.0051(2). Audubon is an organization incorporated in the State of Florida. Audubon has roughly 20,000 members statewide, and 5,000 members in Southwest Florida, some of whom it contends are in the “direct vicinity” of the project. Audubon’s mission statement is to protect birds and their habitat for the benefit of people and wildlife. The Town is an incorporated municipality located on the west coast of Florida along the Gulf of Mexico. The proposed dune walkover is within the Town limits. Standing3/ Audubon considers the LEICWA and its surrounding areas important, because it is “important to the birds.” Audubon was involved in the process of establishing the LEICWA, and its members volunteer to help monitor and manage the LEICWA. The LEICWA is a renowned bird-watching site. Audubon members have assisted in “posting for nesting birds, as well as fielding volunteers who are bird stewards. They chaperone the colony to protect it from disturbance, especially on busy beach going weekends.” The interest in areas outside of the LEICWA is less apparent, though Audubon alleged that the areas around the LEICWA are important to the birds and, thus, Audubon’s members, since “birds unfortunately don’t recognize boundaries.” In addition, Audubon alleged that the dune walkover would irreparably harm the lagoon and the coastal habitat seaward of it, which is important habitat for imperiled species that are critical for the enjoyment of Audubon’s members. Audubon’s interest in contesting the CCCL and the Waiver is tied to the reasons for its ERP and SSL standing. The Town’s interest in the Consolidated Permit and the CCCL Permit was related to the importance of the Ft. Myers Beach beaches, including those in the LEICWA, to the Town’s economy from ecotourism. The Town’s interest in shorebirds is that they contribute to the Town’s economy by “draw[ing] people to select to visit Fort Myers Beach versus other areas of the state.” The Town spends money for beach maintenance to compete for tourism dollars, but does not track the number of visitors to the beach where the Project would be located.4/ The Town’s interest in challenging the CCCL Waiver was that “it goes outside the normal process” and “creates confusion among applicants and the public.” However, the CCCL Waiver would have no effect on the Town’s processing of development orders. In addition, the Town was concerned that the boardwalk, as a frangible structure, could cause damage to the property of nearby private individuals. The interest in that regard was not to the property or resources of the Town, but to “[o]ur residents and our property owners.” Both the Town and Audubon participate in a program that coordinates volunteer efforts to educate beachgoers on nesting birds in the general vicinity of the proposed dune walkover. The Project Area Little Estero Island is part of a barrier island system that has developed over decades through the gradual accretion of sand onto the shoreline. The proposed dune walkover is proposed to be constructed on property just west of Big Carlos Pass, a maintained navigational channel that connects inland coastal waters to the Gulf of Mexico. Big Carlos Pass is a tidally dominated inlet, which results in a very dynamic shoreline in its immediate vicinity. Creation and Fate of the “Lagoon” and Current Shoreline Fort Myers Beach experiences offshore sediment transport that transfers sand along the shoreline from Estero Island towards Big Carlos Pass. In addition, movement of water through Big Carlos Pass agitates and suspends sand, creating an “ebb shoal” at the Gulf side of the pass. Currents generated by wave action transport sand from the ebb shoal offshore along the shoreline on both sides of the pass. The sediment transport results in the development of shoals and swash bars offshore from the Project site. Those features are gradually pushed towards the shore, and eventually “weld” onto the shoreline. Big Carlos Pass was recently (after the October 20, 2015, issuance of the authorizing permit) dredged to maintain, realign, and straighten the inlet channel. The dredged material, consisting of approximately 350,000 cubic yards of sand, was deposited along 4,500 linear feet just offshore to the west of the Project vicinity. The process of accretion, and the “welding” of a shoreward-moving sandbar has resulted in the creation of an enclosed and shrinking body of water between the shoreline and the upland. What was previously the shoreline of the Gulf of Mexico is, for now, the landward shoreline of the “lagoon.” During significant storm events, the area can experience overwash, when storm-driven tides and waves overtop the existing Gulf shoreline, spilling into the lagoon. The overwash pushes sand into the lagoon, creating “fans” of sand and sediment, in a process by which the lagoon is continually filled in and narrowed. As established by Mr. Dombrowski, “what we would anticipate over time is that you keep on getting this over-topping of sand that keeps on filling in on the back side of the lagoon which will eventually fill in with sand.” In addition to overwash, rain and stormwater can fill the lagoon, which can result in the creation of temporary drainage outlets. For example, the area was impacted by Tropical Storm Alberto on Memorial Day 2018. Ms. Burns visited the area after the storm, in June 2018, and observed more water in the lagoon and in surrounding areas, including the sandy areas within the LEICWA. By July 18, 2018, at which time the photographs that comprise Petitioners’ Exhibit 7 were taken, the water levels in the lagoon were lower. During a visit nearer to the date of the hearing, there was less water in the lagoon due to diminished rainfall, and water no longer flowed through the remnants of the drainage channels. Thus, stormwater drainage, rather than tidal connection, is the most likely cause of the swashes observed in the series of photographs taken on July 18, 2018. In order for the lagoon to be considered “tidal,” there would have to be an established connection between the lagoon and the Gulf of Mexico to allow for the regular periodic exchange of waters through tidal ebbs and flows. Mr. DeGraff took a series of “water shots” of the levels in the lagoon and the Gulf of Mexico. Whereas water levels in the Gulf of Mexico changed with the tides, the water levels in the lagoon remained constant, which supports that there is no connection between the two. Overwash and storm events may temporarily open one-way connections and outfalls of water between the lagoon and the Gulf of Mexico as a result of accumulation of water in the back barrier environment. If enough water is pushed into the lagoon, it will find an exit, but the flow is “not back and forth again through a particular cut,” as would be the case with an established and regular tidal connection. The preponderance of the evidence demonstrates that the “lagoon” is not tidally connected to the Gulf of Mexico but is, rather, a feature that experiences no tidal ebb and flow and is, under normal conditions, disconnected from the Gulf of Mexico. The “big picture” view of the process of shoaling, welding, filling, and narrowing of the “lagoon,” and ultimate reestablishment of the previously existing shoreline is depicted in Petitioners’ Exhibit 44, which images can be viewed as a fascinating and visually compelling time-lapse of the Petitioners' Exhibit 44 images at https://earthengine.google.com /timelapse/#v=26.40708,-81.89551,11.491,latLng&t=0.00. The persistent narrowing of the temporary lagoon is well-depicted in Petitioners’ Exhibit 43. That exhibit, consisting of a series of aerial photographs, demonstrates convincingly the accretional nature of the area in front of the Applicants’ property, and offers support for evidence that “over the last 50 plus years . . . and especially within the last ten to 15, is that this shoreline has been accreting.” Competent, substantial evidence establishes that the accretional trend will naturally continue and may be further influenced by the deposition of dredged spoil from Big Carlos Pass, and supports the testimony of Mr. Dombrowski that the lagoon will naturally fill in with the cycle, at some future time, repeating itself. In the area of the Project, the shoreline has been accreting at a rate of around 28 feet (or more) per year between 1999 and 2011. In the last 52 years, the shoreline to the east of the Project area has grown by more than 600 feet. To the west of the Project area, within the LEICWA, overwash events and alluvial fans associated with such events demonstrate the accretional nature of the shoreline. Mr. Kroemer owns a Hobie Wave Runner sailboat, which requires about 12 inches of water, and two kayaks, which require two to three inches of water that he uses in the Gulf of Mexico. To access the Gulf, Mr. Kroemer paddles or pushes the boats - depending on the season - through the lagoon and then takes them over land to the Gulf. The water levels in the lagoon are not sufficient to allow for the sailboat to traverse year round. The greater weight of the evidence supports a finding that the water area over which the dune walkover is proposed will, as a process of accretion, fill with sand creating an unimpeded pathway to the Gulf of Mexico, as was the case prior to the most recent accretionally welded sand bar. The suggestion that the shoreline will erode and ultimately become open water is not supported by the evidence. Vegetation The vegetative species in the vicinity of the proposed dune walkover and surrounding the lagoon include mangroves; shrubby plants, including bay cedar and marsh elder; and facultative grass species, such as hurricane grass. The Project area is becoming increasingly more vegetated, with plant communities pioneering at the ground cover level, followed by shrubs and small trees. The area is generally undergoing natural ecological succession. The vegetation in the areas over which the proposed dune walkover is to be constructed, including the ground cover, is too thick to be conducive for shorebird nesting, which generally occurs in areas that are open, and sandy or shelly. The mangroves that fringe the lagoon range from five to seven feet in height, and the shrubby vegetation in the Project area can be up to four feet in height. Wildlife The beaches in the area are used by shorebirds and migratory birds for nesting, foraging, and loafing. Birds that have been observed in the general vicinity of the LEICWA include Snowy Plovers, Wilson’s Plovers, American Oystercatchers, Black Skimmers, and Least Terns. Snowy Plovers, American Oystercatchers, Black Skimmers, and Least Terns are designated by the FFWCC as threatened bird species. Those species are also identified by DEP as “Listed Wildlife Species that are Aquatic or Wetland Dependent and that Use Upland Habitats for Nesting or Denning” in A.H. Table 10.2.7-1, with Snowy Plovers and Least Terns listed as “State-designated Threatened,” and American Oystercatchers and Black Skimmers listed as “State Species of Special Concern.” Wilson’s Plovers are not a species listed as threatened, of special concern, or of any other protected classification by the FFWCC or DEP. Snowy Plovers, American Oystercatchers, Black Skimmers, and Least Terns prefer clear, open sand for nesting. They lay their eggs on the sand or in shallow “scrapes” or depressions in the sand. The eggs generally match the substrate, and the coloration of the chicks allows them to blend in with the sand, providing a camouflaging defense against predators. Those species are colony nesters, nesting in groups as a reproductive strategy. Wilson’s Plovers also prefer open sandy areas, but will occasionally nest in nearby sparsely vegetated areas, referred to by Mr. Johnson as “salt and pepper” coverage, which have pockets of open sand. Such areas exist waterward of the proposed terminus of the dune walkover. Wilson’s Plovers are solitary nesters. Shorebirds will typically not nest in areas with vegetative cover. Mangroves and other tall, woody species of plants create perching opportunities for crows and other avian predators, while ground-dwelling predators like snakes can move through vegetation and predate shorebird nests. Applicants’ Exhibits 6 and 9 depict the extent of shorebird utilization, including nesting, of habitat in the immediate Project vicinity based on a series of 2017 and 2018 site visits, historic aerial photographs, and FFWCC shorebird data. Applicants’ Exhibit 6 provides a visual representation of the wide utilization of the open raked beach area east of the Project for nesting, with only scattered use of “salt and pepper” vegetated areas by non-threatened Wilson’s Plovers. Applicants’ Exhibits 6 and 9, in combination with Mr. Johnson’s testimony and field notes, is found to be the most accurate and representative depiction of the utilization of the Project area by shorebirds. There have been shorebird sightings on the sandy shoreline waterward of the terminus of the proposed dune walkover. The closest recorded bird sighting to the Project area, involving a Wilson’s Plover nest scrape and, subsequently, a nesting female at that location, was approximately 150 feet southwest of the waterward terminus of the dune walkover in an area of “salt and pepper” vegetation. During his site visits in 2017, Mr. Johnson observed considerable pedestrian traffic along the shoreline waterward of the Project area. It was in this general area that he had noted the presence of Wilson’s Plovers. He explained that Wilson’s Plovers can tolerate pedestrian traffic as long as it does not “get right up on” their nests. When nesting areas are roped off, Wilson’s Plovers can tolerate pedestrian traffic up to the protective barrier as long as it does not encroach into the protected area. Sea turtles also have the potential to nest just above the high tide mark in the dunes waterward of the proposed dune walkover. A staked sea turtle nest west of the Project area was observed by Ms. Burns during her July 2018 visit to the area. Sea turtles do not typically nest in vegetated areas. Given both the distance to and vegetative cover at the waterward terminus of the dune walkover, sea turtles would be unlikely to migrate to the Project area to excavate a nest. There was no evidence that pedestrian access to the location at which Ms. Burns observed the staked sea turtle nest was restricted. Rather, the evidence establishes that pedestrian traffic is allowable and common along the shoreline. People walking along the shore could easily happen upon the staked area, just as Ms. Burns did, and just as Mr. Johnson did during his visits to the area. In that regard, the Applicants, even if they were to take a longer and more circuitous route to the shoreline, would not be restricted in walking along the shoreline in the vicinity of the nest. The preponderance of the evidence establishes that the proposed dune walkover will have no adverse effect on nesting sea turtles in the area. The LEICWA Property to the west of the proposed dune walkover has been designated by the State of Florida as the LEICWA. The LEICWA includes some vegetated land adjacent and parallel to the footprint of the proposed dune walkover. The proposed dune walkover is not within the boundary of the LEICWA. At times, portions of the LEICWA are roped off by the FFWCC to demarcate shorebird nests and nesting colonies, and to channel pedestrian access through the LEICWA. There was no persuasive evidence that pedestrian traffic through the LEICWA is disruptive to the birds using the LEICWA or to their nesting patterns. Posted and roped-off areas are not intended to identify the geographic extent of the LEICWA, and are often not specific to shorebird nest sightings, but instead represent larger areas “to allow the birds to have more availability to choose where they’re going to nest.” Roughly 300 feet east of the Project area and the LEICWA boundary (as scaled using Petitioner’s Exhibit 6) is a large raked, sandy area which is maintained free of vegetation. A large number of shorebirds and shorebird nests have been documented on the open, sandy area. The open, sandy area is directly abutted to its north by homes and by what appear to be larger multi-family structures. In addition, the open area is “preferred by a lot of beach goers to have open sand to walk through instead of walking through vegetation. So it's been manipulated mechanically to be open.” There was no evidence that the direct proximity of such residential structures, their inhabitants, and beachgoers have any disruptive affect on the large nesting colonies inhabiting that area. A four-foot-high, three-foot-wide education kiosk placed by the FFWCC is located on the shore side of the LEICWA. A roughly seven-foot-high, 15-inch-wide sign, educating beachgoers about the LEICWA and of the needs of the birds that frequent the area has been placed at the edge of the LEICWA. Neither of the signs incorporate any features designed to discourage their use as perches. Both of the signs provide an elevated and unobstructed vantage point into the LEICWA’s primary nesting area. The signs, which are much greater in height and nearer to the LEICWA’s preferred shorebird nesting habitat than the proposed dune walkover “can serve as perches” for predatory birds in the area. Although there was evidence that Petitioners’ members and employees monitor the signs for evidence that they are being used as perches, there was no evidence to suggest what might happen if they were. Although the dune walkover is not within the boundary of the LEICWA, Ms. Wraithmell testified that “[t]he birds unfortunately don’t recognize boundaries.” While birds may not recognize boundaries, regulators must. Standards that apply within a designated critical wildlife area do not apply outside of a critical wildlife area, even within feet of the boundary. That is why boundaries, including legal descriptions, are set. Since the proposed dune walkover is not within the boundary of the LEICWA, standards applicable within critical wildlife areas cannot be applied. The Proposed Dune Walkover The dune walkover is proposed as a 1,491.50 square- foot (298.3 feet in length by 5 feet in width) piling-supported wooden walkway five feet in width. Its original six-foot width was reduced to five feet, which remains adequate to accommodate an anticipated need for the use of a wheelchair or mobility device by one of the Applicants. The steps at the waterward end of the proposed dune walkover were replaced with ramps, also for use by a wheelchair or similar device. The replacement of the initially proposed stairs with a ramp will also reduce “lift” forces in the event of a storm. The dune walkover will serve to minimize foot traffic on the native dune vegetation, and will channel the foot traffic from its terminus to the shore of the Gulf of Mexico. As such, the dune walkover will have a beneficial effect on the native vegetation in its immediate area. As originally proposed, the dune walkover was to have been three feet, ten inches above the ground surface, with three-foot-high handrails. In order to meet the concerns posed by others, particularly the FFWCC, the height was lowered to two feet, six inches above the ground surface, which is the maximum height for a structure to be built without handrails. The handrails were removed in their entirety, and the design does not contain any pickets or other “non-structural members.” Thus, the proposed dune walkover is, at its highest point, two feet, six inches above the ground surface. Mangroves in the vicinity of the dune walkover are generally from five to seven feet in height, and commonly occurring shrubby vegetation of four feet in height was observed in the area. Thus, the dune walkover is well below the elevation of the surrounding vegetation. The dune walkover, as currently proposed, has no value as a perch or vantage point for avian predators. The posts that support the structure will be round, six inches in diameter, and installed five feet deep into the sand. The posts will not be encased in concrete, and will be wrapped to prevent leaching of any potentially toxic compounds into the environment. The walking surface of the dune walkover will be made of slatted decking, with a one-half inch space between each deck board. The proposed ERP indicated that gaps will allow sufficient light penetration to maintain the underlying vegetative habitat. There was no persuasive evidence to the contrary. In its final configuration, the proposed dune walkover is fully compliant with, though substantially smaller and less intrusive than, the generally acceptable siting, design, and elevation provisions set forth in the DEP Beach and Dune Walkover Guidelines. As originally proposed, the dune walkover would have crossed the LEICWA boundary, though in an area of minimal value to shorebird nesting or feeding. Nonetheless, in order to address the concerns expressed by others, including the FFWCC, the Applicants modified the configuration of the proposed dune walkover so that it is now completely outside of the boundary of the LEICWA. The construction plans do not require the use of vehicles, other than to deliver the material to the site. There will be no placement of fill. There will be no lighting, either in construction or in operation. As mitigation for the minimal impacts associated with the crossing of the lagoon, and at DEP’s direction, the Applicants purchased 0.01 saltwater forest and 0.1 saltwater herbaceous mitigation credits in the Pine Island Mitigation Bank, to offset for any remaining impacts not avoided through the design modifications. It was established, by a preponderance of the competent, substantial, and persuasive evidence adduced at the hearing, that the proposed mitigation was sufficient to offset any environmental impacts resulting from the proposed Project, even before its width was decreased from six feet to five feet. The alterations to the proposed dune walkover as described herein were largely made to address the concerns expressed by the FFWCC in its comments of August 27, 2015; July 20, 2016; and July 27, 2017, and the proposed ERP and CCCL Permit incorporates all of the conditions requested by the FFWCC. It was established that the Applicants have addressed and met the FFWCC’s concerns regarding the proposed Project. Environmental Resource Permit The issuance or denial of an ERP is generally governed by section 373.414, chapter 62-330, and the Environmental Resource Permit Applicant’s Handbook, Volume I (“A.H.”). Section 373.4131(1) requires DEP to adopt statewide environmental resource permitting rules. DEP has done so through the adoption of rules 62-330.301 and 62-330.302. Under the burden of proof discussed in the Conclusions of Law herein, the Applicants met their burden of demonstrating that they met all applicable standards and were entitled to issuance of the ERP by entering the application and DEP’s notice of intent of issue the ERP in evidence. Therefore, a finding that there was insufficient evidence introduced by Petitioners to rebut the prima facie case is sufficient to establish that the grounds for issuance have been met. Based on the entirety of the record of this proceeding, the Applicants provided reasonable assurances that the proposed dune walkover meets the requirements for the ERP. Rule 62-330.301(1) Rule 62-330.301(1) provides that an applicant for an ERP must provide reasonable assurance that the permitted activity will not cause adverse affects. The standards established by rule are further described in the A.H. Water quantity impacts: Rule 62-330.301(1)(a) and A.H. Section 10.2.2.4 Piling supported structures do not typically impact a water body’s depth or flow. The evidence introduced by Petitioners in this case was not sufficient or persuasive to support a finding that the piling-supported dune walkover would reduce the depth, duration, or frequency of inundation or saturation in the lagoon; would increase the depth, duration, or frequency of inundation through changing the rate or method of discharge of water to the lagoon or by impounding water in the lagoon; or could have the effect of altering water levels in the lagoon. To the contrary, there was substantial testimony, and it is found, that the proposed dune walkover will not cause adverse water quantity impacts to receiving waters and adjacent lands. Adverse flooding: Rule 62-330.301(1)(b) The evidence introduced by Petitioners in this case was not sufficient or persuasive to support a finding that the proposed dune walkover will cause adverse flooding to on-site or off-site property. Adverse impacts to existing surface water storage and conveyance capabilities: Rule 62-330.301(1)(c) The evidence introduced by Petitioners in this case was not sufficient or persuasive to support a finding that the proposed dune walkover will cause adverse impacts to existing surface water storage and conveyance capabilities. Adverse impacts to the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters: Rule 62-330.301(1)(d) and A.H. Section 10.2.2 The A.H. provides that “[i]n evaluating whether an applicant has provided reasonable assurances under these provisions, de minimis effects shall not be considered adverse for the purposes of this section.” In accordance with the A.H., DEP provided information to the FFWCC and solicited comments on the proposed dune walkover in its various configurations. The Applicants met every listed substantive concern expressed by the FFWCC in its comments of August 27, 2015; July 20, 2016; and July 27, 2017. The proposed ERP incorporates all of the conditions requested by the FFWCC. The A.H. section 10.2.2 also provides that “[t]he need for a wildlife survey will depend upon the likelihood that the site is used by listed species and the bald eagle, considering site characteristics and the range and habitat needs of such species, and whether the proposed activity will impact that use.” In its August 27, 2015, comments, the FFWCC requested that the Applicants provide an assessment of anticipated impacts to wildlife. Thereafter, on December 2, 2015, Mr. Rood provided information to DEP explaining, accurately, the densely vegetated nature of the proposed dune walkover location, and its lack of value to nesting shorebirds. He correctly noted the general distance, i.e., 100 to 150 yards, from the terminus of the proposed dune walkover to the nearest shorebird nesting area and “roped off nesting areas.” The A.H. provides that “[t]he need for a wildlife survey will depend upon the likelihood that the site is used by listed species and the bald eagle, considering site characteristics and the range and habitat needs of such species.” As a result of Mr. Rood’s explanation of the characteristics of the Project location, on December 11, 2015, the FFWCC withdrew its request for the survey and wildlife assessment. As set forth herein, the preponderance of the competent, substantial, and persuasive evidence demonstrates that there will be no adverse impacts to the value of functions provided to any species of concern provided by the lagoon and associated wetlands that will result from the construction and use of the proposed dune walkover. Shorebirds, whether or not they are protected species, will not be impacted by the Project. There was no evidence to support a finding that wading birds foraging in the lagoon, as depicted in photographs taken by Ms. Burns, would be affected in any way. Water quality impacts: Rule 62-330.301(1)(e) and A.H. Section 10.2.4 An ERP applicant must provide reasonable assurance that the project will not adversely affect the quality of receiving waters such that State water quality standards will be violated. DEP required turbidity control to address short-term water quality issues attendant with construction. Best management practices to minimize construction-related turbidity are required. The sand in the area is coarse, with a small percentage of sands and clays, further minimizing the potential for turbidity. The pilings are required to be wrapped to prevent any chemicals used to treat the pilings from leaching into the soil or water. The structure will be constructed outward from the boardwalk deck, thus, minimizing impacts to surrounding vegetation and surface waters. The ERP is conditioned on adherence to Best Management Practices to ensure that oils, greases, gasoline, or other pollutants are not released into the wetlands or surface waters. The preponderance of the competent, substantial, and persuasive evidence demonstrates that there will be no adverse impacts on water quality associated with the construction or use of the proposed dune walkover. The evidence introduced by Petitioners was not sufficient or persuasive to support a finding that the proposed dune walkover will cause adverse impacts to water quality. Secondary impacts: Rule 62-330.301(1)(f) and A.H. Sections 10.1.1(f) and 10.2.7 An ERP applicant must provide reasonable assurance that the Project will not cause adverse secondary impacts. The secondary impact criterion consists of four parts as established in A.H. section 10.2.7(a) through (d). The proposed dune walkover will not have any lighting so as to impact turtle nesting, and will involve no vehicles except as necessary to deliver building supplies. Other secondary impacts identified in A.H. section 10.2.7(a) are not applicable. The preponderance of the competent, substantial, and persuasive evidence in this proceeding established that the area in which the proposed dune walkover is to be constructed will not adversely impact the ecological value of uplands for any listed bird species of concern for nesting or foraging as set forth in A.H. section 10.2.7(b). The Project area is thickly vegetated which, as discussed previously, is not conducive for use by shorebirds that frequent the LEICWA. The nearest documented shorebird presence is well removed from the dune walkover terminus. The evidence established that the pedestrian traffic resulting from the use of the dune walkover will not disturb Wilson’s Plovers, which is the only observed species that uses the “salt and pepper” vegetation between the dune walkover and the Gulf of Mexico. Any nests would, as are existing nests in the area, be marked. Wilson’s Plovers are tolerant of pedestrian traffic as long as it does not directly encroach into their nesting area. The suggestion that the Applicants’ use of the proposed dune walkover will disrupt the habits of shorebirds observed near its terminus disregards the fact that the area is already used by the Applicants to access the beach. Furthermore, the beach itself, which is much nearer to observed bird sightings, is popular and frequently used, without restriction, by beachgoers other than the Applicants. There was no evidence that such pedestrian access along the beach adversely affects shorebirds. Pedestrian access is allowed directly through areas of the LEICWA that are more thickly populated with nests of shorebird species less tolerant of pedestrian traffic than the Wilson’s Plovers. There was no evidence that such pedestrian access through the LEICWA adversely affects shorebirds. As indicated previously, the open, sandy area to the east of the Project area is extensively used for nesting by large colonies of various protected shorebird species. That area is directly bounded by single and multi-family residences, and is a popular area for beach access. There was no evidence that human presence near, and pedestrian access through, the areas used by colonies of shorebirds adversely affected those shorebirds. The Applicants presently drag their Hobie sailboat and kayaks across the lagoon and through the dunes. The dune walkover will allow them to simply wheel or carry those vessels across the lagoon and dunes without further impact. The evidence in this case does not support a finding that the existing pedestrian access will be increased by the dune walkover but, to the contrary, suggests that the walkover will allow access in a much less disruptive and destructive manner. A.H. sections 10.2.7(c) and (d), governing, respectively, associated activities that have the potential to cause impacts to significant historical and archaeological resources and future project phases or activities, are not applicable to the proposed dune walkover. The preponderance of the competent, substantial, and persuasive evidence demonstrates that there will be no adverse secondary impacts associated with the construction or use of the proposed dune walkover. The evidence introduced by Petitioners was not sufficient or persuasive to support a finding that the proposed dune walkover will cause adverse secondary impacts. Adverse impacts to the maintenance of Minimum Flows and Levels: Rule 62-330.301(1)(g) The evidence introduced by Petitioners in this case was not sufficient or persuasive to support a finding that the proposed dune walkover will cause adverse impacts to the maintenance of surface or groundwater levels or surface water flows. Adverse impacts to a Work of the District: Rule 62-330.301(1)(h) The evidence introduced by Petitioners in this case was not sufficient or persuasive to support a finding that the proposed dune walkover will cause adverse impacts to a Work of the District. Capable of performing and functioning as proposed: Rule 62-330.301(1)(i) The evidence introduced by Petitioners in this case was not sufficient or persuasive to support a finding that the proposed dune walkover will not be capable of performing and functioning as proposed. Conducted by a person with the financial, legal and administrative capability of ensuring that the activity will be undertaken in accordance with the terms and conditions of the permit: Rule 62-330.301(1)(j) The evidence introduced by Petitioners in this case was not sufficient or persuasive to support a finding that the proposed dune walkover will not be conducted by persons with the financial, legal, and administrative capability of ensuring that the proposed dune walkover will be constructed in accordance with the terms and conditions of the ERP. The legal ability to undertake the activities that are encompassed by the SSL Authorization, CCCL Permit, and CCCL Waivers are being decided herein, and their lack of finality does not constitute a failure to meet this ERP permitting criteria. Comply with any applicable special basin or geographic area criteria: Rule 62-330.301(1)(k) The evidence introduced by Petitioners in this case was not sufficient or persuasive to support a finding that the proposed dune walkover will not comply with any applicable special basin or geographic area criteria. Public Interest Test - Section 373.414(1), Florida Statutes, Rule 62-330.302(1)(a), and A.H. Section 10.2.3 Section 373.414(1) provides that an applicant for an ERP must provide reasonable assurance that the permitted activity will not cause violations of state water quality standards and that such activity is not contrary to the public interest. As set forth in the discussion of rule 62- 330.301(1)(e) and A.H. section 10.2.4 above, the Applicants demonstrated that the proposed dune walkover will not cause violations of state water quality standards. Furthermore, the evidence introduced by Petitioners in this case was not sufficient or persuasive to support a finding that the proposed dune walkover will cause violations of state water quality standards. The seven factors that constitute the public interest test are established in section 373.414(1)(a), reiterated in rule 62-330.302(1)(a), and explained in greater detail in A.H. section 10.2.3. As set forth previously, some of the criteria would appear to have no relevance to this case. However, since Petitioners failed to provide any substantive narrowing of the issues in the JPS, it is necessary to go through each and every factor to ensure that some element of the ERP analysis required “pursuant to all applicable rules and statutes” does not go unaddressed.5/ Whether the activity will adversely affect the public health, safety, or welfare or the property of others: Section 373.414(1)(a)1.; Rule 62-330.302(1)(a)1.; A.H. Section 10.2.3.1 The evaluation of the factors for consideration under this element of the public interest test include environmental issues such as “mosquito control; proper disposal of solid, hazardous, domestic or industrial waste; aids to navigation; hurricane preparedness or cleanup; environmental remediation, enhancement or restoration; and similar environmentally related issues.” The evaluation also includes impacts to shellfish harvesting areas; flooding or the alleviation of flooding on the property of others; and affects on the water table that could result in the drainage of off-site wetlands or other surface waters. The evidence introduced by Petitioners in this case was not sufficient or persuasive to support a finding that the proposed dune walkover will adversely affect the public health, safety, or welfare or the property of others. Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats: Section 373.414(1)(a)2.; Rule 62-330.302(1)(a)2.; A.H. Section 10.2.3.2 A.H. section 10.2.3.2 provides that the “fish and wildlife” element of the public interest test is to be evaluated as follows: The Agency’s public interest review of that portion of a proposed activity in, on, or over wetlands and other surface waters for impacts to “the conservation of fish and wildlife, including endangered or threatened species, or their habitats” is encompassed within the required review of the entire activity under section 10.2.2, above. As set forth herein, the preponderance of the competent, substantial, and persuasive evidence demonstrates that the proposed dune walkover will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Petitioners did not prove by a preponderance of competent and substantial evidence that the Applicants failed to meet the standards set forth in section 373.414(1)(a)2., rule 62-330.302(1)(a)2., and A.H. section 10.2.3.3. Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling: Section 373.414(1)(a)3.; Rule 62- 330.302(1)(a)3.; A.H. Section 10.2.3.3 With regard to this element of the public interest test, A.H. section 10.2.3.3 provides, in pertinent part, that: In reviewing and balancing the criterion on navigation, erosion and shoaling in section 10.2.3(c), above, the Agency will evaluate whether the regulated activity located in, on or over wetlands or other surface waters will: Significantly impede navigability or enhance navigability. The Agency will consider the current navigational uses of the surface waters and will not speculate on uses that may occur in the future. Applicants proposing to construct bridges or other traversing works must address adequate horizontal and vertical clearance for the type of watercraft currently navigating the surface waters . . . . Cause or alleviate harmful erosion or shoaling . . . . Significantly impact or enhance water flow . . . . The only evidence of any form of vessels using the lagoon was the Applicants’ act of paddling or dragging the Hobie sailboat and kayaks across the lagoon to access the navigable waters of the Gulf of Mexico. Such does not constitute “current navigational uses of the surface waters.” The preponderance of the evidence in this case establishes that there is no “current” navigational use of the lagoon. No testimony or evidence was elicited that the lagoon supported any form of boating or other navigational use. No person owning property abutting the lagoon that might be affected by some restriction on their navigational rights objected to the proposed dune walkover. The evidence introduced by Petitioners in this case was not sufficient or persuasive to support a finding that the proposed dune walkover will significantly impede navigability. Ms. Mills testified that “piling supported structures are used in dynamic systems all the time. Specifically you know, because they don’t really have an effect on the movement of sand.” Her testimony is credited. Her testimony, combined with that of the Applicants’ expert witnesses regarding the nature of the area, was sufficient to establish that the proposed dune walkover will not cause harmful erosion or shoaling. Furthermore, the evidence introduced by Petitioners in this case was not sufficient or persuasive to support a finding that the proposed dune walkover will cause erosion or shoaling. The evidence introduced by Petitioners in this case was not sufficient or persuasive to support a finding that the proposed dune walkover will significantly impact or enhance water flow. Petitioners did not prove by a preponderance of competent and substantial evidence that the Applicants failed to meet the standards set forth in section 373.414(1)(a)3.; rule 62-330.302(1)(a)3.; and A.H. section 10.2.3.3. Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity: Section 373.414(1)(a)4.; Rule 62-330.302(1)(a)4.; A.H. Section 10.2.3.4 The evaluation of the factors for consideration under this element of the public interest test include adverse effects to sport or commercial fisheries or marine productivity, including the elimination or degradation of fish nursery habitat, change in ambient water temperature, change in normal salinity regime, reduction in detrital export, change in nutrient levels, or other adverse effects on populations of native aquatic organisms. The evidence introduced by Petitioners in this case was not sufficient or persuasive to support a finding that the proposed dune walkover will adversely affect sport or commercial fisheries or marine productivity. The public interest evaluation under these regulatory provisions also includes effects on “existing recreational uses of a wetland or other surface water, which could include impacts to “the current use of the waterway for boating.” Other than evidence that the Applicants had to paddle or push their shallow draft sailboat and kayaks across the lagoon to reach the Gulf, there was no evidence to establish that the lagoon has any recreational use. The DEP determined that it does not, based on the fact that the lagoon is not of a permanent depth to support navigation and was intermittently (at best) connected to the Gulf of Mexico. Ms. Mills’ testimony to that effect was persuasive, consistent with that of Mr. Kroemer, and is credited. The standards applicable to impacts to recreational uses are directed to “existing” and “current” uses. There was no evidence of anyone currently using the lagoon for recreational boating. Mr. Rood indicated that he had never seen anyone boating in the lagoon. There was no evidence that anyone else along the lagoon even had a boat. Mr. Kroemer, when asked if his neighbors could use the dune walkover to portage their boats across the lagoon testified that “I’m not aware that they have boats.” No property owners with homes along the lagoon objected to the proposed dune walkover. The evidence in this case establishes that the proposed dune walkover will not adversely affect fishing or recreational values, or marine productivity in the vicinity of the proposed Project. Whether the activity will be of a temporary or permanent nature: Section 373.414(1)(a)5.; Rule 62-330.302(1)(a)5.; A.H. Section 10.2.3.5 The proposed dune walkover is intended to provide permanent access to the Gulf of Mexico, as opposed to being a temporary structure. This finding should not be conflated with whether the proposed dune walkover is an “expendable structure” for purposes of the CCCL Permit, as will be discussed herein. Whether the activity will adversely affect or will enhance significant historical and archaeological resources: Section 373.414(1)(a)6.; Rule 62- 330.302(1)(a)6.; A.H. Section 10.2.3.6 There was no evidence introduced by Petitioners in this case to support a finding that the proposed dune walkover will affect significant historical and archaeological resources in any manner. The current condition and relative value of functions being performed by areas affected by the proposed activity: Section 373.414(1)(a)7.; Rule 62- 330.302(1)(a)7.; A.H. Section 10.2.3.7 The evidence introduced by Petitioners in this case was not sufficient or persuasive to support a finding that the proposed dune walkover will adversely affect the current condition and relative value of functions being performed by the waters of and wetlands surrounding the lagoon. The evidence in this case was almost entirely directed to nesting and feeding habitat of shorebirds frequenting the LEICWA. The preponderance of the evidence established that the areas affected by the proposed dune walkover are not conducive for nesting, feeding, or loafing by Snowy Plovers, American Oystercatchers, Black Skimmers, or Least Terns. The Applicants’ Exhibit 6, which was relied upon by each of the parties, showed no observed sightings of those species near the lagoon or the smaller water feature. There was one observed sighting of a non-threatened Wilson’s Plover near the edge of the smaller water feature, though not directly affected by the proposed dune walkover, and no observed sightings of any of the identified species of concern near the lagoon or in the waters of either water body. There was no evidence that the proposed dune walkover would affect the wading birds or shorebirds photographed by Ms. Burns. Petitioners did not prove by a preponderance of competent and substantial evidence that the Applicants failed to meet the standards set forth in section 373.414(1)(a)7.; rule 62-330.302(1)(a)7.; and A.H. section 10.2.3.7. Cumulative Impacts: Section 373.414(8); Rule 62- 330.302(1)(b); A.H. Sections 10.1.1(g) and 10.2.8 A.H. section 10.2.8 provides, in pertinent part, that: The impact on wetlands and other surface waters shall be reviewed by evaluating the impacts to water quality as set forth in section 10.1.1(c), above, and by evaluating the impacts to functions identified in section 10.2.2, above. If an applicant proposes to mitigate these adverse impacts within the same drainage basin as the impacts, and if the mitigation fully offsets these impacts, then the Agency will consider the regulated activity to have no unacceptable cumulative impacts upon wetlands and other surface waters, and consequently, the condition for issuance in section 10.1.1(g) will be satisfied. Section 373.4136 establishes that the use of mitigation credits is sufficient to offset adverse impacts for an activity in the mitigation bank service area, and provides, in pertinent part, that: The department or water management district shall establish a mitigation service area for each mitigation bank permit . . . . Except as provided herein, mitigation credits may be withdrawn and used only to offset adverse impacts in the mitigation service area. The boundaries of the mitigation service area shall depend upon the geographic area where the mitigation bank could reasonably be expected to offset adverse impacts . . . . In determining the boundaries of the mitigation service area, the department or the water management district shall consider . . . at a minimum, the extent to which the mitigation bank: * * * 3. Will provide for the long-term viability of endangered or threatened species or species of special concern; [and] * * * 5. Can reasonably be expected to offset specific types of wetland impacts within a specific geographic area. . . . * * * (c) Once a mitigation bank service area has been established by the department or a water management district for a mitigation bank, such service area shall be accepted by all water management districts, local governments, and the department. The Applicants have proposed mitigation in the form of the purchase of 0.01 saltwater forested mitigation bank credits and 0.01 saltwater herbaceous mitigation bank credits from the Pine Island Mitigation Bank. The proposed dune walkover is within the service area established for the Pine Island Mitigation Bank. The mitigation credits, which were initially calculated based on a six-foot-wide dune walkover, are more than sufficient to offset any adverse impacts of the proposed five-foot-wide dune walkover on the wetlands and surface waters in the Project area. Ms. Mills testified that the proposed dune walkover would have “[n]o adverse cumulative impacts because the project would be doing mitigation, with mitigation bank credits within the surface area established for the mitigation bank.” Her testimony established that the statutory offset criteria is applied when a project (and a mitigation bank such as the Pine Island Mitigation Bank) is on a barrier island which, because there is no “drainage” except to the Gulf of Mexico, is not within a “drainage basin.” Her testimony was persuasive, meets the statutory criteria in section 373.4136, and is accepted. There are no existing permits or pending applications for similar dune walkovers in the area. Given the presence of the LEICWA to the west, applications for similar walkovers within its boundary are unlikely and, if made, would have to comply with critical wildlife area restrictions. The evidence in this case establishes that the proposed dune walkover will not result in unacceptable cumulative impacts upon wetlands and other surface waters. Furthermore, Petitioners did not prove by a preponderance of competent and substantial evidence that the Applicants failed to meet the standards set forth in section 373.414(1)(a)7.; rule 62-330.302(1)(a)7.; and A.H. section 10.2.3.7. Elimination or Reduction of Impacts: A.H. Section 10.2.1 A.H. section 10.2.1 provides, in pertinent part, that: The following factors are considered in determining whether an application will be approved by the Agency: the degree of impact to wetland and other surface water functions caused by a proposed activity; whether the impact to these functions can be mitigated; and the practicability of design modifications for the site that could eliminate or reduce impacts to these functions, including alignment alternatives for a proposed linear system. A.H. section 10.2.1.1 provides, in pertinent part, that: The term “modification” shall not be construed as including the alternative of not implementing the activity in some form, nor shall it be construed as requiring a project that is significantly different in type or function . . . . A.H. section 10.2.1.2 provides, in pertinent part, that: The Agency will not require the applicant to implement practicable design modifications to reduce or eliminate impacts when: * * * b. The applicant proposes mitigation that implements all or part of a plan that provides regional ecological value and that provides greater long term ecological value than the area of wetland or other surface water to be adversely affected. As set forth previously, the Applicants have proposed mitigation in the form of the purchase of 0.01 saltwater forested mitigation bank credits and 0.01 saltwater herbaceous mitigation bank credits from the Pine Island Mitigation Bank. The Project area is within the service area established for the Pine Island Mitigation Bank. Ms. Mills testified that “any habitat can be used for nesting and denning, I think any impacts have been offset by the mitigation.” Her testimony is credited. The evidence was also sufficient to establish that the mitigation was in an amount that offsets the impacts of the proposed dune walkover on the lagoon, provides regional ecological value, and provides greater long-term ecological value than the area of the lagoon affected. Based on the Findings of Fact set forth herein, and as supported by a preponderance of the persuasive evidence adduced at the hearing, the Applicants were under no requirement to implement practicable design modifications to reduce or eliminate impacts from the proposed dune walkover. Despite having no obligation to do so, the Applicants did implement practicable design modifications, resulting in a realignment of the dune walkover to eliminate any encroachment on the LEICWA, the reduction of the width of the Project from six feet to five feet, and the elimination of features that resulted in a much lower and unobtrusive structure. The Applicants also agreed to permit conditions to implement construction methodologies to reduce impacts, and eliminate lighting that could affect adjacent habitats. In addition to the foregoing, Ms. Mills testified convincingly that the boardwalk in this area would serve to minimize unrestricted and unchanneled foot traffic, and direct traffic so that people are not “using other manners that aren't specifically defined causing more adverse impacts” through natural and sandy areas. Her testimony is credited. Petitioners did not prove by a preponderance of competent and substantial evidence that the Applicants failed to meet the standards set forth in A.H. sections 10.2.1 and 10.2.1.2. Environmental Resource Permit - Ultimate Finding of Fact A preponderance of the competent, substantial evidence in this case establishes that the Applicants demonstrated their entitlement to the issuance of the ERP, meeting the standards established in section 373.414, rules 62- 330.301 and 62-330.302, and the applicable sections of the A.H. Petitioners did not meet their burden of demonstrating that the ERP should not be issued. SSL Authorization The sovereignty lands at issue in this case are those that were under state ownership prior to the landward migration and attachment of the sandbar. See Fla. Admin. Code R. 18- 21.003(61). The Applicants did not dispute that a SSL Authorization was appropriate. The standards for issuance of an SSL Authorization, including a Letter of Consent Easement, are generally established in Florida Administrative Code Rule 18-21.004. Based on the entirety of the record of this proceeding, the Applicants provided reasonable assurances that the proposed dune walkover meets the requirements for the SSL Authorization. 18-21.004(1)(a) - Contrary to the public interest Rule 18-21.004(1)(a) provides that “activities on sovereignty lands must be not contrary to the public interest.” As established by the DEP: Rule 18-21.004(1)(a) requires an applicant to demonstrate that an activity proposed to be conducted on sovereignty submerged lands will not be contrary to the public interest. . . . [T]o meet this standard, it is not necessary that the applicant show that the activity is affirmatively in the "public interest, " as that term is defined in rule 18-21.003(51), Florida Administrative Code. Rather, it is sufficient that the applicant show that there are few, if any, "demonstrable environmental, social, and economic costs" of the proposed activity. Defenders of Crooked Lake, Inc. v. Krista Howard and Dep’t of Envt’l Prot., DOAH Case No. 17-5328, FO at 26 (Fla. DOAH July 5, 2018; Fla. DEP Aug. 16, 2018). As set forth in detail previously herein, the Applicants have demonstrated, by a preponderance of the competent, substantial, and persuasive evidence in the record, that the proposed dune walkover will pose no demonstrable environmental or social costs. The suggestion that the construction of the proposed dune walkover will adversely affect the economic viability of the LEICWA or the Town is, under the facts of this case, simply implausible. The facts stipulated by the parties provide that “the beach and the ecotourism generated by the potential for birdwatching is important for the Town’s economy.” However, the preponderance of the evidence demonstrates that the proposed dune walkover will have no effect on the use of the beach, shorebirds, or the LEICWA. The fact that the proposed dune walkover is a private structure does not militate against its meeting the public interest test. As stated by Ms. Mills, “it's not contrary to the Board's public interest test because the Board has outlined through its rule a procedure for a private homeowner to get consent through an easement to use Sovereign Submerged Lands.” Her testimony is credited. For the reasons set forth herein, the Applicants met the provisions of the “public interest test” established in rule 18-21.004(1)(a). 18-21.004(2) - Resource management Rule 18-21.004(2)(a) provides, in pertinent part, that: All sovereignty lands shall be considered single use lands and shall be managed primarily for the maintenance of essentially natural conditions, propagation of fish and wildlife, and traditional recreational uses such as fishing, boating, and swimming. Compatible secondary purposes and uses which will not detract from or interfere with the primary purpose may be allowed. Activities which would result in significant adverse impacts to sovereignty lands and associated resources shall not be approved unless there is no reasonable alternative and adequate mitigation is proposed. * * * (i) Activities on sovereignty lands shall be designed to minimize or eliminate adverse impacts on fish and wildlife habitat, and other natural or cultural resources. Special attention and consideration shall be given to endangered and threatened species habitat. By providing a means of channeling and making the Applicants’ existing access across sovereignty lands less disruptive and damaging to the lagoon, dunes, and bird species, the proposed dune walkover meets the principles that the sovereignty lands be maintained in their essentially natural conditions, and that they be conducive to the propagation of fish and wildlife. The proposed dune walkover involves use of sovereignty lands to facilitate access to the waters of the Gulf of Mexico for traditional uses such as fishing, boating, and swimming. The testimony of the Applicants was sufficient to demonstrate that there was no reasonable alternative to the proposed dune walkover, other than the more disruptive and destructive means of providing access to the Gulf of Mexico currently in use. Though a strong argument can be made that the proposed dune walkover has fewer impacts, and is more protective of sovereignty lands than the Applicants’ existing (and lawful) means of access, sufficient mitigation was provided as described herein. The Project, by virtue of steps taken to minimize its footprint to the minimum necessary to allow access by wheelchair or mobility device, to remove handrails, and by construction methods, including construction from the decking, has been designed to minimize destruction of wetland vegetation on sovereignty lands. The modifications to the Project, including the lowering of the dune walkover; elimination of handrails; the agreement to forego lighting; the steps taken to eliminate effects on water quality; and the termination of the dune walkover in a densely vegetated area not favored by shorebirds, have minimized adverse impacts on fish and wildlife habitat, including habitat for endangered and threatened species of shorebirds and marine turtles. For the reasons set forth herein, the Applicants met the provisions of the “resource management” provisions established in rule 18-21.004(2). 18-21.004(3) - Riparian rights Rule 18-21.004(3) provides that activities undertaken on sovereignty lands be conducted so as to not unreasonably infringe upon traditional, common law riparian rights of upland property owners adjacent to sovereignty submerged lands. Section 253.141 provides that “[t]he land to which the owner holds title must extend to the ordinary high watermark of the navigable water in order that riparian rights may attach.” Neither the Applicants nor their neighbors hold title to the mean high water (“MHW”) mark of the Gulf of Mexico.6/ The MHW line, as of December 1, 2014, was at what is generally depicted as the shoreline of the Gulf of Mexico. The two more upland water features, i.e., the lagoon and the smaller body, both labeled as “Pond” on the 2014 mean high water survey, were well landward of the MHW. The lagoon, which is normally isolated from the Gulf of Mexico, is not of a depth to be routinely navigable in fact, and frequently has so little water as to require that even kayaks be dragged across, is simply not a navigable water body. Pursuant to section 253.141, neither the Applicants nor their neighbors currently have riparian rights to the lagoon or the smaller feature. Even if it were to be determined that the Applicants’ neighbors had riparian rights to the lagoon, any restriction or infringement on traditional rights of ingress, egress, boating, bathing, and fishing would not be “unreasonable.” The evidence established that adjacent upland property owners did not have vessels that would be expected to use the lagoon. There was no suggestion that the ability to traverse the lagoon to access the navigable waters of the Gulf of Mexico, much as the Applicants do now, would be affected. The proposed dune walkover would not restrict bathing or fishing, and the photographic and testimonial evidence established not only that such activities are not engaged in as a matter of fact, but that the shallow, isolated body of water is not conducive to such activities. Finally, in determining whether any restriction on riparian rights -- even if they existed -- was “unreasonable,” it is not inconsequential that no property owners fronting the lagoon objected to or challenged the proposed Project. The evidence in this case established that the lagoon is not a navigable body of water. The MHW line is waterward of the lagoon, and the property lines of the Applicants and their neighbors do not extend to the MHW line. Thus, proximity to that water feature does not serve to confer “riparian” rights on them. Even if the adjacent upland property owners had riparian rights to the lagoon, under the facts of this case, any restriction on such rights created by the proposed dune walkover would not be “unreasonable.” Finally, the mechanism for enforcing such rights would be with the adjacent upland owners, not Petitioners. For the reasons set forth herein, the Applicants met the provisions of the “riparian rights” provisions established in rule 18-21.004(3). 18-21.004(7) - General conditions As established by a preponderance of the evidence, and as previously set forth in the Findings of Fact herein, the proposed dune walkover has been designed, and is subject to conditions as to its construction, that will avoid and minimize adverse impacts to sovereignty submerged lands and resources. Thus, the Applicants met the standards for issuance of the SSL Authorization established in rule 18-21.004(7)(d). As established by a preponderance of the evidence, and as previously set forth in the Findings of Fact herein, the proposed dune walkover has been designed, is subject to conditions as to its construction, and is intended for use in a manner that will not adversely affect shorebirds or sea turtles. Thus, the Applicants met the standards for issuance of the SSL Authorization established in rule 18-21.004(7)(e). As established by a preponderance of the evidence, and as previously set forth in the Findings of Fact herein, the lagoon is not a navigable body of water. Furthermore, even if it were navigable, any restriction created by the proposed dune walkover will not be “unreasonable.” Finally, if the adjacent upland owners holding such riparian rights believe such rights to have been infringed, despite their not having heretofore objected to the proposed Project, and a court of competent jurisdiction determines that riparian rights have been unlawfully affected, the DEP has the authority to require that it be modified in accordance with the court’s decision. Thus, the Applicants met the standards for issuance of the SSL Authorization established in rule 18-21.004(7)(f). As established by a preponderance of the evidence, and as previously set forth in the Findings of Fact herein, the proposed dune walkover will not create a navigational hazard. Unlike the “public interest” navigational standards for obtaining an ERP, the “navigational hazard” standard for obtaining a SSL Authorization pursuant to rule 18-21.004(7), though not defined, includes such things as unsafe conditions adjacent to docks and boat slips. Pirtle v. Voss and Dep’t of Envtl. Prot., Case No. 13-0515 (Fla. DOAH Sep. 23, 2013; Fla. DEP Dec. 26, 2013). A mere inconvenience does not constitute the type of navigational hazard contemplated by the rule. Woolshlager v. Rockman and Dep’t of Envtl. Prot., Case No. 06-3296 (Fla. DOAH May 5, 2007; Fla. DEP June 22, 2007). Since there is no proven “navigation” in the lagoon -- other than dragging or, when water levels allow, paddling small boats and kayaks across on the way to accessing the navigable waters of the Gulf of Mexico -- there is no navigational hazard created by the proposed dune walkover. Thus, the Applicants met the standards for issuance of the SSL Authorization established in rule 18-21.004(7)(g). Finally, as established by a preponderance of the evidence, and as previously set forth in the Findings of Fact herein, the proposed dune walkover has been designed, is subject to conditions as to its construction, and is intended for the water dependent purpose of traversing the lagoon to allow access to the Gulf of Mexico. Thus, the Applicants met the standards for issuance of the SSL Authorization established in rule 18-21.004(7)(i). SSL Authorization - Ultimate Finding of Fact A preponderance of the competent, substantial evidence in this case establishes that the Applicants demonstrated their entitlement to the issuance of the Letter of Consent Easement, meeting the standards established in chapter 253 and rule 18-21. CCCL Permit DEP has established a CCCL on Little Estero Island. A CCCL permit is required before a person may conduct construction activities beyond that line. Permitting Procedures In the Joint Prehearing Stipulation, Petitioners asserted that “the applicable and relevant procedures for granting a coastal construction control line permit application were not appropriately followed.” However, Petitioners failed to present competent, substantial, and persuasive evidence of any failure by DEP to follow its CCCL permitting procedures. Conversely, DEP established that the project met all of the applicable siting and design criteria, and that DEP complied with statutory and rule criteria and procedures for reviewing and issuing the CCCL Permit. Petitioners have argued that the CCCL Permit should have been procedurally denied because the CCCL Waiver was timely challenged. DEP included special conditions requiring the Applicants to relinquish the CCCL Permit if the CCCL Waivers were denied. In addition, the CCCL Permit does not become final until a Notice to Proceed is issued, which is also conditioned on the CCCL Waivers becoming final. Based on the fact that construction of the dune walkover cannot commence until all permits and authorizations are issued, there was no material error in procedure arising from DEP sequentially issuing the CCCL Waivers and the CCCL Permit, thus, allowing for their consolidation and litigation without unnecessary delay and duplication. Permitting Standards The Applicants have provided reasonable assurances that the proposed dune walkover meets the requirements for a permit for construction seaward of the coastal construction control line established in section 161.053, Florida Statutes, and Florida Administrative Code Chapter 62B-33. The proposed dune walkover meets the requirements established by rule as a minor structure, and was designed in accordance with DEP’s Beach and Dune Walkover Guidelines. It is designed to be expendable. The size, height, and elimination of concrete anchors were proposed to minimize resistance to forces associated with high frequency storms, and to allow the dune walkover to break away when subjected to such forces. It meets every condition proposed by the DEP and the FFWCC. Its minimal size and design is expected to have a minor impact on the beach and dune system. A preponderance of the evidence established that the proposed dune walkover will not cause a measurable interference with the natural functioning of the coastal system. A preponderance of the evidence established that the Project, as a result of its size, profile, and location, will have no measurable affect on the existing shoreline change rate. A preponderance of the evidence further established that the proposed dune walkover is not reasonably expected to significantly interfere with the ability of the coastal system to recover from a coastal storm. A preponderance of the evidence established that the Project would have no measurable effect of the topography or the vegetation of the area. As such, there is no evidence to suggest that the proposed dune walkover would render the dune system unstable or subject to catastrophic failure, or that the protective value of the dune system will be significantly lowered. To the contrary, by lessening pedestrian traffic through the dunes, and channeling traffic at its waterward point of termination, the proposed dune walkover will be protective of the dune system and the coastal system. In that regard, DEP generally encourages dune walkovers to protect the beach and dune system. As a result of the elimination of lighting, of the restriction on construction during turtle nesting season, and of the Applicants’ agreement to all conditions suggested by the FFWCC, the evidence firmly established that the proposed dune walkover will not, by any reasonable measure, result in death or injury to marine turtles, and will result in no significant habitat modification or degradation that kills or injures marine turtles by significantly impairing essential behavioral patterns, such as breeding, feeding, or sheltering. The Project will not result in the removal or destruction of native vegetation. The evidence was sufficient to demonstrate that the Project will not destabilize the beach and dune system. As set forth herein, the greater weight of the evidence establishes that the dune walkover will provide greater protection of the beach and dune system than the Applicants’ existing means of access across the lagoon and dunes. The construction of the dune walkover will cause no significant adverse impact, as defined in rule 62B-33.002(26), to the beach and dune system due to increased erosion by wind or water. The proposed dune walkover does not require any excavation. There will be no net excavation or removal of in situ sandy soils of the beach and dune system, and no net excavation of the in situ sandy soils seaward of the control line or 50-foot setback. The proposed dune walkover does not include any water directing devices. The preponderance of the competent substantial evidence established that the project will not direct discharges of water seaward in a manner that would result in significant adverse impacts. The evidence established that the proposed Project will result in no erosion-induced surface water runoff within the beach and dune system. The evidence establishes that, as a general matter, piling-supported structures do not have an effect on the flow of water. However, in extreme events, water encountering an obstacle can cause the movement of sand around the obstacle. The expendability of a structure and its ability to break away prevents scour from occurring and is designed to minimize impacts. The preponderance of the competent, substantial, and persuasive evidence establishes that the Project will not increase scour so as to cause a significant adverse impact, and that any effect of the Project on the coastal processes of the area would be, at most, de minimis. The design of the proposed dune walkover minimizes the amount of materials that might create debris in the event of a storm. The Applicants removed the handrails, decreased the width of the dune walkover from six feet to five feet, and eliminated pickets and non-structural members. The lowering of the dune walkover, and replacement of the stairs with a ramp that minimizes lift forces, have sufficiently reduced the potential for wind and waterborne missiles. The suggestion that the dune walkover will, in the event of a high frequency storm, form destructive airborne missiles is simply not credible. Granted, the proposed dune walkover is designed to break apart in the face of destructive storm forces. If every piece of storm-generated debris was a sufficient basis upon which to deny a CCCL permit, then minor structures would be prohibited, since all minor structures are designed to be expendable and to break away in a high-frequency storm. Some degree of reason must be applied. The Applicants in this case demonstrated that the proposed dune walkover would not itself be such to create significant adverse impacts if subjected to the destructive forces of such a storm. The proposed dune walkover terminates more than 260 feet from the Gulf of Mexico, and will not interfere with the public’s right to laterally traverse the sandy beach of the Gulf of Mexico. The Project area is in a cycle of accretion, has historically accreted, is currently accreting at roughly 28 feet per year, and is expected to continue accreting. The suggestion that, within 15 years, the shoreline of the Gulf of Mexico waterward of the Applicants’ properties will retreat, and that the proposed dune walkover would thence reach into the Gulf, blocking pedestrian access to the shoreline, was not supported by quantitative analyses, and was not sufficient to outweigh evidence to the contrary presented by the Applicants. The Applicants offered an assessment and report based on past and current conditions at the monument level, which included modeling and sediment budgets showing projected changes of the Project area, none of which support a finding that the shoreline will erode or retreat, or that the proposed dune walkover would be expected to interfere with public access to the shoreline. As set forth previously herein, the Project’s proposed design, location, and construction methods provide reasonable assurance that there will be no adverse impact to marine turtles, or the coastal system. The Applicants provided sufficient evidence of ownership, in that they are the upland owners and the recipients of the SSL Authorization, being addressed concurrently herewith. CCCL Permit - Ultimate Finding of Fact A preponderance of the competent, substantial evidence in this case establishes that the Applicants demonstrated their entitlement to the issuance of the CCCL Permit, meeting the standards established in chapter 161 and chapter 62B-33. CCCL Waivers The CCCL Waivers at issue affect the timing requirements of the submission of ownership and land use approvals. The CCCL Waivers do not waive the submission of the documents, or the requirement that the documents be provided prior to any construction of the proposed dune walkover. A preponderance of the competent substantial evidence establishes that the underlying purpose of chapter 161 and rule 62B-33.008, will be met because construction cannot begin until the Applicants satisfy all substantive requirements for the CCCL Permit. At the time the CCCL Waivers were requested, the Consolidated Permit was being litigated (DOAH Case Nos. 16-7148 and 16-7149), as was the Town’s denial of the land use letter requested by the Applicants to comply with the CCCL Permit application requirement. Strict adherence to the requirement that the documents at issue be submitted at the time of the application would have required the Applicants to sequentially litigate issues related to the proposed dune walkover, increasing the time and expense of litigation on all involved. Petitioners presented no evidence demonstrating how allowing the Applicants to submit the documents prior to being given a Notice to Proceed would adversely affect the Department’s ability to carry out the objective of the underlying statutes, or their substantial interests in ensuring the legality of the proposed dune walkover. The timing requirement for evidence of ownership and local government approval was appropriately waived to allow for the efficient and cost-effective litigation of all issues related to the proposed dune walkover. To piecemeal the litigation would unnecessarily increase the time, cost, and administrative burden of litigation for no meaningful or substantive reason, and would provide the challengers with an unwarranted litigation advantage. The CCCL Waivers affect no substantive or substantial interests of any party to this case. They neither lessen the necessary indicia of ownership and control required of the Applicants, nor affect the Town’s ability to lawfully enforce its local zoning codes. The waiver to the timing requirements allows for the substantive permitting requirements to be met, without frustrating the Applicants’ right to a timely final decision on the Consolidated Permit and CCCL Permit. The CCCL Waiver does not allow for any construction to begin without Applicants first meeting both the ownership requirement and the local government zoning confirmation requirement. Therefore, the CCCL Waivers are consistent with the purpose and intent of the governing statutes and rules, and result in no injury to Petitioners’ legitimate interests. CCCL Waivers - Ultimate Finding of Fact A preponderance of the competent, substantial evidence in this case establishes that the CCCL Waivers serve to avoid substantial hardship to the Applicants, and advance principles of fairness by maintaining a fair, equal, and cost- effective forum for litigation between the parties regarding the proposed dune walkover. As such, the Applicants demonstrated their entitlement to the issuance of the CCCL Waivers, meeting the standards established in section 120.542.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection; enter a final order approving the Consolidated Environmental Resource Permit No. 36-0320034-001 and Letter of Consent Easement to Use Sovereign Submerged Lands No. 360239365, subject to the general and specific conditions set forth therein; enter a final order approving the Permit for Construction or Other Activities Pursuant to Section 161.053, Florida Statutes, No. LE-1567, subject to the general and specific conditions set forth therein; enter a final order approving the Final Order Granting Petitions for Waivers, File No. LE-1567V; issue a Notice to Proceed authorizing the Applicants to commence construction of the proposed dune walkover; and dismiss the petitions for hearing filed by the Town of Fort Myers Beach in each of these consolidated cases. DONE AND ENTERED this 20th day of March, 2019, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of March, 2019.
Recommendation Based upon the above findings of fact and conclusions of law it is recommended that the permit requested be issued in accordance with the recommendations and special provisions set forth in the staff report (attached thereto). Respectfully submitted this 3rd day of November, 1975, in Tallahassee, Florida. CHARLES C. ADAMS 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 3rd day of November, 1975. COPIES FURNISHED: Thomas C. Garwood, Jr., Esquire Post Office Box 231 Orlando, Florida 32802 John Wheeler, Esquire Post Office Box V West Palm Beach, Florida
The Issue The issue in this case is whether Falconer is authorized to keep finger piers, a wooden deck and an enclosed walkway, which were constructed without permits within the landward extent of Elligraw Bayou, a Class 3 waterbody located in Sarasota County, upon the payment of a $3600 penalty. Specifically, the issue is whether the piers, deck and covered walkway, as built, would have been permitted by the Department if properly applied for, and whether Falconer has provided reasonable assurances that these structures, and the alteration of mangroves in connection therewith, will not violate state water quality standards, and will not be contrary to the public interest as provided in Section 403.918(2), Florida Statutes. POSITION OF PARTIES This controversy between the parties arises out of the entry of a Consent Order between the Department and Falconer, to which the County objects. It is the County's position that the Department abused its discretion by attempting to authorize unpermitted activities without requiring compliance with permitting criteria and standards. Specifically, the County contends that Falconer has failed to provide, and the Department has not required, reasonable assurances based on plans, test results or other information that the structures in or over Elligraw Bayou, as well as Falconer's alteration of mangroves, will not violate state water quality standards, and will not be contrary to the public interest. The Department and Falconer contend this is strictly an enforcement case which settles claims of violations the Department had against Falconer, and that this is not a case involving a permit application. The Department urges that it exercised prosecutorial discretion in the procedure that it followed in settling this enforcement matter.
Findings Of Fact The following findings of fact are based upon the stipulation of the parties: The Department is the administrative agency of the State of Florida charged with the responsibility to protect Florida's air and water resources, and to administer and enforce Chapter 403, Florida Statutes, and the regulations promulgated thereunder contained in Chapter 17, Florida Administrative Code. Falconer is the record owner of real property at the northwest corner of the intersection of Southpointe Drive and U.S. Highway 41 in Sarasota County, being in Section 21, Township 37 South, Range 18 East. Sarasota County is a chartered political subdivision of the State of Florida with all powers provided by law. Sarasota County has standing to bring this action. In May of 1963, Sarasota County acquired from Falconer's predecessor in title a perpetual nonexclusive easement over certain lands upon the property described in Finding of Fact 2. In July of 1973, Falconer acquired title to the property described in Finding of Fact 2, subject to the easement described in Finding of Fact 4. Falconer's property is located within the landward extent of Elligraw Bayou, which is a Class 3 state water as defined in the Florida Administrative Code, but the water does not bear the designation of Outstanding Florida Water as defined in the Florida Administrative Code. Unless exempt, a permit from the Department is required to dredge or fill within the landward extent of Elligraw Bayou, pursuant to applicable law and rules. Falconer received Permit No. DF58-32115-3E, dated March 3, 1981, to construct a commercial floating dock covering approximately 1,856 square feet on Elligraw Bayou. He did not build the floating dock to the size and configuration approved in the permit described in Finding of Fact 7. Falconer caused or allowed the installation of twelve stationary finger piers and one wooden deck within the landward extent of Elligraw Bayou between June 1981 and November 1982. However, he did not have a permit from the Department to construct these twelve finger piers and the wooden deck within the landward extent of state waters and Elligraw Bayou. Falconer caused or allowed the construction of an enclosed walkway over a drainage easement within the landward extent of Elligraw Bayou, and parts of the poured cement base foundation of the walkway are also within the landward extent of Elligraw Bayou. The cement was poured around the base of two mangroves, and a total of four mangroves were altered during construction. He did not have a permit from the Department for any dredging and/or filling within the landward extent of Elligraw Bayou in connection with the construction of the enclosed walkway described in Finding of Fact 11. Falconer did not have a permit to alter mangroves. The Department did not require, and Falconer did not submit any plans, test results or other information regarding the impact of the twelve finger piers, wooden deck, the enclosed walkway or the altered mangroves upon the water quality of Elligraw Bayou. Additionally, the Department did not require, and Falconer did not submit a hydrographic study demonstrating the flow of water within Elligraw Bayou, predicting the effect of dredging and/or filling on the flow of water, or predicting areas of erosion or shoaling. On June 3, 1986, the Department and Falconer entered into a Consent Order regarding the unpermitted activities described in Findings of Fact 8 through 13, above. The County timely filed a Petition for Formal Hearing challenging the entry of the above-referenced Consent Order. Respondent Falconer has complied with the requirements of the Consent Order. The County did not file a petition challenging the original Department permit referred to in Finding of Fact 7. The following findings of fact are based upon the evidence presented at hearing, as well as the demeanor and credibility of witnesses: On February 5, 1986, Eva Bailey of the Department's enforcement section inspected Falconer's property, and she again inspected the site on November 12, 1986. Regarding the finger piers, Bailey observed that there had been no adverse impact on the littoral zone, and no water quality or other environmental damage as a result of their construction. She similarly found that alteration of mangroves during the construction process did not result in any observed environmental damage. Only the columns associated with the walkway encroach upon the Department's jurisdiction, and Bailey found no significant adverse impact on the littoral zone resulting from the walkway construction. In fact, she found that the walkway support columns are providing a habitat for water species. According to Bailey, there has been no shoaling or erosion as a result of Falconer's construction, there has been no adverse affect on fish or wildlife, navigation has not been impeded, and there has been no damage to the public health, safety or welfare. Bailey recommended that the Department enter into an agreement with Falconer after discussing the matter with James R. Brice, a supervisor with the Department at the time. He had inspected the area in April 1985, and concluded that it was permittable. Brice confirmed Bailey's testimony that Falconer's construction has not resulted in erosion, shoaling, damage to the public health, safety or welfare, damage to fish or wildlife, a degradation of water quality, or any impairment to navigation. At the time of his inspection in April 1985, Brice referred the matter to the enforcement section because the walkway footings had been built in state waters without a permit. Neither a violation warning notice, or a formal notice of violation, were ever issued by the Department to Falconer regarding this construction, according to Craig McArthur, Bailey's supervisor in early 1986 when she conducted her inspection and recommended the issuance of the Consent Order. Thus, enforcement proceedings were never formally initiated by the Department against Falconer. Rather, Brice visited the site in April 1985 in response to complaints, and requested the inspection which Bailey conducted in February 1986. Since both Bailey and Brice found conditions which lead the Department to conclude that the construction was permittable, an agreement with Falconer was pursued by the Department which then lead to the Consent Order. Under the terms of the Consent Order, Falconer would be authorized to retain the finger piers and walkway without any modifications, in return for payment of $3600. McArthur testified that the permittability of construction is an essential factor in, and precondition for, any Consent Order which does not require modifications. Falconer's property is located at the enclosed end of Elligraw Bayou. A restaurant, shopping area, and spaces for associated parking are located on the upland portion of the property. Falconer has leased the finger piers, as well as the area surrounding certain floating docks not at issue in this case, to a sailboat sales company for use as a marina. There are no fuel facilities for boats and live-aboard boats are not permitted on the leased premises. Due to the controversy and uncertainty concerning the continued use of the finger piers, the sailboat sales company will not renew its current lease, but Falconer testified he intends to lease the facility to another sailboat sales company. The cost to construct the finger piers was approximately $11,000, and construction costs associated with the enclosed walkway were approximately $75,000. The walkway connects the restaurant with the piers, floating docks and parking area, and was constructed, in part, over the County's drainage easement pursuant to County building permit 114-U in late 1984 and early 1985. Elligraw Bayou was deeply dredged by the County in 1979. Its banks are vertical without any natural sloping. It serves as the receiving body for a 660 acre drainage basin for water flowing from highway culverts and upland drainage ditches. The water in the Bayou is murky and one cannot see the bottom due to runoff from U.S. 41 and surrounding uplands which flows into Elligraw Bayou through an open drainage ditch. During a ten year storm event, 150 to 160 cubic feet per second of runoff would be expected to flow into the Bayou. According to Charles Goode, Sarasota County Engineer and Director of Transportation, the covered walkway which Falconer has constructed will inhibit the County's future maintenance dredging of Elligraw Bayou and the drainage ditch leading to the Bayou. The use of a drag-line for maintenance dredging of the Bayou will no longer be possible, as it was in 1979. Regular maintenance of drainage ditches is essential to maintain the natural flow of runoff and prevent upland flooding. The County will no longer be able to use track mounted equipment to maintain the ditch leading into Elligraw Bayou, but other, more labor intensive, methods are available. The County does not regularly maintain this ditch. Manatees have been sited in the general vicinity of Elligraw Bayou, although there is no evidence of any sitings in the Bayou itself. In approximately 1982, the Department required Falconer to place signs in the Bayou to warn boaters about manatees, and Falconer complied. The manatee is an endangered species and is attracted to fresh water, such as exists in the Bayou. Increased motor boat traffic is a danger to manatees, but there is no evidence of any increase in such traffic due to Falconer's construction. The Director of Natural Resources Management for Sarasota County, Jack Merriam, testified that he has not heard of any reports of navigation problems in Elligraw Bayou, or seen any evidence of accidents since Falconer completed the construction here at issue, despite the fact that there is only a thirty foot width available for navigation in the Bayou at one point. However, as an expert in the impact on navigation of coastal structures, Merriam testified that a thirty foot area would not be a safe area in which to navigate under certain conditions, and that the finger piers present significant-navigational problems. No study has been made of boating traffic in Elligraw Bayou, however, to determine if unsafe conditions actually exist in this Bayou. Falconer cooperated fully with the Department throughout these proceedings in seeking its authorization for the construction here at issue.
Recommendation Based upon the foregoing, it is recommended that the Department issue a Final Order approving the Consent Order which it has previously executed with Ronald W. Falconer. DONE AND ENTERED this 22nd of January 1987 in Tallahassee, Florida. DONALD D. CONN 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 22nd day of January 1987. APPENDIX (DOAH Case No. 86-2462) Rulings on Proposed Findings of Fact filed by Sarasota County: Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Rejected as cumulative and unnecessary. Adopted in Finding of Fact 5. Adopted in Finding of Fact 6. 5 Adopted in Finding of Fact 7. Adopted in Finding of Fact 5. Adopted in Finding of Fact 9. Adopted in Finding of Fact 10. Adopted in Findings of Fact 11, 24. 13-14 Adopted in Finding of Fact 11. Rejected since this is a conclusion of law. Adopted in Finding of Fact 12. Adopted in Finding of Fact 13. 15 Adopted in Finding of Fact 20. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 14. 21-22 Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 14. Rejected as irrelevant and otherwise addressed in Finding of Fact 22. 25-34 Adopted in Findings of Fact 14, 21 but otherwise rejected as irrelevant and unnecessary. 35 Adopted in Finding of Fact 23. 36-37 Rejected as irrelevant and otherwise simply a summation of testimony. 35 Adopted in Finding of Fact 7, but otherwise rejected as irrelevant and not based on competent substantial evidence. Adopted in Finding of Fact 14. Rejected as irrelevant and unnecessary. 41-43 Adopted in Finding of Fact 25. 44-46 Adopted in Finding of Fact 26. 47 Adopted in Finding of Fact 25 but otherwise rejected as cumulative and not based on competent substantial evidence. 45-50 Adopted in Finding of Fact 25. 51-56 Adopted in Finding of Fact 27, but otherwise rejected as irrelevant and unnecessary. Rulings on Proposed Findings of Fact filed on behalf of the Department of Environmental Regulation: Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 6. Adopted in Findings of Fact 7-9. Adopted in Findings of Fact 10-13. Adopted in Findings of Fact 14, 15. 5 Adopted in Findings of Fact 16-19. Adopted in Finding of Fact 20. Adopted in Finding of Fact 21. 11-12 Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 22. Adopted in Findings of Fact 20, 25. Adopted in Finding of Fact 20. 16-17 Adopted in Finding of Fact 27, but otherwise rejected as unnecessary and cumulative. Adopted in Findings of Fact 20, 21, 25. Adopted in Finding of Fact 22. Adopted in Findings of Fact 20-22. Adopted in Findings of Fact 22, 29. Adopted in Finding of Fact 20. Adopted in Finding of Fact 25. Adopted in Findings of Fact 23, 27. Rulings on Proposed Findings of Fact filed on behalf of Ronald W. Falconer: Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in Findings of Fact 2, 6. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Findings of Fact 5, 9. Adopted in Finding of Fact 27, but otherwise rejected as irrelevant and unnecessary. Adopted in part in Findings of Fact 11, 24, but otherwise rejected as irrelevant and unnecessary. 12-13 Adopted in part in Finding of Fact 29, but otherwise rejected as Irrelevant and unnecessary. Rejected as irrelevant and unnecessary. Adopted in part in Findings of Fact 14-16, but otherwise rejected in Finding of Fact 22. Adopted in Findings of Fact 14-16. Adopted in Findings of Fact 15, 20-22, 29. 15-20 Adopted in Findings of Fact 20, 21. Adopted in Findings of Fact 20, 21, 25. Adopted in Findings of Fact 20, 21. Adopted in Findings of Fact 20, 21, 25. Adopted in part in Finding of Fact 24, but otherwise rejected as irrelevant. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 24. 27-25 Rejected as irrelevant and unnecessary. 29-31 Adopted in part in Findings of Fact 23, 25, but otherwise rejected as irrelevant and unnecessary. Adopted in Finding of Fact 4. Adopted in Finding of Fact 26. Rejected as irrelevant and unnecessary. COPIES FURNISHED: Wallace L. Storey, Esquire David M. Levin, Esquire P. O. Box 5 Sarasota, FL 33575 David K. Thulman, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 William M. Hereford, Esquire 1299 South Tamiami Trail, #1233 Sarasota, FL 33579 Dale Twachtmann Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 =================================================================
Findings Of Fact This application is a request for a consumptive water use permit for six wells at the following locations: LATITUDE LONGITUDE 28 degrees 20' 50" 82 degrees 41' 36" (hereinafter referred to as Garden Terrace No.1) 28 degrees 20' 50" 82 degrees 41' 35" (hereinafter referred to as Garden Terrace No.2) 28 degrees 20' 55" 82 degrees 39' 11" (hereinafter referred to as Parkwood Acres No.1) 28 degrees 21' 20" 82 degrees 39' 11" (hereinafter referred to as Parkwood Acres No.2) 28 degrees 21' 49" 82 degrees 38' 56" (hereinafter referred to as New Well No.1) 28 degrees 21' 50" 82 degrees 38' 56" (hereinafter referred to as New Well No.2) Although included in the application, it appears from the record of this proceeding that Garden Terrace No. 1 is to be abandoned by applicant upon completion of its new facilities and therefore is not intended for inclusion in any consumptive water use permit issued pursuant hereto. Further, it appears from the records that the applicant intends to use Garden Terrace No. 2 as an emergency standby supply well only and therefore its average daily withdrawal as reflected on the application is not intended to be included in a consumptive water use permit issued pursuant hereto. Therefore, with those amendments the application seeks, from a total of five wells, a maximum daily withdrawal of 1,501,000 gallons and an average daily withdrawal of 650,000 gallons. The use of this water is for public water supply and appears to be a reasonable, beneficial use consistent with the public interest and not interfering with any legal use of water existing at the time of the application. Further, according to testimony of the staff of the Southwest Florida Water Management District it does not appear that any of the matters set forth in Subsection 16J-2.11(2), (3) or (4), F.S., exist so as to require the denial of this permit. The staff recommendation is that this permit be granted for a maximum daily withdrawal of 1.50 million gallons per day and an average daily withdrawal of .650 million gallons per day. The staff recommendations are subject to the following conditions: That all individual connections to the system be metered. That the permittee shall install totalizing flow meters of the propeller driven type on all withdrawal points covered by this permit with the exception of those wells which are currently gaged together using a single meter. That the permittee shall submit to the District a record of his pumpage for each meter. Said pumpage shall be read on a monthly basis and submitted quarterly to the District by April 15, July 15, October 15, and January 15, for each preceding calendar quarter. That the permittee have water samples from all wells permitted analyzed for chloride on a monthly basis and results submitted to the District by April 15, July 15, October 15 and January 15 for each preceding calendar quarter. That to promote good water management and avoid salt water intrusion that the water be withdrawn at an average of .217 million gallons per day from each of the three following wells: Parkwood Acres Well No. 1, Parkwood Acres Well No. 2, and New Well No. 1. New Well No. 2 shall be operated only to meet peak demand. That Garden Terrace Well No. 2 be used only as an emergency standby well. The applicant entered no objections to the conditions set forth above nor were there any objections from members of the public to the issuance of this consumptive water use permit.
Recommendation It is hereby RECOMMENDED that a consumptive use permit be issued for the five subject wells for the withdrawal of 1.30 mgd maximum daily withdrawal and .65 mgd, average daily withdrawal subject to the conditions set forth in paragraph 4 above. DONE and ORDERED this 15th day of July, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District P.O. Box 457 Brooksville, Florida 33512 Delmar Water Corporation 731 West Main Street New Port Richey, Florida 33552
The Issue Appellant raises three issues on appeal: (1) whether the Commission departed from the essential requirements of the law by determining that VOF's proposed swimming pool is not part of a "resort hotel"; (2) whether the Commission departed from the essential requirements of the law by determining that VOF's proposed swimming pool is an inappropriate use in the Destination Resort (DR) zoning district; and (3) whether the Commission denied VOF due process by allowing Intervenors to present evidence at the Commission hearing on July 13, 2011. For the reasons expressed below, the Commission did not depart from the essential requirements of the law when it rendered Resolution No. P29-11, and it did not deny VOF due process during its hearing.
The Issue The issue is whether to approve an Environmental Resource Permit (ERP) modification for the construction of a surface water management system, to be issued to Respondent, Miromar Lakes, LLC (Miromar), which will serve a 29.08-acre single- family residential development known as The Peninsula Phase IV (Phase IV) located in Lee County, Florida.
Findings Of Fact The Parties Miromar is a Florida limited liability corporation that owns property in the Miromar Lakes community in Lee County on which a development known as Phase IV will be constructed. Miromar is the applicant for the Phase IV permit. The District is a government entity with the power and duty to exercise regulatory jurisdiction over the proposed project pursuant to part IV, chapter 373, Florida Statutes, and title 40E, Florida Administrative Code. In implementing this power and duty, the District has adopted the Applicant's Handbook (AH) to provide standards and guidance to applicants. Alico is a Florida limited liability corporation with its principal place of business in Fort Myers, Florida. It is the owner of property immediately adjacent to and north of Miromar's property. Respondents have stipulated to the facts necessary to establish Alico's standing. The Conceptual Permit This case concerns Miromar's application to modify a conceptual permit issued by the District more than 15 years ago. On June 10, 1999, the District issued ERP Permit No. 36-03568-P, a conceptual approval permit for the development of a large, mixed-use residential development with a golf course, known as Miromar Lakes, that lies east of Interstate 75 (I-75), south of Alico Road, and north of Florida Gulf Coast University. The permit also approved a surface water management system designed to serve a 1481.1-acre mixed-use development within Miromar Lakes. Alico asserts that the permit is so vague in future development details that it is impossible to determine whether Phase IV is consistent with its terms and conditions. However, the 1999 permit was not contested, and any attempt in this proceeding to challenge that permit, or subsequent modifications to the permit that are now final, is untimely. A conceptual permit is available to applicants who wish to have their design concept approved for a master plan or future plan. So long as the future phases are consistent with the conceptual permit and there are no changes to applicable state water quality standards or special basin criteria, the applicant does not need to reapply under the current rules for subsequent phases. Instead, it allows an applicant to take advantage of the rules in effect at the time of the original permit issuance. A conceptual permit typically leaves construction details to future development decisions. As District witness Waterhouse explained, this is "the nature of a conceptual permit." Because the landowner does not know the precise manner in which the property will be developed years down the road, "it doesn't make sense to force the landowner to pretend that they do because it's a pretty good bet that those things are going to change to some extent in the future." By way of example, Waterhouse noted that "[a]s long as it's single family proposed then and it's proposed now, I would characterize that as sufficient detail." It is not surprising, then, that the 1999 permit contains very little detail regarding the existence, location, or development of roads, lots, a stormwater management system, or grading, and that the construction permit for Phase IV has far more detail than the conceptual permit. Even Alico's expert agreed that there is no requirement that a conceptual permit include the details of each subsequent construction phase. A fair inference to draw is that the District intended for the developer to have considerable latitude in developing the large tract of undeveloped land, phase by phase, over the life of the conceptual permit. The 1999 permit has been modified over 60 times since its issuance, and to date, significant portions of Miromar Lakes have been constructed. Except for the current, on-going feud between Miromar and Alico over several recent or pending applications (see Case Nos. 15-1050, 15-3937, and 15-5621), none of these modifications were contested. The Property at Issue Phase IV is a 29.08-acre subdivision within an area of the Miromar Lakes community known as the Peninsula. Located within Basin 6, Phase IV is the last phase of development approved by the conceptual permit for residential development in the Peninsula. All prior Peninsula phases have been permitted and developed, or are in the process of development. Prior phases were permitted based on their consistency with the conceptual permit, and none were challenged by third parties. The area under Miromar's requested permit in the instant case was conceptually authorized for single-family residential development. This is confirmed by language in the 1999 permit, which describes the conceptual proposal for Basin 6 as "includ[ing] 639.7 acres of residential, golf course, and mixed-used [sic] development." Jt. Ex. 3, p. 275. The permit also provides that each of the four sub-basins in Basin 6 should "have a water quality structure that provides treatment for the first one inch of stormwater runoff from the sub-basin . . . and that attenuation for Basin 6 is achieved onsite via the proposed sub-basin lakes and also by an existing 244.2-acre borrow lake." Id. While the 1999 permit establishes standards for flood control elevations, minimum lot elevations, and discharge rates, more specific development guidance is not provided. When the conceptual permit was issued, Basin 6 contained one former mining pit dredged from uplands to be used as a man-made lake for recreational purposes. A second mining pit, later converted to a lake, continued mining operations until 2006. The following year, the District authorized the two borrow lakes to be connected by a series of channels and canals, forming a privately-owned, 660-acre waterbody now known as Lake 5/6. Alico's property includes Lake 5, which makes up the northern portion of Lake 5/6, while Lake 6 to the south, owned by the Miromar Lakes Community Development District, is surrounded by Miromar's development. Alico has an easement over portions of Lake 6 for recreational uses under a Lake Use Agreement. Because the two connected lakes are to be used only for recreation and attenuation purposes, Lake 5/6 is designated as Class III waters and cannot be used for stormwater treatment. It is not classified as an Outstanding Florida Water (OFW) or an Impaired Florida Waterbody. Lake 5/6 discharges over a control weir into an un- channeled slough system known as the Stewart Cypress Slough. The water travels several miles through the slough system, passes several intervening properties that also discharge waters into the slough, and then runs underneath I-75. It eventually reaches the Estero River, an OFW and Impaired Florida Waterbody, which flows into the Estero Bay, an OFW. There is no direct discharge of waters from Lake 5/6 to the Estero River. The evidence shows that the project will not increase the overall discharge rate from the control weir for Lake 5/6. In February 2013, the District approved another Miromar application, known as Phase III, which authorized the third phase of development within the same peninsula where the Phase IV project will be located. That development contains two wet detention structures (Lakes 1 and 3) that will also service the Phase IV project. The Phase III permit was issued using the 1999 rules and regulations and was not contested. The Application The Original Application On November 25, 2014, the District issued its notice of intent to issue Miromar a permit authorizing the construction and operation of a stormwater system serving 29.08 acres of residential development that included multi-family residences, single-family residences, 49 boat slips, and road construction. Phase IV is a very small portion of the 1,481-acre development approved in the conceptual permit. The project is located on Via Salerno Way and Via Cassina Court within Basin 6. Construction was originally proposed in Sub-Basins 1 and 3. There is an approved Master Plan for stormwater management facilities within the project area. The site was previously cleared and filled and no wetlands are located on the site. The original construction in Sub-Basin 1 consisted of a roadway, 22 single-family residential lots, and stormwater conveyance facilities. Also included were shoreline contour shaping, placement of rip-rap on portions of the Lake 5/6 shoreline to enhance stability, enhanced littoral zones, and boat docks. Stormwater within that Sub-Basin flows via sheet flow and interconnected inlets to the existing wet detention area (Lake 1) located in Phase III north of the site. The wet detention area provides the required water quality treatment volume for the project prior to discharge to Lake 5/6. The original proposed construction in Sub-Basin 3 consisted of a roadway, 11 single-family residential lots, and 16 multi-family buildings with associated internal roadway, parking areas, and stormwater treatment, storage, and conveyance facilities. Also included within the original plans were shoreline contour shaping, placement of rip-rap on portions of Lake 5/6 shoreline to enhance stability, enhanced littoral zones, and boat docks. Stormwater runoff within Sub-Basin 3 flows via sheet flow and interconnected inlets to the existing wet detention area (Lake 3) located in Phase III north of the site. The original application included a request to increase the surface area of Lake 3 by approximately 0.1 acre and to construct three dry detention areas within the multi-family development area. The wet and dry detention areas provide the required water quality treatment for the project prior to discharge to Lake 5/6. The Revised Project After the case was referred to DOAH, by letter dated June 8, 2015, Miromar's project engineer provided the District with proposed changes to the site plan, to be used at the final hearing then scheduled to begin on June 24, 2015, which include the replacement of 16 multi-family buildings and driveways on Via Cassina Court with 23 single-family residential lots; removal of the 16 multi-family boat docks located at the southern end of Via Cassina Court; reducing the number of boat docks to 45 single-family docks; relocation of the three dry detention areas shown on the proposed site plan; and clarification of the lot grading cross-section to ensure that stormwater runoff from the development will be directed to the stormwater management system and not Lake 5/6. Updated plans, drawings, and specifications, and new water quality calculations accompanied the letter and were intended to replace original Exhibits 2.0 and 2.3 of the permit. See Jt. Ex. JA-1, pp. 244- 257. The changes resulted in a continuance of the final hearing and Alico's filing of an Amended Petition. By amendment at final hearing, Miromar removed the 45 single-family docks. The June 8 letter states that the changes will not increase pollution or reduce the efficiency of the stormwater management system. Miromar acknowledges that some of these changes were to resolve concerns raised by Alico. Miromar now seeks approval of the Phase IV permit, incorporating the changes proposed by the June 8 letter and those agreed to at the final hearing. Because there was no requirement to provide a site- specific nutrient loading analysis when the 1999 permit was issued -- this analysis was not yet formally developed -- the District did not require, and Miromar did not submit, such an analysis with its application. Under the conceptual permit, Miromar was required to provide treatment for one inch of stormwater runoff in Basin 6. Relying on this condition, Miromar applied that treatment to the Phase IV permit. This results in the treatment of 7.09 acre- feet of stormwater for the basin. After the construction shown in the permit, the stormwater management system will treat 9.21 acre-feet, or more than is required under the 1999 permit. The District established that new flood routing calculations for the project were not necessary because Miromar has set elevations for the water control structures in Lakes 1 and 3 at the same level as the road elevations, and the project connects to an existing surface water treatment system. This provides reasonable assurance that the project will not cause flooding despite having no calculations from the applicant. Alico's Objections Although couched in different terms, Alico's concerns can be generally summarized as follows. First, it contends the application should be treated as a major modification of the conceptual permit and that Miromar must satisfy current rules and regulations, and not those in effect in 1999. Second, it contends both the original and revised applications are inconsistent with the conceptual permit and must be treated as a new design, subject to all current rules and regulations. Third, even though Miromar agreed at hearing to revise its permit to address certain errors/deficiencies identified by Alico's experts, Alico contends no revisions can be made at this stage of the proceeding, and that a new application must be filed with the District and the review process started anew. Is the Application a Major or Minor Modification? If the modification is minor, Miromar is required only to satisfy applicable rules for issuance of a permit when the conceptual permit was issued. Rule 62-330.315 and AH section 6.2.1 provide guidance in resolving this issue. Rule 62-330.315(2)(g) defines a minor modification as one "that do[es] not substantially alter the permit authorization, increase permitted off-site discharge, increase the environmental impact of the project, decrease required retention, decrease required detention, decrease required flood control elevations, or decrease pollution removal efficiency." The rule also provides that the "factors that will be considered in determining whether a change is minor are described in section 6.2.1 of Volume I [of the Applicant's Handbook]." Section 6.2.1(d) lists a series of 14 factors to be considered in determining whether a modification will cause more than minor changes under rule 62-330.315(2). None of the factors is dispositive alone, and the presence of any single one of the factors does not necessarily mean that a modification is major. All 14 factors are considered together in determining whether a modification is major. Using the factors set forth in rule 62-330.315(2), in conjunction with section 6.2.1, the District reviewed the application to determine whether it was a minor modification. Based on these criteria, the District determined that the application qualified as a minor modification of a conceptual permit and that it satisfied applicable rules for issuance of a permit for this subsequent phase of the project. Alico contends that the initial review by a District staffer was only cursory and was in no way a meaningful assessment. Even if this is true, subsequent reviews by District staff, including witness Waterhouse, who supervises the ERP Bureau, was a signatory on the 1999 permit, and has reviewed thousands of ERP applications, confirmed that the application, as revised on June 8 and at final hearing, meets the criteria for a minor modification. The testimony of District witnesses Waterhouse and Waters has been accepted as being the most credible on this issue. In its review of the original application, the District considered the inclusion of boat docks as the only aspect of the application that made the project a major modification. In all other respects, the District determined that the modification would not cause more than minor changes. With the removal of the boat docks, the District concluded that the application did not substantially alter the design of the activities or the conditions of the conceptual approval permit. Alico's expert, who has never performed a similar consistency analysis on any project, testified that several of the 14 factors in section 6.2.1(d) might be affected. But he opined with certitude that factor 2 is implicated by the Phase IV permit. Factor 2 comes into play when there is an "[i]ncrease in proposed impervious and semi-impervious surfaces more than 10 percent or 0.5 acres, whichever is less, unless the activities were permitted with stormwater treatment and flood attenuation capability sufficient to meet the permitting requirements for the proposed modification." By citing only one factor, the expert implicitly conceded that the other 13 factors are not present, thus weighing towards a finding of consistency. Alico's expert focused only on the first part of factor 2 by calculating the impervious area of the project, as he did not believe the conceptual permit approved a master stormwater management system capable of sufficiently meeting the treatment and attenuation requirements for the Phase IV project. However, the more persuasive evidence is that the Master Plan in the 1999 permit is capable of meeting the treatment and attenuation requirements for the project. Therefore, factor 2 is not implicated by the Phase IV permit. Even if the factor were present, it would be insufficient to outweigh the other 13 factors and render the project a major modification of the 1999 permit. The preponderance of the evidence supports a finding that the District may consider as minor the revised application. Consistency with the Conceptual Permit A consistency analysis is conducted under two related rules. First, rule 62-330.315 identifies when a subsequent permit is either a major or minor modification of a prior conceptual permit. As found in the previous section of this Recommended Order, the modification is minor. Second, rule 62- 330.056 provides a rebuttable presumption that subsequent consistent development phases are likely to meet the applicable rules and regulations if the factors listed in subsections (7)(a) through (7)(d) are met. The primary factors for consistency comparison are identified in subsection (7)(a) as "the size, location and extent of the activities proposed, the type and nature of the activities, percent imperviousness, allowable discharge and points of discharge, location and extent of wetland and other surface water impacts, mitigation plans implemented or proposed, control elevations, extent of stormwater reuse, detention and retention volumes, and the extent of flood elevations." Subsections (7)(b) and (c) provide that in order to have consistency, there can be no changes to state water quality standards, in this case the standards for Lake 5/6, or special basin criteria. There is no evidence that applicable state water quality standards or special basin criteria have changed. Finally, subsection (7)(d) requires that there can be no substantive changes to the site characteristics. Except for the conceptual permit, there is no requirement that the District compare the Phase IV permit with any other permit. The District views the location and the land use type of the project as the two most important criteria for determining consistency. As required by the rule, the District also compares the environmental impacts of the modification to the conceptual permit, control elevations, and discharge rates. The District credibly determined there is no inconsistency. While some site characteristics in Basin 6 have obviously changed over the last 16 years, the District's review found no substantive changes that would affect whether the design concepts approved in the conceptual approval permit can continue to be reasonably expected to meet the conditions for authorizing construction of future phases. The District credibly determined that the activities in Phase IV, as revised, were similar to or less intensive than those authorized in the conceptual approval permit and may actually provide a net benefit to Lake 5/6. Alico contends that a meaningful consistency analysis was not conducted by the District staffer who reviewed the original application. But subsequent reviews by witnesses Waterhouse and Waters confirmed that Phase IV, as revised, is consistent with the conceptual permit based upon the rule and AH criteria. Besides the District's review, Miromar's expert testified that Phase IV is consistent in land use as a single- family residential development. He also testified that the Phase IV permit was consistent with the 1999 permit in size and location; it maintained the same allowable rate of stormwater discharge; and it maintained required flood control elevations. He further testified that the Phase IV permit did not change the mitigation plans, permitted stormwater reuse, flood routings, or storm stages provided by the 1999 permit. This testimony has been credited in resolving the issue. The preponderance of the evidence supports a finding that the Phase IV land uses are the same as contemplated in the conceptual permit and the already-approved prior phases of Miromar Lakes, and the new permit is consistent with the conceptual permit. Therefore, Miromar is entitled to a rebuttable presumption that it meets the applicable rules and standards in place when the 1999 permit was issued. Alico failed to rebut this presumption. Revisions and Amendments at the Final Hearing During the final hearing, Alico's experts identified several errors and/or deficiencies in the design of Miromar's project, described below, that should be addressed before a permit can be issued. Miromar agrees with some of these concerns and asks that they be addressed through revisions incorporated into its permit. The District also concurs with these changes. The record shows that they are appropriate, minor in nature, and do not change the character of the permit. There is no evidence that Alico is prejudiced by allowing these revisions. Alico's expert testified that the Phase IV permit does not provide sufficient information regarding the soils on the Phase IV site. At hearing, Miromar agreed that any unsuitable soils discovered during construction would be excavated and removed and correctly disposed of in a landfill or other uplands. This is the common method of dealing with soils in Lee County, where it is not unusual to find unsuitable soils during construction. A special condition to this effect should be included in the final permit to ensure clarity. Through a series of treatment ponds, Miromar proposes to treat nearly all stormwater that falls on-site prior to its discharge to off-site properties. Alico's expert testified that the lot grading detail drawings inaccurately reflect the elevations of certain portions of the lots and can result in runoff from some lots being routed to Lake 5/6, instead of Lakes 1 and 3. Miromar agrees with this concern and represented that the intent of the June 8 letter is that drainage for all lots, except for the portion of lots within the 20-foot Lake Maintenance Easement (LME), which surrounds the project on three sides, be directed to the front of the lots toward the street, and then to the treatment ponds. Water that falls naturally within the LME will be treated by attenuation in Lake 5/6 prior to off-site discharge. Miromar also agrees to submit new Tabular Lot Grading Revisions and a new Typical Lot Grading Detail and to update its June 8 plans to reflect proposed lot grading elevations consistent with the lot detail. Alico's expert acknowledged that roof gutters are an additional solution, and they should be installed on all roofs in order to direct runoff to the front yards and then to the stormwater system. Finally, to ensure proper lot drainage, Miromar agrees that the secondary drainage pipes to convey runoff from roofs, gutters, and grassed areas will have a minimum size of six inches. The District agrees that these changes will improve water quality and ensure that all stormwater is properly captured and directed into the stormwater system. A special condition requiring these revisions should be included in the final permit to ensure clarity. Alico's expert also testified that the plans should include a requirement that Miromar follow best management practices (BMPs) for the replacement of a control structure in Lake 3, which serves as a stormwater treatment pond. General Condition 3 already addresses this issue by requiring Miromar to use BMPs that prevent adverse impacts to the water resources and adjacent lands. In addition, the June 8 letter provides plans for BMPs for work at the site, including Lake 3. Although the District found that reasonable assurances were provided by General Condition 3 and the June 8 letter, to ensure clarity, a special condition should be included in the final permit that requires the use of BMPs for all construction, including the replacement of an old boat ramp and the control structure in Lake 3. Miromar and the District agree that this revision is appropriate. Alico's expert opined that control structures CS-1 (Lake 1) and WQS-1.3 (Lake 3), which have a circular bleeder orifice with a four-inch diameter, should be limited to a bleeder orifice of 3.7 inches in diameter. Although the District found reasonable assurances existed with four-inch bleeder orifices, Special Condition 3 should be modified to reflect a 3.7-inch bleeder for these control structures. This will ensure that before being discharged, the water leaving the two control structures receives the appropriate amount of water quality treatment. Both Miromar and the District agree that this revision is appropriate. With the removal of all docks and an old boat ramp, Special Conditions 2, 10, 11, and 13 through 17 require modification, or deletion if necessary, to eliminate obsolete language relating to the docks and ramp and to add language to provide that construction and operation of the docks shown on the plans, specifications, and drawings are not authorized. Miromar and the District agree to these revisions. Other Concerns Alico's expert contended that under current District rules, Miromar is required to provide stormwater treatment equal to the greater of (a) one inch multiplied by the total project acreage, and (b) 2.5 inches multiplied by the project's impervious area. However, Alico did not pursue this issue in its PRO, probably because its expert agrees that the current design of the project meets District rule criteria for one inch of water quality treatment. Alico's expert also contends that Miromar is required to provide an additional 50 percent of stormwater treatment above the one-inch requirement. This is contrary to the conceptual permit, which does not require additional stormwater treatment. Also, the requirement does not apply when there is no direct discharge of stormwater into an OFW. Even so, Miromar voluntarily agreed to increase the stormwater treatment capacity for Phase IV, which results in excess treatment in Basin 6 greater than 50 percent above the treatment required for the Phase IV area. Alico argues that the additional treatment is illusory, as it relies on additional treatment from an adjoining phase, and not Phase IV. Even if this is true, Alico's expert admits that the current one inch treatment meets the requirements of the rule for issuance of a permit. Alico's expert contended that the Phase IV permit allows the bulkhead to be developed on more than 40 percent of total shorelines, in contravention of AH section 5.4.2, Volume II, which restricts a bulkhead to no more than 40 percent of the lake perimeter. However, Miromar's expert established that the Phase IV hardened shorelines would comprise less than 40 percent of the total shoreline in the Phase IV area and therefore comply with this requirement. His testimony was not credibly refuted. Even though there is no direct discharge from the project into the Estero River or Estero Bay, and the project will not result in higher discharge rates from the overall system outfall from Lake 5/6, based on water samples taken in August 2015, Alico's expert opined that the project will cause a discharge of excess nutrients into an OFW. The evidence shows, however, that these water samples were taken after heavy rains when the expert observed water flowing upstream from the slough into Lake 5/6, rather than downstream. The expert also admitted he had done no testing, analysis, or modeling demonstrating that any pollutant would even reach the Estero River. He failed to take a baseline sample of water quality for any nutrients for which the slough, Estero River, or Estero Bay may be impaired, and he conceded that it was possible that there was no net discharge from Lake 5/6 into the slough during the time of his testing. There is insufficient evidence to sustain this allegation. Other alleged deficiencies or errors in the application, as revised, that are not addressed in this Recommended Order have been considered and found to be without merit. ERP and Public Interest Criteria The criteria the District uses when reviewing an ERP application are contained in the AH and rules 62-330.301 and 62-330.302. In addition, an applicant must provide reasonable assurance that a proposed project is not contrary to the public interest. § 373.414, Fla. Stat.; AH § 10.2.3. Alico failed to prove by a preponderance of the evidence that Miromar has not provided reasonable assurance that the activities authorized by the ERP comply with all applicable ERP permitting criteria. Alico failed to prove by a preponderance of the evidence that Miromar has not provided reasonable assurance that the proposed project is not contrary to the public interest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order approving Miromar's application, as revised, for a permit modification, subject to the following additional conditions: That the plans, drawings, and specifications submitted with the June 8 letter that appear in Joint Exhibit JA-1, pages 244-53, be used as Exhibit 2.0 of the permit. That the water quality calculations submitted with the June 8 letter that appear in Joint Exhibit JA-1, pages 254-57, be used as Exhibit 2.3 of the permit. That Special Conditions 2, 10, 11, and 13 through 17 be revised or eliminated to remove obsolete language relating to the removal of the boat docks and boat ramp. That Special Condition 10 be revised to require that all construction, including the removal of the boat ramp and replacement of Control Structure No. 3, be conducted using BMPs. That a new special condition be added to reflect that the construction and operation of docks will not be authorized by the permit. That a new special condition be added with new Tabular Lot Grading Revisions and a revised Typical Lot Grading Detail and address the following: the project shall be constructed to ensure that stormwater from the project, except stormwater from within the LME, is routed to the stormwater treatment system prior to discharge to Lake 5/6; the lot grading on all lots shall be in accordance with the revised lot grading to reflect the high point of the lots located adjacent to the LME to ensure that runoff from the lots is directed to Lakes 1 and 3; that the revised lot grading require the installation of six-inch secondary drainage pipes; and that roof gutters be installed on all roofs to ensure that runoff from the residential lots is directed to the stormwater treatment system. That a new special condition be added to address unsuitable soils encountered during construction and to ensure that they are removed and disposed of in an appropriate manner. That Special Condition 3, relating to discharge facilities, be revised to reflect that a 3.7-inch circular orifice will be installed in Sub-Basins 1 and 3, rather than a four-inch orifice shown in the existing plans. DONE AND ENTERED this 27th day of January, 2016, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 2016. COPIES FURNISHED: Peter Antonacci, Executive Director South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3007 (eServed) Kevin S. Hennessy, Esquire Lewis Longman & Walker, P.A. Suite 620 101 Riverfront Boulevard Bradenton, Florida 34205-8841 (eServed) Brian J. Accardo, General Counsel South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3007 (eServed) Keith L. Williams, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3007 (eServed) Martin L. Steinberg, Esquire Hogan Lovells US, LLP Suite 2700 600 Brickell Avenue Miami, Florida 33131-3085 (eServed) Timothy J. Perry, Esquire Oertel, Fernandez, Bryant & Atkinson, P.A. Post Office Box 1110 Tallahassee, Florida 32302-1110 (eServed)
Findings Of Fact Application No. 76-00408 is for an existing water use from six wells. The application seeks a total average annual withdrawal of 3.298 million gallons per day and a maximum daily withdrawal of 9.801 million gallons per day. The wells will be located in the Peace River basin in Polk County. Ninety-nine percent of the water will be used for industrial purposes and one percent of the water will be used for irrigation purposes. The applied for consumptive use will not violate any of the conditions set forth in Subsection 16J-2.11(2), (3) or (4), Florida Administrative Code. The Southwest Florida Water Management District's staff recommends granting of the subject permit in the amounts requested with the following conditions: That the applicant shall install totalizing flowmeters of the propeller-driven type on all withdrawal points with the exception of the well to be used for agriculture located at , Latitude 27 degrees 45 minutes 39 seconds, Longitude 81 degrees 37 minutes 07 seconds and the fire well located at Latitude 270 54 minutes 39 seconds, Longitude 81 degrees 36 minutes 00 seconds. The applicant shall submit to the district a record of pumpage for each meter installed in (a) above on a quarterly basis beginning January 15, 1977, with the pumpage recorded on a weekly basis.
Recommendation It is hereby RECOMMENDED that a consumptive use permit in accordance with Application No. 76-00408 be issued with the conditions set forth in paragraph 3 above. ENTERED this 13th day of October, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Citrus World, Inc. Staff Attorney Post Office Box 1111 Southwest Florida Water Lake Wales, Florida 33853 Management District Post Office Box 457 Brooksville, Florida 33512
The Issue The issue at this stage of the proceeding is whether jurisdiction should be relinquished to the Southwest Florida Water Management District based upon the withdrawal of Petitions filed herein on behalf of the Petitioners, and the filing of a stipulation and settlement agreement executed on behalf of the Petitioners and Respondents.
Findings Of Fact By Notices of Referral dated June 7, 1989, and filed June 1 6, 1989, the Southwest Florida Water Management District (District) transmitted to the Division of Administrative Hearings (DOAH) certain Petitions filed on behalf of Petitioners which opposed the issuance of a consumptive use permit numbered 208426 by the District to the West Coast Regional Water Supply Authority (Authority). These Petitions were assigned Case Numbers 89-3187 through 89-3189 by DOAH, and were consolidated for all further proceedings. On August 18, 1989, Chilpub, Inc. (Chilpub), filed a Petition to Intervene, which was granted by Order entered on September 6, 1989. On October 20, 1989, Wiregrass Ranch, Inc. (Wiregrass), filed a Petition to Intervene, which was granted by Order entered on October 31, 1989. The Petitions filed on behalf of Chilpub and Wiregrass were filed at DOAH, and specifically sought leave to intervene in Cases Numbered 89-3187 through 89-3189 in order to oppose the issuance of permit number 208426 to the Authority. Following the granting of these Petitions, Chilpub and Wiregrass have participated in this proceeding as Intervenors On or about November 8, 1989, the Authority provided Wiregrass with a copy of the Notice of Proposed Agency Action which is the subject of this proceeding, pursuant to Rule 40D-2.101, Florida Administrative Code. However, subsequent to receiving this Notice of Proposed Agency Action, Wiregrass failed to file with the District any Petition in its own right seeking to initiate a proceeding under Section 120.57(1), Florida Statutes, to challenge the issuance of permit number 208426 to the Authority. Notices of Withdrawal of Petitions for Formal Hearing were filed on behalf of the Petitioners in Cases Numbered 89-3187 through 89-3189 on April 4, 1990, and on that same date, the Petitioners and Respondents filed their Joint Motion to Relinquish Jurisdiction. A copy of the Stipulation and Settlement Agreement executed by the Petitioners and Respondents was filed on April 9, 1990.
Recommendation Based upon the foregoing, it is recommended that the District enter a Final Order dismissing the Petitions filed herein, and issuing permit number 208426 to the Authority. DONE AND ENTERED this 19 day of April, 1990 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 120 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 19 day of April, 1990. COPIES FURNISHED: David L. Smith, Esquire Jeffrey A. Aman, Esquire 712 South Oregon Avenue Tampa, FL 33606 Edward P. de la Parte, Jr., Esquire Barbara B. Levin, Esquire 705 East Kennedy Blvd. Tampa, FL 33602 Bram Canter, Esquire 306 North Monroe Street Tallahassee, FL 32302 Enola T. Brown, Esquire P. O. Box 3350 Tampa, FL 33601-3350 James S. Moody, Jr., Esquire P. O. Box TT Plant City, FL 33564-9040 Peter G. Hubbell Executive Director SWFWMD 2379 Broad Street Brooksville, FL 34609-6899
