The Issue The issue in this case is whether the Department of Environmental Regulation (DER) was provided reasonable assurance as required by Rule 17-4.070, F.A.C., that the granting of a permit pursuant to the requirements of Rule 17- 604, F.A.C., to Volusia County for the construction of a closed wastewater collection and transmission system would not result in discharges or emissions or cause pollution in contravention of DER standards or rules.
Findings Of Fact David Biddulph is a resident of Volusia County, Florida and a resident of the unincorporated area known as Bethune Beach. County of Volusia, a charter county, is the applicant for a proposed wastewater collection and transmission system pursuant to Section 403.0878, F.S. [1991] and Rule 17-604, F.A.C. The Department of Environmental Regulation is the state agency charged with the responsibility of reviewing permits under Chapter 403, F.S. and its applicable rules. Petitioner Biddulph stipulated that the wastewater collection and transmission system as designed met the technical and engineering design requirements of Rule 17-604, F.A.C. Bethune Beach is an unincorporated area located on the barrier island separating the Atlantic Ocean and the Indian River Lagoon. Volusia County contracted with the environmental engineering firm of Marshall McCully & Associates to determine the feasibility of designing and constructing a wastewater collection and transmission system for the Bethune Beach area. The St. Johns River Water Management District is directed by the Indian River Lagoon System and Basin Act, Chapter 90-262, Laws of Florida, to identify areas where existing septic tank systems are considered a threat to the water quality of the Indian River Lagoon System. The St. Johns River Water Management District began developing a general methodology to access areas which are potential sources of pollution in the Indian River Lagoon System. This general methodology was called "Problem Area Index" (PAI). The PAI was intended to be used as an initial screening device in conjunction with other relevant research data or field verification to identify the problem areas. Volusia County's Public Health Unit, a division of the State of Florida Health and Rehabilitative Services Department, (HRS) utilized the proposed PAI to evaluate the southeast area of Volusia County. The Volusia County Public Health Unit entered into a contractual agreement with the St. Johns River Water Management District to research and delineate those areas in the southeast part of Volusia County with the potential to cause pollution to the upper Indian River Lagoon surface waters. The foregoing report concluded that the Bethune Beach area was an area of special concern and recommended that development of sewage treatment facilities be provided to this area. Credible competent evidence shows that the existing soils in Bethune Beach have high shell content and a high water table which are not conducive to installation of septic tank systems for sewage disposal, although the houses there now have such septic tanks. The conceptual plan prepared by Marshall McCully & Associates which was presented to Volusia County concluded there was a need to construct a wastewater collection and transmission system, and this plan was adopted by the Volusia County Council after holding the requisite public hearings. Volusia County Ordinance 79-3 authorizes the Volusia County Council to establish special service districts to provide water services and any and all other essential facilities. The county may initiate service in any area in its discretion without receiving an initiating petition from residents. Volusia County also created a special assessment for the installation of the system. Volusia County contracted with Marshall McCully & Associates to obtain the necessary permits for the construction of the wastewater collection and transmission system. Marshall McCully & Associates on behalf of Volusia County applied for a permit from DER to construct a domestic wastewater collection transmission system. In implementing Rule 17-604, F.A.C., DER policy does not require domestic wastewater collection and transmission system permit applicants to demonstrate that septic tanks simply would not work in the area served by the collection system. If the DER permit is granted, the septic tanks now lawfully present on Bethune Beach would have to be removed. The Volusia County application to construct a domestic wastewater collection and transmission system indicates that the sewage treatment facility serving the project would be the City of New Smyrna Beach Utilities Commission Pollution Control Plant. DER has already permitted that plant pursuant to Rule 17-600 F.A.C. under permit D064-191532 with an expiration date of June 30, 1995. The design capacity permitted under the existing permit for New Smyrna Beach's plant is 4,000,000 gallons a day, and the current average daily flow over the past twelve months has been approximately 2 and 1/2 million gallons a day. The city plant is currently operating within the parameters of its DER permit. Additional flow to the city plant from the county's proposed wastewater collection and transmission system has been reasonably estimated at 250,000 gallons per day. The only evidence of other amounts is speculative and not probative. DER implementation policy is to issue permits for new collection and transmission systems only where construction of a new collection and transmission system would connect to a sewage treatment plant which already has a permit capable of accommodating the new collection and transmission system. DER policy also does not contemplate granting permits to build waste water collection and transmission systems in such a manner as to increase the amount of water running through currently permitted sewage treatment plants beyond the maximum capacity for which the existing sewage treatment plant itself is currently permitted. In the present instance, Volusia County's proposed collection and transmission system, if permitted pursuant to DER's expressed permit conditions or terms (intent to grant), requirements, would not increase the amount of water running through the city receptor plant beyond the 4,000,000 gallon capacity which has already been reviewed by DER, is currently permitted by DER, and is currently subject to enforcement by DER. Although the county's proposed collection and transmittal system would increase the city plant's actual output by 250,000 gallons, the city plant's total output would thereafter still be 1,250,000 gallons below the plant's current permitted capacity. DER implementation policy also is to issue permits for construction of collection and transmission systems only if the sewage treatment plant to which the system would connect is properly treating the waste as required by the plant's current DER operating permit. The New Smyrna Beach Utilities Commission Pollution Control Plant that would receive domestic wastewater from the collection and transmission system proposed by Volusia County's permit application pending in this case is currently properly treating the waste it receives. The city plant currently discharges its effluent into the Indian River Lagoon System as allowed by its DER permit. The city plant also currently has the permitted capacity to receive the level of reasonably anticipated waste which will be transmitted by the collection and transmission system proposed by the county. Under the terms of DER's proposed permit for Volusia County's closed collection and transmission system, the city plant would not be authorized to increase the amount of treated wastewater for which the city plant is currently permitted. In review of permit applications, DER interprets the Indian River Lagoon Act to prohibit any new permitted discharge, or permitted increased loadings. This is a reasonable interpretation and entitled to great weight both as an agency interpretation of a statute it administers and because the agency's statutory interpretation reasonably acknowledges efficacy of the original DER permitting review of the existing city sewage treatment plant, the requirement of DER review of the county's pending application for a collection and transmission system, and the permitting and enforcement oversight of both those governmental entities' operations by the same agency, DER. Although the New Smyrna Beach Utilities Pollution Control Plant is currently operating within the parameters of its DER permit, a Consent Order has previously been negotiated between the city and DER to accomplish upgrading of the pollution control plant to meet new federal regulations for such facilities. The Consent Order requires the New Smyrna Beach Utilities Commission to begin a program of wastewater reuse and provide for land application of the treated effluent by 1995. The pollution control plant is on schedule for the removal of the effluent. No effluent will be discharged into the Indian River Lagoon System, except under limited wet weather discharge permits, which have been applied for. The Indian River Lagoon Act makes provision for wet weather discharge exceptions as do DER's and the city's actions pursuant to the Consent Order. See, Section 2. (3)(c) of the Indian River Lagoon Act. One of the intents of the Consent Order is to ensure that the treatment plant is in compliance with the Indian River Lagoon Act by the date of July 1, 1995 specified within that Act at Section 2. (2). The city plant permit expires June 30, 1995. If the New Smyrna Beach Utilities Commission does not receive wet weather discharge permits for its plant, it has planned to implement alternatives, such as onsite storage, to meet the requirements and anticipated enforcement by DER of the Indian River Lagoon Act. The New Smyrna Beach Utilities Commission Pollution Control Plant has an extensive inspection and maintenance program, which includes a television system that internally inspects the pipes for evidence of seepage. The New Smyrna Beach Utilities Commission Pollution Control Plant is regularly inspected by, and provides monthly operational reports to, DER so that DER can enforce any environmental concerns under the existing plant permit. The plant's operation under its current permit is also subject to review when that permit becomes subject to renewal due to its expiration date of June 30, 1995. Opinion testimony to the effect that increased acidity of the effluent might permeate the county pipes or the city pipes was speculative and unpersuasive.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That the Department of Environmental Regulation enter a final order dismissing the petition of Petitioner and granting the County of Volusia's application upon the terms and conditions set out in the agency's proposed permit (intent to grant). RECOMMENDED this 22nd day of January, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 22nd day of January, 1993. APPENDIX TO RECOMMENDED ORDER 92-5033 DOAH CASE NO. 92-5033 The following constitute specific rulings, pursuant to S120.59 (2), F.S., upon the parties' respective proposed findings of fact (PFOF) Petitioner Biddulph's PFOF: 1-2,6 Accepted excepted for unnecessary, subordinate, or cumulative material. 3-5 Rejected as unreconciled, non-dispositive, and unpersuasive expert testimony, not supported by the greater weight of the credible, competent, record evidence as a whole. 7 Accepted, except the date July 1, 1995 has been correctly substituted. 8 Immaterial; DER permitting does not encompass whether an applicant builds a "cadillac or a volkswagon" system, as long as what is built meets DER regulatory standards. "Reasonable assurances" do not include "best financial investment." This proposal is also rejected as partial and unreconciled material, not supported by the greater weight of the credible, competent record evidence as a whole. 9 Not supported by the greater weight of the competent, credible, persuasive evidence. 10 Accepted that PIA is not completed or formalized. That it was not previously considered is not dispositive a de novo hearing. 11 Accepted but subordinate; not dispositive. This expert admittedly did not consider many other sources. 12, 13, 15 Rejected as irrelevant in part and immaterial in part. See treatment in recommended order of septic tank situation. 14 Rejected as stated as not supported by the greater weight of the competent credible, persuasive evidence. See treatment of target amounts, time frame for effluent reduction, and elimination of contaminants in recommended order. Applicant/Respondent Volusia County's PFOF: 1-11,13-29 Accepted except for unnecessary, subordinate, or cumulative material. 12 Accepted in substance but not as stated. 30-31 Accepted, but irrelevant, immaterial and non- dispositive of the disputed issues of material fact. Respondent DER's PFOF: 1-17,19-29 Accepted except for unnecessary, subordinate, or cumulative material. 18 Rejected as proposed because as proposed, it is a proposal of law, not fact; accepted under "conclusions of law" portion of RO. 30-31 Accepted, but irrelevant, immaterial, and non- dispositive of the disputed issues of material fact. COPIES FURNISHED: Harry A. Stewart, Esquire 5807 South Atlantic Avenue New Smyrna Beach, FL 32169 Douglas A. MacLaughlin, Esquire John Chaves, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue Whether applicable law authorizes the Division of Administrative Hearings to conduct a hearing on the merits of issuing a permit, where the referring agency issued the permit almost three months before the objectors' petition for hearing was filed?
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That DER enter a final order dismissing with prejudice the amended petition for formal proceeding under Section 120.7, Florida Statutes, filed by Freeport and STI. DONE and ENTERED this 25th day of September, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William L. Earl Esquire One Biscayne Tower, Suite 3636 Two South Biscayne Boulevard Miami, Florida 33131 Joe W. Fixel, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 John T. Allen, Jr., Esquire 4508 Central Avenue St. Petersburg, Florida 33711 Edward P. de la Parte, Jr., Esquire 403 N. Morgan Street, Suite 102 Tampa, Florida 33602 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION FREEPORT SULPHUR COMPANY, Division of FREEPORT MINERALS COMPANY, and SULPHUR TERMINALS, INC., Petitioner, vs. CASE NO. 78-527 DEPARTMENT OF ENVIRONMENTAL REGULATION, and AGRICO CHEMICAL COMPANY, Respondent. /
The Issue The issue is whether Florida Administrative Code Rule 62B- 33.005(3)(a) is an invalid exercise of delegated legislative authority for the reasons alleged by Petitioners.
Findings Of Fact Austin is the owner of real property located at 1580 Indian Pass Road, Port St. Joe, Florida. Heslin is the owner of real property located at 1530 Indian Pass Road, Port St. Joe, Florida. Lighthouse is the applicant for a coastal construction control line (CCCL) permit for structures and activities proposed to occur on property located adjacent to Austin’s property. Heslin’s property is located within 500 feet of the proposed project site. The property for which the CCCL permit is sought is located landward of the mean high water line (MHWL). On January 31, 2006, the Department gave notice of issuance of a CCCL permit to Lighthouse. The proposed permit authorizes activities 228 feet seaward of the CCCL, specifically, the construction of a subdivision roadway/cul-de- sac including asphalt and limerock foundation, excavation of soil, filling of soil, ornamental street lights, stormwater management swales, below grade utilities, and dune enhancement plantings. Lighthouse obtained a subdivision plat for the site from Gulf County, Florida, on June 28, 2005, which includes 12 platted lots seaward of the CCCL, each approximately one quarter acre in size. When issuing the CCCL permit, the Department did not consider the platted subdivision that will be serviced by the permitted roadway project. Austin filed a petition challenging the issuance of the CCCL permit to Lighthouse. The challenge is styled Gloria Austin v. Lighthouse Walk, LLC and Department of Environmental Protection, DOAH Case No. 06-1186 (hereafter “the Permit Challenge”), and is pending before Judge Alexander. Heslin sought and was granted leave to intervene in the Permit Challenge. Paragraphs 6, 10, and 18 of the Petition for Formal Administrative Proceeding (Petition) in the Permit Challenge state as follows: 6. The proposed subdivision that is intended to be built by Lighthouse, will result in incompatible high density residential development seaward of the costal control line and seaward of the Petitioners’ homes. The incompatible and inappropriate nature of this subdivision will greatly increase the danger of Petitioners’ homes being damages by storm driven debris in the event of a major storm event such as a hurricane occurring in this area. * * * The area in question on Cape San Blas is presently developed in very low density single family home sites. The proposed development would create high density development seaward of the coastal construction control line for which construction is totally unnecessary and could easily be greatly minimized. The parcel in question could accommodate a residential subdivision without encroaching seaward of the present coastal construction and control line. In light of the above, it is clear the project violates Rule 62B- 33.005(3), Florida Administrative Code. * * * 18. The proposed permit would create a high density subdivision which would create a multitude of small single family lots on this site. By granting the permit for this site development, the Department is condoning the intended construction of a multitude of single family residences which are totally inappropriate for the beach dune system in this area. The combined effect of the construction of single family residences on the proposed plat seaward of the coastal construction control line will maximize impacts to the beach dune system, not minimize the impact as required by the Department’s rules in Chapter 62B-33, Florida Administrative Code. Lighthouse moved to dismiss the Petition in the Permit Challenge, to strike certain allegations, and for an Order in limine in that case. The Department filed a memorandum of law in support of Lighthouse’s motion, stating, in part: Contrary to Petitioner’s argument in paragraph 2(b), the Department’s rule contains a standard for determination of “cumulative effects.” Rule 62B- 33.005(3)(a), F.A.C., provides that “[I]n assessing the cumulative effects of a proposed activity, the Department shall consider the short-term and long-term impacts and the direct and indirect impacts the activity would cause in combination with existing structures in the area and any other similar activities already permitted or for which a permit application is pending within the same fixed coastal cell.” The Department’s rules also contain a regulatory definition of “impacts” (not “cumulative impacts” as argued by the Petitioner). Therefore, consideration of future applications not yet pending with the Department is outside the scope of the Department’s permitting jurisdiction under the rule. Contrary to the arguments made by Petitioner in paragraph 2(c) and (d) construction of a “residential subdivision” is not a foregone conclusion. First, in Rule 62B-33.005(3)(a), F.A.C., it states that “[e]ach application shall be evaluated on its own merits in making a permit decision; therefore, a decision by the Department to grant a permit shall not constitute a commitment to permit additional similar construction within the same fixed coastal cell. Second, use by an applicant of the single family home general permit authorized by Section 161.053(19), F.S., and existing in Rule 62B-34.070, F.A.C., is not governed by the principle that a general permit is authorized without additional agency action. The concept of a general permit adopted by rule exists in many different permitting programs of the Department. The different permitting programs are created and governed by their organic statutes, and only those statutes (and rules promulgated under them) should be looked to for the legal principles that apply in the permitting program. (See paragraph 4. above). The case law cited by Petitioner in paragraph 2(c) of her response refers to general permits established under Chapter 403, F.S., specifically authorized by Section 408.814, F.S. Section 403.814(1) provides for use of a general permit 30 days after giving notice to the department “without any agency action by the department.” See § 403.814(1), Fla. Stat. (2005). No similar provision appears in Section 161.053(19), F.S. In addition, Section 403.814, F.S. provides for administrative review of the use of a general permit where the Department publishes or requires the applicant to publish notice of its intent to use a general permit. See § 403.814(3), Fla. Stat. (2005); Hamilton County Bd. of County Comm’rs v. State, Department of Environmental Regulation, 587 So.2d 1378 (Fla. 1st DCA 1991) and City of Jacksonville v. Department of Environmental Protection, 24 F.A.L.R. 938 (Fla. DEP 2001). By Order dated May 23, 2006, Judge Alexander struck paragraphs 6, 10, and 18 of the Petition in the Permit Challenge, holding, in part: Second, the Motion to Strike is granted in part, and paragraphs 6, 10, and 18 are stricken. The Motion to Strike paragraphs 9 and 19 is denied since paragraph 9 simply tracks the language in Florida Administrative Code Rule 62B-33.005(3)(a), and neither paragraph makes specific reference to impacts from the proposed construction of a residential subdivision. Although paragraphs 5 and 13 refer to alleged impacts to “wildlife habitat,” “drainage,” and “wind and water borne missiles during a storm,” which might arguably include matters unrelated to this action, the granting of the Motion in Limine below precludes Petitioner from introducing evidence regarding impacts to habitat other than sea turtles, the stormwater exemption, and wind and water borne missiles caused by the proposed construction of a residential subdivision. Finally, the Motion in Limine is granted, and Petitioner (and Intervenor) shall be precluded from introducing evidence in support of allegations relating to cumulative impacts caused by the proposed construction of a residential subdivision, debris and wind and water borne missiles from the proposed construction of a residential subdivision, the exemption of swales from stormwater discharge permit requirements, and any habitat impacts unrelated to sea turtles. See § 161.053, Fla. Stat. (2005); Fla. Admin. Code R. 62B- 33.005, 62B-33.007, and 62-25.030(1)(c). Petitioners have alleged in this case that Rule 62B- 33.005(3)(a) is an invalid exercise of delegated legislative authority. Lighthouse has disputed that allegation in its Motion for Summary Final Order, which is fully supported by the Department. Section 161.053(5)(a), Florida Statutes, was first adopted by the Legislature in 1983. The statute was amended without any substantive changes to its text in 1987. Section 161.053(5)(a)3., Florida Statutes (2005),2 currently states in pertinent part: Except in those areas where local zoning and building codes have been established pursuant to subsection (4), a permit to alter, excavate, or construct on property seaward of established coastal construction control lines may be granted by the department as follows: The department may authorize an excavation or erection of a structure at any coastal location as described in subsection (1) upon receipt of an application from a property and/or riparian owner and upon the consideration of facts and circumstances, including: * * * 3. Potential impacts of the location of such structures or activities, including potential cumulative effects of any proposed structures or activities upon such beach- dune system, which, in the opinion of the department, clearly justify such a permit. Rule 62B-33.005(3)(a) was amended in 1996 as follows: (3) After reviewing all information required pursuant to this Chapter, the Department shall: (a) Deny any application for an activity which either individually or cumulatively would result in a significant adverse impact including potential cumulative effects. In assessing the cumulative effects of a proposed activity, the Department shall consider the short-term and long-term impacts and the direct and indirect impacts the activity would cause in combination with existing structures in the area and any other activities proposed within the same fixed coastal cell. The impact assessment shall include the anticipated effects of the construction on the coastal system and marine turtles. Each application shall be evaluated on its own merits in making a permit decision, therefore, a decision by the Department to grant a permit shall not constitute a commitment to permit additional similar construction within the same fixed coastal cell. * * * (7) An individual structure or activity may not have an adverse impact on the beach or dune system at a specific site, however, a number of similar structures or activities along the coast may have a significant cumulative impact resulting in the general degradation of the beach or dune system along that segment of shoreline. The Department may not authorize any construction or activity whose cumulative impact will threaten the beach or dune system or its recovery potential following a major storm event. An exception to this policy may be made with regard to those activities undertaken pursuant to Subsections 16B-33.005(3)(d) and 16B- 33.006(2), Florida Administrative Code. Rule 62B-33.005(3)(a) was amended in 2000, as follows: After reviewing all information required pursuant to this Chapter, the Department shall: * * * Deny any application for an activity which either individually or cumulatively would result in a significant adverse impact including potential cumulative effects. In assessing the cumulative effects of a proposed activity, the Department shall consider the short-term and long-term impacts and the direct and indirect impacts the activity would cause in combination with existing structures in the area and any other similar activities already permitted or for which a permit application is pending within the same fixed coastal cell. The impact assessment shall include the anticipated effects of the construction on the coastal system and marine turtles. Each application shall be evaluated on its own merits in making a permit decision, therefore, a decision by the Department to grant a permit shall not constitute a commitment to permit additional similar construction within the same fixed coastal cell. Rule 62B-33.005(3)(a) currently appears as set forth in the preceding paragraph, but without the underlining. One of the provisions in Rule 62B-33.005(3)(a) that is being challenged in these cases states that the Department shall: [d]eny any application for an activity which either individually or cumulatively would result in a significant adverse impact including potential cumulative effects. In assessing the cumulative effects of a proposed activity, the Department shall consider the short-term and long-term impacts and the direct and indirect impacts the activity would cause in combination with existing structures in the area and any other similar activities already permitted or for which a permit application is pending within the same fixed coastal cell. The impact assessment shall include the anticipated effects of the construction on the coastal system and marine turtles. This provision was first added to Rule 62B-33.005 in 1996. It was amended on August 27, 2000. The other provision in Rule 62B-33.005(3)(a) that is being challenged in these cases is the requirement that: [e]ach application shall be evaluated on its own merits in making a permit decision, therefore, a decision by the Department to grant a permit shall not constitute a commitment to permit additional similar construction within the same fixed coastal cell. This provision was first added to Rule 62B-33.005 in 1996. Rule 62B-33.005 is intended by the Department to implement Section 161.053(5)(a)3., Florida Statutes. Rule 62B-33.005(3)(a) reflects the Department’s construction of the phrase “potential cumulative effects of any proposed structures or activities,” as that phrase appears in Section 161.053(5)(a)3., Florida Statutes. Petitioners disagree with the Department’s construction of the statute. Rule 62B-41.002 was first developed on August 23, 1992, as part of the newly enacted Rule Chapter 16B-41, which was later designated as Rule Chapter 62B-41. Rule 62B-41.002(28), first developed in 1992, is the precursor to Rules 62B-41.002(19)(a) and (b), which were added on October 23, 2001. Rule 62B-41.002 is intended by the Department to implement Section 161.041, Florida Statutes. Rule 62B-41.002(19)(b) reflects the Department’s construction of the phrase “potential cumulative effects of any proposed structures or activities,” as that phrase appears in Section 161.041(2)(c), Florida Statutes. Petitioners disagree with the Department’s construction of the Statute. The current language of Section 161.041(2), Florida Statutes, was adopted by the Legislature in 1987, as follows: The department may authorize an excavation or erection of a structure at any coastal location upon receipt of an application from a property or riparian owner and upon consideration of facts and circumstances, including: Adequate engineering data concerning inlet and shoreline stability and storm tides related to shoreline topography; Design features of the proposed structures or activities; and Potential impacts of the location of such structures or activities, including potential cumulative effects of any proposed structures or activities upon such beach- dune system or coastal inlet, which, in the opinion of the department, clearly justify such a permit. Rule 62B-41.002(19) was amended to its current form in 2001, as follows: Renumbered as (19) * * * “Adverse Impacts” are those impacts to the active portion of the coastal system resulting from coastal construction. Such impacts are caused by coastal construction which has a reasonable potential of causing a measurable interference with the natural functioning of the coastal system. The active portion of the coastal system extends offshore to the seaward limit of sediment transport and includes ebb tidal shoals and offshore bars. "Cumulative Impacts" are impacts resulting from the short-term and long-term impacts and the direct and indirect impacts the activity would cause in combination with existing structures in the area and any other similar activities already permitted or for which a permit application is pending within the same fixed coastal cell. The impact assessment shall include the anticipated effects of the construction on the coastal system and marine turtles. Each application shall be evaluated on its own merits in making a permit decision, therefore, a decision by the Department to grant a permit shall not constitute a commitment to permit additional similar construction within the same fixed coastal cell individual coastal construction which, if permitted as a general practice on other coastal properties in the same general area, or if added to the adverse impacts from existing coastal construction are expected to result in an adverse impact. The scope of the "cumulative impact" review under the Environmental Resource Permit (ERP) program is described in the “Basis of Review” used by the South Florida Water Management District, St. Johns River Water Management District, and Southwest Florida Water Management. Under the “Basis of Review,” cumulative impacts are considered unacceptable when the proposed system, considered in conjunction with the past, present, and future activities, would result in a violation of state water quality standards or significant adverse impacts to functions of wetlands or other surface waters. The cumulative impact evaluation is conducted using an assumption that reasonably expected future applications with like impacts will be sought, thus necessitating equitable distribution of acceptable impacts among future applications. In reviewing impacts of a current ERP project application, the agency will review impacts from pending projects and extrapolate from those impacts to see what impacts future projects could contribute, using objective criteria, such as comprehensive plans, plats on file with local governments, or applicable land use restrictions and regulations. Tony McNeal, the administrator of the Department’s CCCL permitting program, acknowledged in his deposition testimony that the last sentence of Rule 62B-33.005(3)(a) “is a way of saying that the Department is not going to be bound by its prior actions in similar cases.” However, he also explained that the sentence does not allow the Department to act inconsistently because the Department “consistently applies the same rules” to each project that comes before it and “[t]he only thing that changes are the facts surrounding the project.”
Findings Of Fact The project at issue. Respondent, Department of Transportation (Department), proposes to construct a new four-lane bascule (movable span) bridge, with a vertical clearance in the closed position of 25 feet, to span the Intracoastal Waterway (ICW) between the City of Boynton Beach (Boynton Beach), situated on the mainland, and the Town of Ocean Ridge (Ocean Ridge), situated on the adjacent barrier island. The purpose of the project is to replace the existing two-lane 50 year-old bascule bridge, with a vertical clearance in the closed position of 10 feet, that currently connects Boynton Beach and Ocean Ridge. The existing bridge, which is located approximately 700 feet south of the proposed project, is slated for removal as soon as the new bridge is built. As proposed, the approach structure and bridge spanning the ICW will be approximately 1350 feet long and 87 feet in width, and will intersect a mangrove forest on both sides of the ICW. These forests are among the few remaining mangrove forests of significance in Palm Beach County, are healthy and well flushed, and provide the benefits to the community normally associated with their presence: a source of food and shelter for fish, birds and other wildlife; a buffer from wind and water in time of hurricane and other storm events; a natural filter that maintains or improves water quality; and an ideal area to observe and study the native biota. Construction of the proposed bridge will result in the direct elimination of one acre of the 40-acre mangrove forest on the east side of the ICW, and will further adversely impact that ecosystem by bisecting that forest and thereby preventing the free exchange of waters and wildlife. Further adverse impacts to the forests on both sides of the ICW may be expected from the "shadowing" caused by the bridge structure, and by run-off if not properly contained and treated. Overall, the impacts to the forests by construction of the proposed bridge may be termed significant and adverse. In addition to the bridge, the project will require the construction of an approach road consisting of a continuation of Boynton Beach Boulevard (State Road 804) from its intersection with US1 to the proposed bridge and from the eastern terminus of the bridge to State Road A1A in Ocean Ridge. Overall, the bridge and approach road will require the acquisition of a 110-foot right-of-way for the length of the project, approximately 3200 feet. In Boynton Beach, lying on the west bank of the ICW, the impact suffered by those in the immediate area of construction will be minimal. Currently, the area surrounding the intersection of Boynton Beach Boulevard and US1 is commercially developed, and the only displacement that would occur would be a partial taking of the Boynton Lodge Motel, located at the southeast corner of Second Avenue (the continuation of Boynton Beach Boulevard) and US1. While of minimal impact to Boynton Beach, the proposed project will have substantial impacts to Ocean Ridge and its residents. Ocean Ridge, with a population of approximately 1400 people, is a "bedroom community" composed almost exclusively of single family residences and a few condominiums. Currently, some commercial development does exist in the town (a few motels and one restaurant) but those properties were rezoned some years ago to eliminate such use and within a few years the town will be exclusively residential in character. As proposed, the new bridge and approach road would traverse the mangrove forest on the east side of the ICW, which is within the territorial limits of Ocean Ridge, and continue east, parallel to and north of Coconut Lane, a residential street, until it connected with State Road A1A at the south side of the Ocean Ridge Town Hall. State Road A1A, which runs north and south, is a two-lane "scenic highway," and all relevant land-use plans call for it to remain a two-lane road. Built as proposed, the new four-lane road would end at a "T"- intersection with State Road A1A at the south side of the Ocean Ridge Town Hall, and require signalization. There, new approaches for the proposed road from State Road A1A traveling south would require the taking of property from the front of the town hall. If taken, the sidewalk, lawn and shrubbery that separate the town hall from State Road A1A would be removed and the new roadway would be within 10 feet of the town hall. Further, if queued because of the signalized intersection, traffic traveling south on State Road A1A could block ingress and egress to the town hall from State Road A1A. The Department has, however, proposed an alternate access to the town hall from the new road which would ameliorate the access problems. 1/ In addition to impacting the mangrove forest and town hall, the new road will also impact the residents of Coconut Lane. Coconut Lane is a residential street comprised of single family homes, including that of petitioners, Dr. and Mrs. Augusto Lopez-Torres. Dr. Lopez-Torres is a practicing physician and his wife a sculptress. The Lopez-Torres' home, purchased in approximately 1979, is located on the north side of Coconut Lane and is surrounded on the west and north by mangrove forest. The house, which faces Coconut Lane, is a two-story spanish style home built in 1922. From the back sun room, which is used as a studio by Ms. Lopez-Torres, the home overlooks a swimming pool and the surrounding mangrove forest. 2/ Built as proposed, the right-of-way for the approach structure and road would require the taking of a substantial portion of the Lopez-Torres' property at the rear of their home, including their garage apartment and up to one-half of their swimming pool and would encroach to within 20 feet of the back of their house. Under such circumstances, their interests, as well as the interests of the other residents on the north side of Coconut Lane, would be substantially and adversely affected by the proposed project. 3/ The existing alignment Currently, Boynton Beach and Ocean Ridge are connected by a two-lane bridge at Ocean Avenue, approximately 700 feet south of the proposed project. That bridge, built in 1936, is in poor condition and in need of replacement. 4/ In 1961, anticipating that a four-lane bridge would be built on Ocean Avenue, the Department four-laned Ocean Avenue from State Road A1A to US1, and provided an additional lane on each side for parking. Currently, such road provides a 90-foot right-of-way that does not impact any environmentally sensitive areas. East of the ICW, Ocean Avenue connects with State Road A1A in Ocean Ridge. Along this stretch, Ocean Avenue is currently fronted by single family residences, which are built on deep lots and set well back from the street. West of the ICW, after about 2 blocks, Ocean Avenue connects with US1, a four-lane north-south artery. Development within this area is predominately commercial, as the intersection of Ocean Avenue and US1 was the historic center of the Boynton Beach business district. Located at the north side of the bridge is a restaurant and marina and at its south side is a five-story condominium complex. The remainder of the two-block stretch of Ocean Avenue is occupied by a small regional shopping center and smaller commercial buildings. From Ocean Avenue, access to State Road 804 (Boynton Beach Boulevard), the main east-west artery in the area, can be had by traveling north on US1 to its intersection with State Road 804, a distance of approximately 700 feet. Development through this area is likewise commercial. The Department's initial evaluation. In 1975, the Department commenced its project development/environmental study to evaluate alternatives available upon replacement of the Ocean Avenue bridge. 5/ At that time, a study team, consisting of an environmentalist, noise and air quality expert, land planner and engineer was assembled to prepare preliminary plans and a Draft Negative Declaration. 6/ Pertinent to this case, the Department considered two alternatives for a replacement bridge: a four-lane 25-foot clearance bascule bridge at Ocean Avenue or one at Second Avenue (the continuation of Boynton Beach Boulevard). 7/ Both bridges would have four 12-foot wide traffic lanes and substantially the same "footprint," but the Second Avenue bridge would be somewhat longer with a slower rise; 5 percent as opposed to 6 percent at Ocean Avenue. The bridges would be symmetrical in design, with the Second Avenue bridge having the design characteristics heretofore noted. The Ocean Avenue bridge would be an 80-foot wide structure built within the existing 90-foot right-of-way. On the east side of the waterway, an embankment approach was to be constructed. This would have required the acquisition of additional right-of-way, but at the time these proposals were considered (1977) the impacted lands were vacant. On the west side of the waterway, the structure would continue to grade at a point short of 6th Street. Direct access to Ocean Avenue for the businesses and condominiums lying east of 6th Street would be eliminated, but each would, under the Department's proposal, be accorded assess to Ocean Avenue via 6th Street. Total construction and right-of-way costs for the Ocean Avenue alignment were estimated in 1977 to be $5.5 million, and for the Second Avenue alignment to be $6.8 million. Following the study team's review, the Department submitted a Draft Negative Declaration to the Federal Highway Administration (FHWA) recommending that the bridge be built at the Second Avenue alignment. FHWA approved the Draft Negative Declaration in September 1976. Consistent with existent law, the Department held a public hearing in Boynton Beach on February 9, 1977, to accord the public an opportunity to express its views regarding the proposed project. By far, the majority of public input favored retention of a bridge at its current location. Favoring such retention were Ocean Ridge, residents of Ocean Ridge, and the businesses along Ocean Avenue. Opposing such retention, and favoring the Second Avenue alignment, were Boynton Beach and residents of Ocean Avenue on the Ocean Ridge side of the ICW. In August 1977, the Department issued its Final Negative Declaration, and concluded that a new 25-foot bascule bridge should be built at the Second Avenue alignment and that no significant adverse environmental impact would result from such alignment. The Final Negative Declaration concluded: Alternative Location B, the 25 foot clearance bascule bridge on new location along the line of NE Second Avenue was selected for the following reasons: The old Ocean Avenue bridge could remain in use during the construction period. This was important both for emergency access, especially during a hurricane, and in terms of inconvenience and user cost. Location B avoids the potential damages to the condominium apartments and the restaurant and three other businesses on Ocean Avenue east of 6th Street. Noise impacts and loss of view would have affected the condominium, and the loss of direct access to Ocean Avenue would have adversely affected the businesses. Conditions would have been even more difficult during the construction period. The following considerations also favored Alternate B, although they were secondary to and b). The Alternate B Location results in the improvement in the traffic flow patterns on the Boynton Beach side of the waterway. This is not of great importance because the traffic projections show that only 25% of the vehicles crossing the bridge intend to proceed across U.S. 1, the others turn onto U.S. 1. The businesses in the general area of downtown Boynton Beach would not be subject to the loss of trade which might result if the facility were closed during the construction period, and all traffic detoured to SE 15th Street. It was recognized that Alternate Location B had certain disadvantages (listed below), but these were overridden by the above noted considerations. Alternate B has some environmental impacts on a natural area on the east side of the waterway which contains some wetlands and mangroves. Impacts here may be mitigated by extending the bridge structure to eliminate some approach fill, and by replanting of mangroves. This will be investigated in the design and permitting stage. It was claimed that Alternate B would be the cause of additional traffic into the Town of Ocean Ridge because it would make travel from I-95 via NE Second Avenue more convenient. The Department of Transportation does not feel that an improvement of this type will materially influence a driver in his choice of destination. It was claimed that Alternate B would cause additional pressures for development in Ocean Ridge. The Department of Transportation will consider the use of a limited access right-of-way in Ocean Ridge to avoid this possibility. It was claimed that the relocation of the bridge from Ocean Avenue would damage the businesses on Ocean Avenue by removing the traffic from their street. The construction and right-of-way acquisition costs of Alternate Location B are greater. The Department's avowed rationale for selecting the Second Avenue alignment over the Ocean Avenue alignment, as set forth in its Final Negative Declaration, lacks substance. The fact that the Ocean Avenue bridge could remain in use during construction of the new bridge is of little import since there are numerous bridges that connect the barrier island with the mainland, the closest of which is at 15th Avenue in Boynton Beach, one mile south of Ocean Avenue. Considering the available access and the limited population of the barrier island, the need for continued maintenance of the bridge during the replacement period for emergency access, as well as inconvenience and user cost, is de minimis. The Department's conclusion that noise impacts and loss of view would have affected the condominium, and the loss of direct access to Ocean Avenue would have adversely affected the restaurant and three other businesses on Ocean Avenue east of 6th Street does not bear scrutiny. First, while the Final Negative Declaration does conclude that if the new bridge is built with a steel grid floor having noise characteristics similar to the existing bridge, which was built in 1936, that adverse noise impacts will occur, it also concludes: During the detailed design phase, an investigation could have been made to determine if steel gird flooring with lower noise characteristics is available, or if it is feasible to substitute a smooth steel plate deck with an asphaltic overlay... Why the Department would defer until the design phase this consideration is not explained of record. It is, however, apparent that the Department made no investigation during the site selection process to ascertain whether or at what cost alternative materials or designs were available that would have obviated any noise impact to the condominium. Loss of view to the condominium is, at best, minimal since its view is predominately east, across the ICW, to the Atlantic Ocean. While loss of access to Ocean Avenue may have impacted the subject businesses, the Department's plan for the Ocean Avenue alignment included the acquisition of an alternate accessway that would have provided them access to Ocean Avenue at 6th Street. More importantly, the removal of the Ocean Avenue bridge would have had a lasting adverse impact to those same businesses, as well as all others fronting Ocean Avenue. The "improvement in the traffic flow patterns on the Boynton Beach side of the waterway" (the elimination of the "jog" between Ocean Avenue and State Road 804) is, by the Department's own admission and the proof at hearing, of no significant import. The Department's final basis for selecting the new alignment, that: ... business in the general area of downtown Boynton Beach will not be subject to the loss of trade which might result if the facility were closed during the construction period, and all traffic detoured to SE 15th Street... is likewise unpersuasive. The Department undertook no study that would demonstrate what businesses existed in the "general area" of downtown Boynton Beach or how, if at all, they would be affected by the closure of the Ocean Avenue alignment during construction. While the businesses along Ocean Avenue would be affected if the bridge was closed during construction, the permanent removal of that structure is by far more significant to their enterprises than its temporary closure. In selecting the Second Avenue alignment, the Department did note "certain disadvantages," but felt they were "overridden by the above noted considerations." Among those disadvantages was the adverse impact to one acre of the mangrove forest. The Department undertook, however, no meaningful evaluation of the impacts its project would have on the environment, and failed to address the impact of "shading" and other adverse impacts that could occur from construction of the bridge. Rather, the Department deferred all considerations to the design stage to see if impacts could be mitigated. Such approach does not comport with the Department's obligation to assess the environmental impacts of its project during site selection, and leaves its analysis wanting. In all, the Department's decision in 1977 to relocate the bridge to the Second Avenue alignment did not include a balanced consideration of the factors it was charged by law with evaluating. The Department's second evaluation. Following the Department's issuance of it Final Negative Declaration in 1977, nothing was done on the project until 1980 due to a lack of funding. Following that time, the Department employed a consultant to prepare the construction and right-of-way maps. These plans were completed in June 1982. In August 1983, the Department's right-of-way acquisition agents performed a routine review of the project in order to activate the right-of-way acquisition phase. They reported that the updated right-of-way costs had substantially increased on the Second Avenue alignment, that future average daily traffic did not justify the need for a major improvement, and that a reassessment of the project was justified since a number of years had elapsed since the previous impact was assessed. 8/ Notably, in the intervening years since the Department's Final Negative Declaration, Coconut Lane had changed from a street with one vacant house on its north side to a street that was substantially built-out. Ocean Avenue, east of the waterway, had likewise built-out, and some of the lots the Department had proposed in 1977 to acquire for an embankment approach, if the Ocean Avenue alignment had been selected, were then occupied by houses. In the intervening years, Ocean Ridge had also adopted a comprehensive plan which, pertinent to this case, sought to preserve the mangrove forests, "scenic" A1A, and the bridge at its existent location. Considering the significant changes that had occurred between 1977 and 1984, a reassessment of the project was justified. The Department, following the report of its right-of-way acquisition agents, did not, however, reassess the project or address the comprehensive plan of Ocean Ridge. Rather, it relied on its Final Negative Declaration of 1977 as having adequately assessed the propriety of its choice between the two alignments. For the reasons heretofore discussed, such reliance was misplaced. Instead of reevaluating the project, the Department directed its Bureau of Value Engineering to simply undertake a study of the feasibility of replacing the bridge and providing improvements on the existing alignment within existing right-of-way, without new takings, to minimize impact. That bureau's report, issued in March 1984, concluded that while it was possible to build a four-lane bridge on the existing alignment, without new takings, that the apparent savings of $5.3 million envisioned by such an option over the Second Avenue alignment was offset by the accumulation of performance and design compromises that needed to be made. 9/ The bureau, as a consequence of Governor Graham's Executive Order No. 81-105, issued September 4, 1981, also considered whether two or four lanes were needed for the bridge over the waterway. It concluded that, if the Department's traditional practice of assessing need for a road or bridge based on average daily traffic (ADT) were utilized, the "future road network, population, growth, attraction, travel patterns and forecasts of the Palm Beach County Metropolitan Planning Organization [MPO]" do not justify widening to four lanes. The bureau suggested, however, that the four-lane alignment at Second Avenue should be retained because peak hour traffic is much heavier than ADT. Its report did not, however, quantify peak hour traffic, and, as discussed infra, such traffic does not justify widening to four lanes. By memorandum of March 16, 1984, the Department's Secretary proposed "to go with the Boynton Beach Boulevard plans," and concluded: It is my professional opinion that realignment to Boynton Beach Boulevard will better serve the transportation and economic needs of the citizens and merchants with the City of Boynton Beach.... No mention was made of the needs of the citizens of Ocean Ridge or the region. On March 26, 1984, Lopez-Torres filed a petition for a section 120.57(1) hearing to contest the Department's decision, and the matter was referred to the Division of Administrative Hearings. Subsequently, petitions to intervene were granted on behalf of Ocean Ridge, Boynton Beach and the Audubon Society of the Everglades. The Audubon Society of the Everglades is a Florida nonprofit corporation whose purpose is to protect environmental resources and to promote the use, enjoyment and public awareness of environmental resources. Its membership uses, enjoys and frequents the mangroves forest and adjoining waters that would be affected by the proposed project. Adequacy of the Department's evaluation. While the proof at hearing demonstrated that the existent Ocean Avenue bridge needed to be replaced, it also demonstrated that the Department's evaluation of the four-lane alignment was deficient, as heretofore discussed, and that the need for four lane improvements on either the Second Avenue alignment or Ocean Avenue alignment could not be justified by average daily traffic or peak-hour traffic. Rather, a two-lane configuration would be adequate to handle traffic within the Department's 25-year planning horizon or within any other reasonably reliable horizon. Further, it is not necessary to eliminate the 700-foot "jog" on US1. Rather, a simple extension in the length of the turn lanes can cure any existing or foreseeable traffic engineering problems at that location. In evaluating alternatives upon replacement of the existing structure, the Department overlooked or failed to seriously address a two-lane configuration. At hearing, conceding that a two-lane structure would provide adequate capacity, the Department sought to buttress its decision to utilize a four-lane structure by alluding to other factors that could lead one to elect such configuration over a two-lane configuration, such as: the existence of four-lane approach roads and "Q" build up. Such proof is not, however, compelling in this case because the record demonstrates that the Department did not address the design of a two-lane structure and, therefore, never evaluated or attempted to conform such structure to the existent site. Other testimony offered by the Department, that the "footprint" of a two-lane structure would not substantially vary from that of a four-lane structure is likewise not persuasive. Rather, the two-lane structure would require less right-of-way than a four-lane structure, and its construction costs would be less. 10/ In evaluating the replacement of the bridge, the Department has established a 25-foot clearance ostensibly because it is mandated by the Coast Guard or Corps of Engineers, and because it will reduce the bridge openings experienced by the current 10-foot clearance bridge by two thirds. While such clearance will reduce bridge openings, and thereby increase the life of bridge machinery and reduce inconveniences to motorists, it is not mandated by the Coast Guard or the Corps of Engineers. Since the movable bascule bridge provides unlimited clearance in the open position, those agencies do not normally mandate the closed vertical clearance; however, they do seek to obtain as much clearance as possible during their permitting process. Such agencies have recently permitted 21-foot clearances. Considering the fact that the height of the replacement structure may reasonably bear some relationship to the adverse impacts to the area on Ocean Avenue east of 6th Street, the Department erred in failing to consider alternative elevations for the replacement structure. While relocation of the bridge to Second Avenue is consistent with the MPO and the comprehensive plans of Palm Beach County and Boynton Beach, it is contrary to the comprehensive plan of Ocean Ridge and the Department made no attempt to harmonize such plans. Conclusion Based on the findings heretofore set forth, it is concluded that in electing to site the subject bridge at Second Avenue the Department abused its discretion because it failed to appropriately take into account future as well as present needs, all pertinent local government comprehensive plans, and the total environment of the community and region, including land use, entrepreneurial decisions, population, travel patterns, traffic control features, ecology, stormwater management plans, pollution effects, aesthetics, safety, or social and community values.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which vacates the Department's decision to relocate the bridge between Ocean Ridge and Boynton Beach. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of June 1989. WILLIAM J. KENDRICK 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 2nd day of June, 1989.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: On March 26, 1991 Venice applied to the Department for a CCCL permit to construct a 475 foot wooden retaining wall seaward of the coastal construction control line and to place a shell road immediately adjacent to, and landward of, the retaining wall from approximately 100 feet south of Granada Avenue to approximately 50 feet south of Ocala Street on Venice's right-of-way of The Esplanade in Venice, Florida. The Petitioners Roy B. and Patricia B. Olsen are residents of Venice, Florida and reside at 304 Ocala Street. They own Lot 1, The Esplanade, which is immediately east and south of the southern terminus of the proposed retaining wall. Petitioner, Nina Howard is a resident of Venice, Florida and resides at 721 Ocala Street. Ms. Howard's residence is located to the south and across Ocala Street from the site of the proposed retaining wall. Intervenors, Roger and Irene Fraley are residents of Venice, Florida and reside at 221 The Esplanade South, which is immediately landward (east) of the site of the proposed retaining wall. Intervenors, Howard and Evelyn Barbig are residents of Milton, Florida but are owners of lot 4, The Esplanade South, located north of the Fraleys' property and immediately landward (east) of the site of the proposed retaining wall. The Petitioners oppose the granting of the CCCL permit. The Petitioners have expressed their opposition to the granting of the CCCL permit based upon their belief that the construction of the proposed retaining wall will have adverse impacts to the beach dune areas and to the adjacent properties. Specifically, it is their belief that the construction of the proposed retaining wall will accelerate the erosion of the beach dune areas and the adjacent properties. The Petitioners disagree with the conclusion reached by the Department in the final order that, "the activities indicated in the project description are of such a nature that they will result in no significant adverse impacts to the beach dune areas or to the adjacent properties." Intervenors, Fraley and Barbig are in favor of the issuance of the CCCL permit because it will prevent seasonal erosion which results in exposure of, and damage to, the sewer line along The Esplanade, and will provide public access over the shell road within the right-of-way of The Esplanade for those properties between Granada Avenue and Ocala Street that do not have public access from time to time due to the seasonal erosion. On April 17, 1991 the Department advised Venice that the CCCL permit application was determined to be incomplete, and advised Venice of those things needed to make the application complete. Subsequent to this letter, the Department determined that, although the application was not an emergency, it did deserve "fast tracking", and assisted Venice in bringing the application to a "complete" status. On April 25, 1991 the Department issued a Final Order administratively approving CCCL permit number ST-820 for the construction of a wooden retaining wall and shell access road as described in Venice's application. On April 26, 1991 the Department issued a Notice to Proceed Withheld to Venice, which advised Venice not commence construction of the project authorized by the permit until certain permit conditions had been met. This notice also gave notice to those whose substantial interests would be affected by the proposed project of their right to a formal hearing. An engineering assessment was made for this project, and although not a formal written engineering assessment, the engineering assessment did consider all conditions of adverse impacts. In making this assessment, the Department considered and reviewed available aerial photographs, photographs taken of the area of the proposed project site and erosion tables concerning the area. A formal written engineering assessment is not required by statute, rule or Department policy. This assessment also indicated that there are severe impacts due to winter storm events which contribute to the seasonal profile changes. The seasonal beach profile is depicted by the build up of the beach (sand) during the summer months and the removal (erosion) of beach (sand) during the winter months. However, due to an inlet, a major rock-out cropping and the rock grain structures located in the vicinity of the proposed site, there is a limitation on the natural movement of sand along the coast which prevents natural renourishment and results in severe erosion in the area of the proposed site during the winter months. This erosion during the winter months causes the sewer pipes along The Esplanade to be exposed and sometimes broken, and prevents access over the right-of-way of The Esplanade to certain properties located along The Esplanade between Granada Avenue and Ocala Street. The wooden retaining wall is designed to retain sand just landward of the wall and allow a shell access road to be placed on the right-of-way of The Esplanade. The wooden retaining wall will be constructed as follows: (a) 8" x 20' wooden piling will be placed on 6' center and driven to an approximate depth of -14.00 (NGVD); (b) 2" x 8" planking will be attached to the landward side of the piling from the top of the piling (+7.0 NGVD) to a depth of appropriate 7 feet (0.00 NGVD); (c) with a filter "x" cloth covering the planking on the landward side. At the time of the application, the existing beach was +5.0 (NGVD) which would leave approximately 2 feet of the retaining wall exposed on the seaward side. The purpose of the retaining wall is to protect the shoreline in the immediate vicinity of The Esplanade and thereby protect the sewer line and access road which are landward of the seaward (west) right-of-way line of The Esplanade. The proposed wooden retaining wall is to be located as far landward as possible, and will be the minimum size and configuration to protect the sewer line and the shell access road along The Esplanade right-of-way. The retaining wall is designed to be temporary in nature in that its design will not allow it to survive under a major storm event. In that regard, the retaining wall comes within the definition of a minor structure as defined by rule and does not require a formal written review. The access road will enable Venice to establish a public road on public right-of-way for ordinary and emergency utilization by the residents and Venice. Previous attempts by Venice to protect the sewer line by "shoring up" the area with sand bags have proven unsuccessful. A wooden retaining such as the one proposed would be the next logical step to prevent the exposure and damage to the sewer line and still be consistent with the coastal armoring policy adopted by the Governor and Cabinet in December 1990. Dr. Al Deveraux, Bureau Chief, Control Engineering, personally viewed the site prior to approval of the project and waived compliances with certain provisions of the application. There is sufficient competent substantial evidence to establish that: erosion is occurring in the area of the proposed site without the presence of the proposed retaining wall; without the proposed retaining wall, Venice will be unable to prevent that erosion, particularly during the winter storm events, which will result in exposure and damage to the sewer line and lack of public access to certain properties located along The Esplanade between Granada Avenue and Ocala Street; and upon construction of the retaining wall, the beach dune area and the adjacent properties to the south of the proposed project will experience some increase in erosion above that presently occurring, but it will be minimal and will not have a significant impact on the area. The application submitted by Venice was processed and approved in accordance with statutes, rules and Department policy. There is sufficient competent substantial evidence to establish that granting CCCL permit number ST-820 and constructing the retaining wall and access road as set forth in Venice's application would be in the best public interest. The Petitioners' expert witness on coastal engineering concluded that there would be substantial erosion of the beach dune area and adjacent properties south of the proposed retaining wall as a result of constructing the retaining wall. However, this conclusion was not supported by competent substantial evidence. Special permit condition 1 requires Venice to provide the Department with a Sea Turtle Protection Plan approved by the Florida Marine Research Institute in St. Petersburg, Florida. This special condition takes into account the Department's policy for the protection of sea turtles as described in Rule 16B-33.005(9), Florida Administrative Code. The project is consistent with the thirty-year erosion projection and is not located seaward of that line.
Recommendation Having considered the foregoing findings of fact and conclusions of law, it is, accordingly recommended that the Department enter a Final Order issuing CCCL permit number ST-820 to the City of Venice, Florida subject to all the special conditions contained therein, and adding one other special condition requiring the City of Venice, Florida to monitor the beach dune system and adjacent properties south of the project site on a semi-annual basis for a period deemed necessary by the Department, and report any accelerated erosion that might occur in that area to the Department for review and action. RECOMMENDED this 27th day of December, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 1991.
Findings Of Fact Mariposa Road appears on the plat of Ramrod Shores Marina Section subdivision (the Subdivision), which was filed in the official records of Monroe County in 1960; and on revisions of the original plan, one of which was filed in 1963, and the more recent of which was filed in 1969. On February 9, 1960, Monroe County accepted the dedication of Mariposa Road, and the County has owned it since. Mariposa Road borders the Subdivision on the east, separating it from Torch Ramrod Channel which leads into Niles Channel which leads into the Gulf of Mexico to the north; to the south Torch Ramrod Channel leads into Newfound Harbor which opens onto the Atlantic Ocean. Mariposa Road runs from State Road 4 northerly through a tidal mangrove community along the water's edge to the northern edge of the Subdivision. Midway, Angelfish Road meets is perpendicularly. Cape Sable Corporation, the original developer of the Subdivision, trucked in oolitic limestone fill to construct Mariposa and Angelfish Roads, and to repair the roads after occasional washouts. In 1968 or 1969, Sayward Wing drove a Studebaker north on Mariposa Road from its intersection with State Road In 1969, James Lewis drove south on Mariposa Road. In his Lincoln, he was unable to drive up onto State Road 4 where Mariposa Road dead ends into it, but the found the road passable otherwise. By October of 1974, all fill placed on Mariposa Road south of Angelfish road had washed out. In October of 1974, or shortly before, a bulldozer cleared the road site south of Angelfish Road. In this stretch, the centerline of the marl roadbed was three to four tenths of a foot above the national geodetic vertical datum. In 1975, and again the following year, Monroe County placed fill on Mariposa Road. In June of 1976, there was fill on the site and a road ran north from Angelfish Road but there was no fill in Mariposa Road's roadbed south of Angelfish Road. In August of 1976, there was a standing water in the Mariposa roadbed between State Road 4 and Angelfish Road. By January of 1977, and possibly as early as November of 1976, rock fill had been spread in the roadbed from State Road 4 to north of Angelfish Road, however, and the roadway was complete. By October of 1977, 96 cubic yards of fill had been placed in the roadbed, but water stood on both sides of the roadway. About 278 cubic yards of fill had been placed on Angelfish Road. On the day of the hearing, fill had been placed in the Mariposa roadbed to a height two or three feet above adjacent ground, making the road two or three feet higher than it had been in January of 1977. The road was higher and wider than it had been in October of 1977. The area landward of Mariposa Road and north of Angelfish Road was dry, while much of the area immediately landward of Mariposa Road and south of Angelfish Road was wet. Sometimes water stands a foot deep west of Mariposa Road. Wetland vegetation predominated on lot 11 in block 4 and most of lots 12, 13 and 14 in block 2 of the Subdivision, all of which lie west of Mariposa Road. The tidal mangrove community intersected by Mariposa Road still supports wading birds and various marine for organisms, including killifish, needlefish and jelly fish. The mangroves' root systems stabilize the shoreline and filter out certain substances which would otherwise run off into the channel. Decaying plant matter produced by red and spider mangroves supports various microorganisms which constitute an early link in the food chain culminating in commercial fisheries. Mariposa Road separates plan matter on the west side of the road from the waters of Torch Ramrod Channel. In October of 1977, the rock which was used to build Mariposa Road was loosely packed. Water from Torch Ramrod Channel percolated through the road even when it was not high enough to move across the road in a sheet, which sometimes happened. There were also low lying places in the road through which tidal waters flowed to the landward side of Mariposa Road. With the addition of fill since then, water reaches wetlands west of the road only by percolation or capillary action, or in the form of rainfall. The wetlands are impounded and unable to drain into the channel. Significantly less frequent tidal inundation coupled with constant evapotranspiration will increase the salinity of the remaining water, which makes survival of the existing mangroves doubtful. These mangroves, which do not attain any great size because of the limiting effect of the caprock in the area, exhibited no signs of stress in October of 1977. On the day of the hearing, however, a biologist visited the site and concluded that the mangroves were suffering from stress and might die off altogether in as little two years, as a result of the interference with tidal action caused by the rock fill. Removal of the fill would ten to restore the mangroves west of Mariposa Road to health and would permit decaying plant matter and related microorganisms on the landward side of Mariposa Road to contribute to the ecosystem of Torch Ramrod Channel; several of the Subdivision lots would be opened to waters of the State. In October of 1977, respondent admitted repeatedly causing fill to be deposited in the Mariposa roadbed. Petitioner has never issued a permit authorizing respondent to place fill on Mariposa Road, not has respondent applied to petitioner for such a permit. Monroe County never authorized respondent place fill material or anything else on Mariposa Road. Petitioner's exhibit No. 7). Before March 8, 1979, petitioner reasonably expended six hundred four dollars and seventy-nine cents ($604.79) in investigating the source of the fill. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the amended notice of violation. That respondent pay petitioner six hundred four dollars and seventy- nine cents ($604.79). That respondent, within twenty days of entry of the final order, file an application for a permit or submit a proposed restoration plan and compliance schedule to petitioner for approval. DONE AND ORDERED this 9th day of August 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: H. Ray Allen, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 David Paul Horan, Esquire 513 Whitehead Street Key West, Florida 33040
The Issue The issue is whether Franklin County (County) has given reasonable assurance that it satisfies all requirements for an after-the-fact permit authorizing the construction of a rock revetment seaward of the coastal construction control line (CCCL) on Alligator Drive, also known as County Road 370.
Findings Of Fact The Nature of the Dispute The origins of this dispute date back a number of years. In short, the County currently has two adjoining revetments seaward of the CCCL on County Road 370 (Alligator Drive) located on Alligator Point in the southeastern corner of the County.1 County Road 370, situated immediately adjacent to the Gulf of Mexico, is a vulnerable structure and eligible for armoring. See Fla. Admin. Code R. 62B-33.002(64). The old revetment is permitted; the new revetment is not. Pursuant to a Department enforcement action directed at both revetments, the County applied for an after-the-fact permit to authorize the construction of the new revetment. See Case No. 12-3276EF. The two revetments, totaling around 2,800 feet in length, abut County Road 370 and join near the intersection of Alligator Drive and Tom Roberts Road. The road itself is around 50 or 60 feet from the edge of the revetments. The old revetment extends around 2,000 feet west of the intersection while the new revetment extends 800 feet east of the intersection. There is a curve in the road at the intersection, and at that point the road elevation drops two or three feet for an undisclosed distance. The revetments, however, run in a straight line. There is no beach and dune system in front of the old revetment, while a small amount of exposed sand is located on the far eastern end of the new revetment. Due to storm events over the years, unauthorized debris has been placed on top of the old revetment by the County. Under the terms of the enforcement action, the County is required to remove the debris. This will reduce the height of the old revetment by several feet below its original height of nine feet National Geodetic Vertical Datum (NGVD).2 Where the two revetments join, however, the height differs by only around a foot. The Bank owns property across the street from the old revetment and alleges that, for several reasons, the site and design of the new revetment, coupled with the reduction in height of the old revetment, will cause erosion of the shoreline around the old revetment and expose County Road 370 and the adjacent upland Bank property to erosion. Although the current design and location of the old revetment have been finalized through prior agency action, the Bank has asked that the permit be denied unless the County relocates rock boulders from the new to the old revetment and raises its height back to nine feet NGVD. The County asserts that the Bank's real aim here is to require the County, at taxpayer expense, to reconstruct the old revetment to its original height. Otherwise, the Department will not waive the 30-year erosion control line restriction and allow the Bank to fully develop its property that is seaward of the CCCL. See § 161.053(5)(b), Fla. Stat. The Old Revetment Since the late 1970s, the County has owned and maintained that portion of County Road 370 that is the subject of this dispute. In May 1986, the Department of Natural Resources, which was later merged with the Department, issued to the County CCCL Permit No. FR-204 for the construction of the old revetment, then 1,500 feet long. The revetment was located approximately 350 feet east of Department Reference Monument R-211 to approximately 150 feet west of the Department Reference Monument R-213. In November 1994, the Department issued to the County CCCL Permit No. FR-446 for the re-construction of the old revetment, as well as a 500-foot extension of the eastern limits of the structure with granite boulders. The revetment, as extended, is located approximately 540 feet west of Department Reference Monument R-212 to approximately 140 feet east of Department Reference Monument R-213. The permit did not authorize placement of any construction debris within the revetment. With the extension, the total length of the old revetment is now approximately 2,000 feet. After an application for a joint coastal permit to conduct a beach and dune restoration project was filed by the County in September 2006, a Department site inspection revealed the presence of concrete debris and other debris material stacked on top of the old revetment. A debris removal plan was formulated by the Department, which was intended to be incorporated as a special condition in the joint coastal permit. In May 2011, the joint coastal permit was approved and included a debris removal plan. Because of financial constraints, however, the County did not undertake and complete the work relating to the beach and dune restoration plan or the debris removal plan. In January 2012, another inspection was conducted by the Department to document how much debris was in the old revetment and where it was located. The inspection revealed the presence of a significant amount of concrete debris and other debris material scattered throughout the revetment and continuing eastward. That same month, largely at the urging of the Bank, the Department issued a one-count Notice of Violation (NOV) alleging that after a storm event in July 2005, the County placed unauthorized construction debris and other debris material in the old revetment seaward of the CCCL, and that the debris still remained within the footprint of the revetment. See Case No. 12- 3276EF. (The Bank unsuccessfully attempted to intervene in the enforcement action.) As corrective action, the County was required to remove all debris, seaward of the CCCL, from and adjacent to the footprint of the old revetment no later than 60 days after the end of the hurricane season. That work has not yet been performed, probably because the work on both revetments will take place at the same time. After the debris is removed, the height of the old revetment will vary from between five and eight feet NGVD rather than the original nine-foot height. This was not the relief that the non-party Bank desired in the enforcement action. Instead, the Bank has always wanted the old revetment to be reconstructed to the nine-foot NGVD standard authorized in the original construction permit. Even so, the enforcement action is now final, as no appeal was taken by the County. Except for the unauthorized debris, the old revetment meets all Department standards. The New Revetment Under emergency circumstances, between September 2000 and July 2005 the County placed material, including granite rock boulders and debris material, in a location east of the old revetment, seaward of the CCCL. The construction activity is located approximately 140 feet east of Department Reference Monument R-213 to approximately 80 feet east of Department Reference Monument R-214 and is around 800 feet in length. However, the County did not obtain a permit for the temporary structure within 60 days after its construction, as required by section 161.085(3), Florida Statutes. In July 2005, Hurricane Dennis made landfall in the Florida Panhandle causing damage to the shoreline along Alligator Drive. As an emergency measure after the storm event, the County placed rock boulders that had been displaced back into the new revetment seaward of the CCCL. The County also placed other unauthorized concrete debris and debris material within the footprint of the rock revetment seaward of the CCCL. Again, no timely authorization for this work was obtained by the County. In August 2012, the Department issued an Amended NOV in Case No. 12-3276EF adding a second count, which alleged that the County had failed to obtain a permit for the placement of the rock boulders and unauthorized debris. On April 18, 2013, the Department issued a Final Order in Case No. 12-3276EF. As to Count II, it gave the County two options for corrective action: (a) that the County submit "a complete permit application for a rigid coastal armoring structure located between Department reference monuments R-213 and R-214 that complies with all applicable Department permitting rules and statutes"; or (b) that "the County remove all material placed seaward of the CCCL pursuant to a Department approved debris removal plan[,]" leaving that portion of County Road 370 without a revetment. 2013 Fla. ENV LEXIS 16 at *16. Desiring to protect its infrastructure, the County opted to apply for an after-the-fact permit. The Permit Application In March 2013, the County filed an application for an after-the-fact permit for the construction of the new revetment. As directed by the Department, the County proposes to construct a new revetment located between Department Reference Monuments R- 213 and R-214. The height of the new revetment will be around nine feet NGVD, while its slope will be one vertical to three horizontal. The old revetment is not quite as steep, having a slope of one vertical to two horizontal. The application includes a debris removal plan for the removal of construction debris as well as other debris scattered through the new revetment. Construction debris occupies a large portion of the new revetment and largely appears to be associated with storm damaged concrete sidewalk. All derelict concrete and asphalt material that is located water ward of Alligator Drive and landward of the mean high water line is to be removed. Both the County and its engineering consultant will monitor the work at the project. After reviewing the application, the Department proposed to issue after-the-fact CCCL Permit FR-897. The Bank then filed its Petition, as later amended. Petitioner's Objections As summarized in its PRO, the Bank alleges that the County did not give reasonable assurance that the following statutory and rule provisions have been satisfied: section 161.053(1)(a), which provides that special siting and design considerations shall be necessary seaward of the CCCL "to ensure protection of . . . adjacent properties"; rule 62B-33.005(2), which requires that the applicant provide the Department with sufficient information to show that adverse impacts associated with the construction have been minimized and that construction will not result in a significant adverse impact"; rule 62B-33.005(3)(a), which requires that the Department "[d]eny any application for an activity which either individually or cumulatively would result in a significant adverse impact including potential cumulative effects"; rule 62B-33.0051(2), which provides that armoring "shall be sited and designed to minimize adverse impacts to the beach and dune system, marine turtles, native salt-tolerant vegetation, and existing upland and adjacent structures"; and rule 62B-33.0051(2)(a), which requires armoring to "be sited as far landward as practicable to minimize adverse impacts . . . on existing upland and adjacent structures." See PRO, pp. 16-17. A common thread in these regulatory citations is that a revetment should be constructed in a manner that does not cause adverse impacts on "adjacent property." Except for the above cited provisions, no other permit requirements are contested, and the County's prima facie case satisfied those other requirements. The Bank's odd-shaped property, acquired in a foreclosure proceeding, abuts that portion of Alligator Drive immediately adjacent to the old revetment. The eastern boundary of the Bank's property is at least 300 feet west of the new revetment and extends westward along County Road 370 until it intersects with Harbor Circle. The entire tract is separated from the old revetment by County Road 370, a two-lane paved road. The property was once used as a KOA campground; however, the predecessor owner acquired development rights for a Planned Unit Development, which apparently cannot be fully developed unless the old revetment is raised back to its original height by the County or some other acceptable form of erosion protection is provided by the Bank at its own expense. The essence of the Bank's complaint is that the new revetment, as now sited and designed, will expose the old revetment to a higher rate of erosion, and ultimately accelerate the erosion of its property across the street. The Bank asserts that this will occur for three reasons. First, the removal of construction debris from the old revetment will lower its height, weaken the structure, and create a "discontinuity in height and composition between the revetments," resulting in increased exposure to erosion. Second, the toe of the new revetment (at the western end of the structure) will extend ten feet further seaward than the old revetment, creating a discontinuity and placing the old revetment at higher exposure to erosion. Finally, the Bank contends a discontinuity already exists between the two revetments due to the curved shape of the road at the intersection, causing the western end of the new revetment to extend further seaward than the old revetment. The Bank argues that the discontinuity will amplify the wave action on the shoreline during a severe storm event and eventually cause a breach of the old revetment. In sum, the Bank is essentially arguing that unless the two revetments mirror each other in height and slope, and consist of the same construction materials, the after-the-fact permit must be denied. The Bank's expert, Mr. Chou, a coastal engineer, was employed shortly before the final hearing and made one visit to the site. Regarding the removal of unauthorized construction debris from the old revetment, Mr. Chou was concerned that, while not ideal, the debris offers a degree of shoreline protection. He recommended that if removed, the debris be replaced with boulders comparable to the design standard of the new revetment. However, the record shows that when the loose and uneven debris is removed from the old revetment, the existing rocks will be moved to an interlocking or "chinking" configuration that actually enhances the stability and integrity of the structure.3 The Bank is also concerned that the height and slope of the two revetments differ. Mr. Chou testified that there exists the increased potential for erosion as a result of what he described as a discontinuity, or a difference of characteristics, between the two revetments. He opined that the protective function of the old revetment will be compromised by the removal of the granite boulders, which will lower the overall height of the revetment between two and four feet. According to Mr. Chou, if the new revetment suffers a direct hit by a major storm, i.e., one capable of dislodging the armor, he would "expect damage, significant damage, right next to it." Mr. Chou conceded, however, that if a permit is not approved, and the County elects to remove the new revetment, it could result in a significant adverse impact to property located along Alligator Drive. Mr. Chou further acknowledged that there will be no significant adverse effect on the old revetment during "everyday" winds, waves, and currents. Finally, he agreed that if the toes of the new and old revetments are essentially the same, as the certified engineering plans demonstrate they are, it will "minimize" the discontinuity that he describes. Notably, in 2005, Hurricane Dennis actually caused accretion (an increase in sand) on the Bank property, rather than erosion. While there are some differences in height and slope between the two revetments, no meaningful differences from an engineering perspective were shown. Through the County's coastal engineer, Mr. Dombrowski, who over the years has visited the site dozens of times and worked on a number of major projects in the area, it was credibly demonstrated that the old and new revetments will, in effect, form one continuous armoring structure that will provide shoreline protection along Alligator Drive. In terms of toe, slope, height, and construction material, there will be one continuous and straight revetment along the road, with a "fairly consistent elevation and slope going from one end to the other." If a major storm event occurs, the impacts to both revetments will likely be the same. In any event, there is no requirement that the County construct a revetment that is storm proof or prevents severe storm damage. The preponderance of the evidence demonstrates that the new revetment is consistent with the siting and design criteria in rule 62B-33.0051(2). The design of the new revetment is consistent with generally accepted engineering practice. The new revetment is sited and designed so that there will be no significant adverse impacts, individually or cumulatively, to the adjacent shoreline. See Fla. Admin. Code R. 62B-33.005(3). The County has provided the Department with sufficient information to show that adverse and other impacts associated with the construction are minimized, and the new revetment will not result in a significant adverse impact to the Bank's property. See Fla. Admin. Code R. 62B-33.005(2). The new revetment should toll erosion – which now occurs on Alligator Point at the rate of five feet per year -- and provide shoreline protection. Finally, the construction of the new revetment will not cause an adverse impact to the old revetment. For all practical purposes, the two revetments have existed side-by-side since 2005. The Bank failed to offer any credible evidence that the new revetment has had a significant adverse impact on the old revetment over the last nine years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order approving the County's application for after- the-fact permit number FR-897. DONE AND ENTERED this 23rd day of July, 2014, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 2014.
The Issue At issue was whether Petitioner should be granted a permit from the Respondent, Department of Environmental Regulation, to excavate material in front of the Petitioner's seawall in Naples Bay, Collier County, Florida. The Petitioner owns a residential homesite lot in the Royal Harbor Subdivision in Naples, Florida. Royal Harbor is a waterfront oriented residential community devoted to single family residences; each residence either has waterfront' on Naples Bay or through a network of interior canals which provide navigational access to Naples Bay. All lots are bordered by concrete seawalls. The Concrete seawall bordering the Petitioner's property does not Immediately abut the water, but has an amounts of earth between the seawall and the water's edge, somewhat resembling a beach. It is this earth the Petitioner wishes to remove so that he may have his seawall abut the water which would facilitate the launching of a vessel from his property. Presently, it does not appear that the Petitioner could keep a boat at his property without building a lengthy dock from his seawall into Naples Bay. The Department of Environmental Regulation opposes the application in that it claims the excavation of this material would destroy an oyster bar which exists in front of the Petitioner's property and would eliminate an ecologically significant area. From the exhibits presented at the hearing and after consideration of the testimony, it appears that in the entire Royal Harbor development only the Petitioner's property lacks having the bay waters abut the seawall. The Petitioner's property is approximately one quarter mile from the channel in Naples Bay which is a low energy water body. That is to say, wave action does not become extremely forceful in this area because of the protected nature of the waterway. The Department of Environmental Regulation in part opposes the permit because they state to remove the berm from in front of the seawall would expose the seawall to direct wave energy which would cause turbidity within the waters. No direct evidence was presented that wee the seawalls in Naples Bay are in direct contact with the water that this ill fact does cause increased turbidity and therefore this testimony is rejected by this Hearing Officer as being merely speculative. On the other hand, the Petitioner made no showing that the project would actually be in the public interest except to show that the area in question was a relatively small area. Witnesses for the Department of Environmental Regulation stated that were this berm removed and the area converted to a shallow submerged bay bottom, oysters and marine vegetation would eventually propagate here, particularly if the bottom was excavated with a smooth contour. It is difficult to imagine after listening to all the testimony in this case how the granting of this permit would have a measurable environmental Impact. It would appear to this Hearing Officer that there could be some benefit to water quality from the granting of this permit by somewhat restoring Naples Bay to its original condition. Testimony was received that the entire Royal Harbor development was man-made and the removal of this fill would, in some slight degree, remove fill material that had been previously placed within the waters of Naples Bay. Testimony was also received from Mr. Thomas Provenzano, District Supervisor of the Department of Environmental Regulation, that in his opinion it would be environmentally acceptable for the Petitioner to excavate this berm from within five (5) feet of the concrete seawall. This appears to be a reasonable disposition of this dispute. Whatever destructive force the waves of Naples Bay might have on an exposed vertical seawall would be minimized by leaving a five (5) foot berm seaward of that wall and would in no way interfere with the Petitioner's intended use of his land; reasonable navigational access to Naples Bay. It is, therefore, RECOMMENDED: The application be granted with the proviso that the Petitioner leave a five (5) foot berm between Naples Bay and his vertical seawall. DONE and ENTERED this 3rd day of November, 1976, in Tallahassee, Florida. KENNETH G. OERTEL, Director Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Carole Haughey, Esquire Department of Environmental Regulation 2552 Executive Center Circle, E. Montgomery Building Tallahassee, Florida 32301 Donald T. Frank, Esquire Suite A, U.S. Home Building 3174 E. Tamiami Trail Naples, Florida 33940 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION LYNN A. LUNDSTROM, Petitioner, vs. DOAH CASE NO. 76-1555 STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
Findings Of Fact On May 20, 1993, PRUPAC filed an application, under the Department's emergency rule 4ER93-18(4), to be excluded from rule's moratorium on cancellations and non-renewals of personal lines residential property insurance on the basis of risk of hurricane claims. On June 4, 1993, the Department promulgated emergency rule 4ER93-20 (ER 20). This action was taken with the knowledge that the Legislature had enacted a 180-day statutory moratorium, and it established detailed procedures for applying for what it calls an "exemption" from the rule and statutory moratoria. In addition, ER 20(2) also sets out the following substantive rule criteria for granting exemptions: (b) A risk of insolvency is not sufficient grounds to obtain an exemption from the moratorium. There must be an "unreasonable" risk of insolvency, which is interpreted by the Department to mean that insolvency is not just a possible outcome, but is in fact the probable outcome, of a denial of exemption. Loss scenarios that depend for their fulfillment upon the occurrence of statistically unlikely events, will not constitute an unreasonable risk of insolvency. Insurers seeking exemptions must present expert opinion as to all assumptions made in the insurers' predictions. On August 10, 1993, the Department sent PRUPAC a letter denying PRUPAC's application. The denial letter invited PRUPAC to resubmit a proposal in which the planned cancellations and nonrenewals are designed to reduce your exposure to that amount which, after calculating the effects of reinsurance, would reduce Prupac's probable maximum loss to an amount not in excess of its total surplus. The denial letter also notified PRUPAC of its right to request either informal or formal administrative proceedings under Chapter 120 of the Florida Statutes. It gave PRUPAC 21 days to make such a request. On September 2, 1993, ER 20 expired. On the same day, the Department promulgated 4ER93-28 (ER 28). ER 28 is an essentially verbatim repromulgation of ER 20. If valid, ER 28 would be effective for another 90 days, until December 2, 1993. See Section 120.54(9)(c), Fla. Stat. (Supp. 1992). On or about September 3, 1993, PRUPAC filed a Petition for Formal Administrative Hearing on the August 10, 1993, denial letter. The Department referred PRUPAC's petition to the Division of Administrative Hearings, and final hearing on the petition was held on October 25 through 27, 1993. On October 25, 1993, the court entered an opinion in Prudential Property & Casualty Ins. Co. of Indiana v. Dept. of Insurance, 18 Fla. L. W. D2312 (Fla. 1st DCA Oct. 25, 1993). On petition for review of the August 10, 1993, denial letter, the court "reverse[d] the department's decision and remand[ed] . . . with directions that the department reconsider PRUPAC's application and consider granting it an exemption from the moratorium 'in part' on terms that are consistent with this opinion." 18 Fla. L.W. at D2315. At the same time, the court stated: Whether PRUPAC is entitled to the exemption sought in its application 'in whole' can be determined after receipt of the hearing officer's recommended order, which we anticipate will be entered as soon as possible. 18 Fla. L.W. at D2315. The Department responded to the court's opinion by entering a "Final Order Granting Partial Exemption," Dept. of Ins. Case No. 93-L-713NJA, on October 26, 1993, which authorized PRUPAC to cancel at least $500 million of policies in Dade and Broward counties on the condition that PRUPAC ask for cancellation volunteers and offer to pay the first year's premium on a replacement policy. On November 1, 1993, PRUPAC filed a copy of this agency action in this case and advised "that PRUPAC regards the partial exemption issue as now controlled by the First District's opinion, and will seek any relief needed as to the DOI order in DOI case no. 93-L-713NJA by way of appeal to the First District Court of Appeal." In the pending Section 120.57(1) proceeding, both parties have contended that the Section 120.57(1) proceeding is not moot, and the parties have submitted proposed recommended orders. In accordance with the court's instruction, a recommended order will be entered in that proceeding "as soon as possible." 18 Fla. L.W. at D2315.
