Findings Of Fact Petitioner is the state land planning agency charged with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Petitioner has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern. The appeal in the instant proceeding was timely. Monroe County is a political subdivision of the State of Florida and is responsible for issuing development orders for development in unincorporated Monroe County. Monroe County issued the development order that is the subject of this appeal. Respondents, Mortimer and Gay Hall, are the owners of real property known as Lots 60 and 61, Block 19, Breeze Swept Beach Estates on Ramrod Key in unincorporated Monroe County. The Halls have constructed a single family dwelling on that property, but the building permit for the construction of the dwelling is not at issue in this proceeding. Most of Monroe County, including the subject property, is within the Florida Keys Area of Critical State Concern as designated under Sections 380.05 and 380.0552, Florida Statutes. On January 21, 1992, Monroe County issued the subject building permit, Permit Number 9010001679, to Mortimer and Gay Hall as owners and Pierce Construction and Builders as contractor. The subject permit would be subject to certain conditions imposed by the Florida Department of Natural Resources (DNR). As permitted, the use of the structure would be limited to swimming and recreation. Boating, or the mooring of boats, would not be permitted. By letter dated December 17, 1991, DNR authorized the project subject to certain conditions and limitations, and provided, in pertinent part, as follows: Mort and Gay Hall are hereby authorized to proceed with the construction of a swim platform as proposed This authorization is specifically conditioned upon the following: * * * The structure shall be used only for passive recreational activities such as swimming and fishing. Mooring of vessels at the facility either on a temporary or permanent basis is strictly prohibited. The platform and walkway shall be elevated four feet above mhw [mean high water]. Handrails at a height of four feet shall be installed along the walkway and around the platform. Handrails shall be two feet above the platform deck. Install at least three "NO MOORING" signs along the perimeter of the platform. Install a ladder on the waterward terminus of the platform for water access. The application submitted by the Halls to Monroe County that resulted in the subject permit incorporated the DNR conditions and described the project as follows: Applicant wishes to install a wooden swim platform (20 ft. length x 8 ft. width) and a wooden elevated access walkway (25 ft. length x 4 ft. width) to access this platform; for the purpose of using the channel cut for swimming activities at their existing single family residence. Monroe County's comprehensive plan, which has been approved by the Petitioner and by the Administration Commission, is implemented through its adopted land development regulations, codified in Chapter 9.5, Monroe County Code. Section 9.5-345(m)(2), Monroe County Code, referred to as the four foot rule, provides as follows: (2) All structures on any submerged lands and mangroves shall be designed, located and constructed such that: * * * No structure shall be located on submerged land which is vegetated with sea grasses except as is necessary to reach waters at least four (4) feet below mean low level for docking facilities; No docking facility shall be developed at any site unless a minimum channel of twenty (20) feet in width where a mean low water depth of at least minus four (4) feet exists; Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element, provides, in pertinent part, as follows: The Florida Keys are dependent on nearshore water quality for their environmental and economic integrity. The heart of the Florida Keys economy, the means by which Monroe County exists as a civil and social institution, is based on its unique oceanic character. If nearshore water quality is not maintained, then quality of life and the economy of Monroe County will be directly and immediately impacted. OBJECTIVES 1. To protect, maintain and, where appropriate, to improve the quality of nearshore waters in Monroe County. * * * POLICIES 1. To prohibit land use that directly or indirectly degrade nearshore water quality. * * * To prohibit the development of water dependent facilities, including marinas, at locations that would involve significant degradation of the biological character of submerged lands. To limit the location of water-dependent facilities at locations that will not have a significant adverse impact on off-shore resources of particular importance. For the purposes of this policy, off-shore resources of particular importance shall mean hard coral bottoms, habitat of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet, and all designated aquatic preserves under Florida Statutes section 258.39 et seq. By Final Judgment entered June 7, 1991, the Honorable Richard G. Payne, Judge of the Circuit Court of the Sixteenth Judicial Circuit, in and for Monroe County, Florida, ruled in Stanton v. Monroe County, Case No. 91-20-035- CA-18, that Monroe County's four foot rule does not apply to swimming piers, concluding, in pertinent part, as follows at page five of the Final Judgment: 5. To the extent that the County's Comprehensive Plan and Land Development Regulations fail to provide for swimming piers ... the court finds that it is unreasonable to treat such piers as if they were docks at which boats are to be moored. Pursuant to the judicial review authority of Chapter 163, Fla. Stat., the court declares ... [the four foot rule] inapplicable to piers at which boats are not to be moored. The County has adequate judicial remedies, including injunction, to prevent the use of such piers, including the subject pier, for the mooring of boats. Despite the Stanton ruling, supra, Monroe County has interpreted the four foot rule as being applicable to swimming piers such as the one the Halls wish to construct. Monroe County's long-standing interpretation of the four foot rule would not prohibit the permit because of the minimal effect such construction would have on the nearshore waters. Since 1986, Monroe County has adopted an interpretation of Section 9.5-345(m)(2), Monroe County Code, and of Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element, that would permit the construction of the subject project. That interpretation permits the development of docks in subdivisions that were under development in 1986 if there is at least four feet of water at the terminal point of the dock at mean low tide. The structure that is the subject of this proceeding is in a subdivision that was under development prior to 1986 and would, if permitted, terminate in a channel more than 20 feet wide with water at least six feet deep at mean low tide. Monroe County's interpretation of the four foot rule is that the rule was intended to restrict the development of boating access facilities in new, undeveloped subdivisions and to regulate proposed expansion of existing marinas and the development of new marinas. Monroe County considers the subject application by the Halls to meet all of its permitting criteria. The structure will be constructed in a dredged area of adequate size for swimming. Access to the structure by boat is unlikely because the swimming area is surrounded by a reef and hard bottom that is extremely shallow, even at high tide. At low tide much of this surrounding area is above water, and the deepest area of water is approximately six inches. At high tide, the water depth of the surrounding area ranges from approximately four inches to approximately eighteen inches. On the waterward side of the surrounding area, the water depths are less than four feet. Petitioner's concern is that boats will moor at the structure regardless of the restrictions on the permit and that these boats will cause degradation to the nearshore waters while crossing to deep water. Benthic communities exist in the waters between the Halls's property and deep water, such as rock-hard bottom, sea grasses, algae, and hard coral. Turtles, manatees, sharks, stingrays, eagle rays, snapper, pink shrimp, mullet, and other marine animals populate those waters. Sea grass beds play an important role in water quality maintenance in the Keys through filtration, nutrient uptake, stabilization of the bottom, and as a habitat for commercially important species. One cannot reach deep water by boat from the Halls's property without crossing areas in which the water depth is less than four feet at low tide. Petitioner speculates that prop dredging, and the resulting damage to seagrass beds and shallow water marine communities, would result if one were to attempt to navigate these shallow waters by a propeller powered boat. Petitioner's concern is premised on the unwarranted assumptions that the structure will be illegally used at some point in the future by boats. Petitioner has failed to establish that this concern justifies denial of the permit. Petitioner did not establish that damage would be done to the environment by swimming in the area of the proposed swimming platform. Respondents presented evidence that several similar projects were permitted at approximately the same time as the Halls's permit without Petitioner filing an appeal. This evidence was insufficient to establish that Petitioner should be estopped to appeal the subject permit, that Petitioner engaged in selective enforcement of its regulatory power, or that Petitioner otherwise brought the subject appeal for an inappropriate purpose.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Florida Land and Water Adjudicatory Commission enter a final order affirming Monroe County's decision to issue building permit number 9010001679, and dismissing the appeal filed by the Department of Community Affairs. DONE AND ENTERED this 26th day of January, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2958DRI The following rulings are made on the proposed findings of fact submitted on behalf of Petitioner. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, and 14 are adopted in material part by the Recommended Order. The proposed findings of fact in the first sentence of paragraph 11, 12, 13, and 16 are subordinate to the findings made. The proposed findings of fact in paragraph 15 are rejected as being unnecessary to the conclusions reached because the use of the platform is limited. The testimony by Robert L. Herman as to the purpose and interpretation of the four foot rule by Monroe County is found to be a more persuasive than Mr. Metcalf's testimony. The following rulings are made on the proposed findings of fact submitted on behalf of Respondents. The proposed findings of fact in paragraphs 1, 2, 3,4, and 8 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 5 and 6 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 8 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: Lucky T. Osho, Esquire David Jordan, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Theodore W. Herzog, Esquire Theodore W. Herzog, P.A. 209 Duval Street Key West, Florida 33040 Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 G. Steven Pfeiffer, General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 James T. Hendrick, Esquire Attorney for Monroe County Post Office Box 1117 Key West, Florida 33040 Carolyn Dekle, Director South Florida Regional Planning Council 3400 Hollywood Boulevard Suite 140 Hollywood, Florida 33021 Pierce Construction and Builders Route 4, Box 319 Summerland Key, Florida 33042 Bob Herman, Herb Rabin, Lorenzo Aghemo, Pat McNeese Monroe County Growth Management Division Public Service Building, Wing III 5100 Junior College Road West Stock Island Key West, Florida 33040 William R. Kynoch, Deputy Director Florida Land and Water Adj. Commission Executive Officer of the Governor 311 Carlton Building Tallahassee, Florida 32301
Findings Of Fact The Parties. The Petitioner, Clifford O. Hunter, is the owner of real property located at Dekle Beach, Taylor County, Florida. Mr. Hunter's property is located at lot 53, Front Street, Dekle Beach, within section 22, township 7 south, range 7 east, Taylor County. Respondent, the Florida Department of Environmental Protection (hereinafter referred to as the "Department"), is an agency of the State of Florida with responsibility for, among other things, dredge and fill permits involving Florida waters. Mr. Hunter lived in a home on his Dekle Beach property until a storm in March of 1993 destroyed the home. Mr. Hunter's Application for Permit. On or about June 2, 1993, Mr. Hunter applied for a wetland resource permit to rebuild his home, construct a bulkhead and fill 1750 square feet of salt marsh. The permit was designated No. 62-232123-2 by the Department. Mr. Hunter also sought approval for the construction of a dock. The dock, however, is exempt from the permitting requirements of Rule 17- 312.050(1)(d), Florida Administrative Code. On July 21, 1993, the Department issued a Notice of Permit Denial. The Notice of Permit Denial was received by Mr. Hunter. On August 13, 1993, Mr. Hunter filed a Request for Formal Administrative Hearing with the Department contesting the denial of his permit application. The Department's Jurisdiction Over the Proposed Project. The proposed project involves dredging and filling in the waters of the State of Florida. A wetland resource permit is, therefore, required. Wetland jurisdiction of the State of Florida extends to the eastern edge of an existing concrete slab on Mr. Hunter's property from a canal adjacent to Mr. Hunter's northern boundary. The canal connects with the waters of the Gulf of Mexico. The Gulf of Mexico surrounding Dekle Beach, except for an area extending 500 feet outward from the town limits of Dekle Beach, is within the Big Bend Seagrasses Aquatic Preserve. The preserve is an Outstanding Florida Water (hereinafter referred to as an "OFW"). The evidence presented by the Department to support findings of fact 9, 10 and 11 was uncontroverted by Mr. Hunter. Impact on Water Quality Standards. The weight of the evidence failed to prove that the Mr. Hunter has provided reasonable assurances that the proposed project will not lower the existing ambient water quality of waters of the State of Florida. The evidence presented by the Department concerning adverse impacts of the proposed project on water quality standards was uncontroverted by Mr. Hunter. Approval of Mr. Hunter's proposed project would allow the placing of fill in an intertidal area and the elimination of the portion of the intertidal area filled. Intertidal areas help maintain water quality by acting as a filter for water bodies. Mr. Hunter has obtained a variance from the Department of Health and Rehabilitative Services which will allow him to place a septic tank on his property if the permit is granted. The septic tank will leach pollutants. Those pollutants will include nutrients, viruses and bacteria. Because the soil around the septic tank is very saturated, filtering of the pollutants will be low. Pollutants will, therefore, leach into the waters of the State of Florida and adversely impact water quality standards of the canal adjacent to Mr. Hunter's property. Under such circumstances, Mr. Hunter has failed to demonstrate that the project will not lower existing ambient water quality of waters of the State of Florida. Public Interest Test. Mr. Hunter failed to present evidence to support a conclusion that the proposed project will not be adverse to the public interest. Rather, the unrebutted evidence presented by the Department supports a finding that Mr. Hunter's proposed project will not be in the public interest, especially when the cumulative impacts of the proposed project, discussed, infra, are considered. Possible adverse impacts to the public interest include the following: The septic tank which Mr. Hunter will place in the 1750 square feet of filled area will allow fecal coliform, viruses and pathogens to leach into the waters of the canal adjacent to Mr. Hunter's property. Anyone who enters the canal could be infected from bacteria and viruses leaching from the septic tank. The conservation of fish and wildlife would also be adversely affected by the adverse impact on water quality and by the elimination of intertidal area. Recreational value of the canal would be reduced because of the adverse impact on water quality. The proposed project is for a permanent structure. Cumulative Impact. There are a number of applications for permits similar to the application filed by Mr. Hunter which have been filed by property owners of Dekle Beach whose homes were also destroyed by the March 1993 storm. If Mr. Hunter's permit application is granted, the Department will have to also grant most, if not all, of the other similar permit applications. Approximately 20 to 30 other applications involve similar requests which will allow the placement of fill and the installation of septic tanks. The resulting fill and use of septic tanks will have a significant cumulative adverse impact on the waters of the State of Florida. The cumulative impact from leaching effluent from the septic tanks on the waters of the State could be substantial. In addition to the impact on the canal adjacent to Mr. Hunter's property, there will a cumulative negative impact on the ambient water quality of approximately 20 septic tanks on the canals and on the OFW. Errors in the Department's Notice of Permit Denial. The Notice of Permit Denial issued by the Department contained the following errors: An incorrect description of Mr. Hunter's lot number and section number; An incorrect statement that the amount of Mr. Hunter's proposed fill would eliminate 3,200 square feet of marsh; An incorrect statement that Mr. Hunter proposed to fill his lot for a distance of 64 feet waterward. The errors contained in the Notice of Permit Denial did not form any basis for the Department's denial of Mr. Hunter's application. The errors were typographical/word-processing errors. Several notices were being prepared at the same time as the Notice of Permit Denial pertaining to Mr. Hunter. The incorrect information contained in Mr. Hunter's Notice of Permit Denial was information which applied to the other notices. Other than the errors set out in finding of fact 23, the Notice of Permit Denial was accurate. Among other things, it was properly addressed to Mr. Hunter, it contained the project number assigned by the Department to Mr. Hunter's proposed project and it accurately reflected the Department's decision to deny Mr. Hunter's permit application. Mr. Hunter responded to the Notice of Permit Denial by requesting a formal administrative hearing to contest the Department's denial of his application. On December 20, 1993, Mr. Hunter received a letter from the Department which corrected the errors contained in the Notice of Permit Denial. The corrections were also contained in a Notice of Correction filed in this case by the Department on December 20, 1993. The Notice of Permit Denial was received by Mr. Hunter within 90 days after his application was filed. The corrections to the Notice of Permit Denial was received by Mr. Hunter more than 90 days after his application was filed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order dismissing the petition in this case and denying the issuance of permit number 62-232123-2 to Clifford O. Hunter. DONE AND ENTERED this 26th day of April, 1994, in Tallahassee, Florida. LARRY J. SARTIN 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 26th day of April, 1994. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Mr. Hunter's Proposed Findings of Fact Accepted in 1 and 3. Accepted in 2. Accepted in 4. Although Ernest Frey, Director of District Management, Northeast District Office of the Department, did ask Mr. Hunter whether he wanted to sell his property to the State, the evidence failed to prove why Mr. Frey asked this question, that Mr. Frey asked the question in his official capacity with the Department, or that Mr. Frey made the inquiry at the direction or on behalf of the Department or the State. More importantly, the evidence failed to prove that the Department denied the permit sought by Mr. Hunter because of any interest the State may have in purchasing Mr. Hunter's property. See 4. 6-8 No relevant. Not supported by the weight of the evidence. Accepted in 6, 23, 28 and 30. Not a proposed finding of fact. See 8. The "aerial photo, Petitioner's exhibit 6, does not show "No vegetation behind the slab, nearly to the Mean High Water Line . . . ." Respondent's exhibit 3 does, however, show vegetation as testified to by Department witnesses. 13-14 Not supported by the weight of the evidence. Not a proposed finding of fact. Generally correct. Mr. Hunter was not properly put on notice of "alternatives" by the Notice of Permit Denial, as corrected, issued by the Department. Summation: Mr. Hunter's Summation was considered argument and was considered in this case. The Department's Proposed Findings of Fact Accepted in 1 and 3. Accepted in 2. Accepted in 1 and 4-5. Accepted 6-7. Accepted in 8. 6-9 Hereby accepted. Accepted in 12. Accepted in 13. Accepted in 14. Accepted in 15. Accepted in 19. Accepted in 20. Accepted in 15. 17-18 Accepted in 15 and hereby accepted. Accepted in 15 and 20-21. Accepted in 10. Accepted in 22. Hereby accepted. Accepted in 22. Accepted in 12. Accepted in 15-16. Accepted in 17 and 21. 27-28 Accepted in 17. Accepted in 18. Accepted in 13. Accepted in 16. 32-33 The Notice of Permit Denial, as corrected, did not put Mr. Hunter on notice that the alternatives raised by the Department at the final hearing would be an issue in this case. Those alternatives should not, therefore, form any basis for the Department's final decision. Accepted in 24-25. Accepted in 23. Accepted in 25. Accepted in 24 and hereby accepted. Accepted in 26. COPIES FURNISHED: Clifford O. Hunter 1410 Ruby Street Live Oak, Florida 32060 Beth Gammie Assistant General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-9730 Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, Esquire General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue As to Case 92-1751DRI whether Building Permit No. 9110002865 issued by Monroe County, Florida, to Ronald and Patricia LaCroix as owners and Pierce Construction and Builders as contractor for the construction of a dock is contrary to the provisions of Chapter 380, Florida Statutes, the Monroe County Comprehensive Plan and the Monroe County Land Development Regulations. As to Case 92-3949DRI whether Building Permit No. 9110003422 issued by Monroe County, Florida, to David Goodridge as owner and Pierce Construction and Builders as contractor for the construction of a dock is contrary to the provisions of Chapter 380, Florida Statutes, the Monroe County Comprehensive Plan and the Monroe County Land Development Regulations. As to Case 92-5582DRI whether Building Permit No. 9210004503 issued by Monroe County, Florida, to Dick and Jean Madson as owners and Mark W. Milnes Construction as contractor for the construction of a dock is contrary to the provisions of Chapter 380, Florida Statutes, the Monroe County Comprehensive Plan and the Monroe County Land Development Regulations.
Findings Of Fact Petitioner is the state land planning agency charged with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Petitioner has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern. Each appeal in this consolidated proceeding was timely and each involved a development within the Florida Keys Area of Critical State Concern as designated under Sections 380.05 and 380.0552, Florida Statutes. Monroe County is a political subdivision of the State of Florida and is responsible for issuing development orders for development in unincorporated Monroe County. Monroe County issued the development orders that are the subject of this appeal. Respondents, Ronald and Patricia LaCroix, are the owners of real property known as Lot 43 Saddlebunch RV Park on Saddlebunch Key in unincorporated Monroe County. On December 12, 1991, Monroe County issued building permit 9110002865 to Mr. and Mrs. LaCroix as owners and to Pierce Construction and Builders as general contractors, to build a boat dock on the subject property and extending beyond the mean high water mark into a man-made canal. At the point that the boat dock would terminate, the canal is more than twenty feet wide and is more than four feet deep at mean low tide. The canal extends throughout the Saddlebunch RV Park. Respondent, David Goodridge is the owner of real property known as Lots 38 and 39 Saddlebunch RV Park on Saddlebunch Key in unincorporated Monroe County. On March 20, 1992, Monroe County issued building permit 9110003422 to Mr. Goodridge as owner and to Pierce Construction and Builders as general contractors, to build a seawall and boat dock on the subject property and extending beyond the mean high water mark into a man-made canal. At the point that the boat dock would terminate, the canal is more than twenty feet wide and is more than four feet deep at mean low tide. The canal extends throughout the Saddlebunch RV Park. Respondents, Dick and Jean Madson are the owners of real property known as Lot 38, Section D, Sugarloaf Shores subdivision, Sugarloaf Key in unincorporated Monroe County. On May 13, 1992, Monroe County issued building permit 9210004503 to Mr. and Mrs. Madson as owners and to Mark W. Milnes Construction as general contractors, to build a dock and davits on the subject property and extending beyond the mean high water mark into a man-made canal. At the point that the boat dock would terminate, the canal is more than twenty feet wide and is more than four feet deep at mean low tide. The canal extends throughout Sugarloaf Shores subdivision. Monroe County's comprehensive plan, which has been approved by the Petitioner and by the Administration Commission, is implemented through its adopted land development regulations, codified in Chapter 9.5, Monroe County Code. Section 9.5-345(m)(2), Monroe County Code, referred to as the four foot rule, provides as follows: (2) All structures on any submerged lands and mangroves shall be designed, located and constructed such that: * * * No structure shall be located on submerged land which is vegetated with sea grasses except as is necessary to reach waters at least four (4) feet below mean low level for docking facilities; No docking facility shall be developed at any site unless a minimum channel of twenty (20) feet in width where a mean low water depth of at least minus four (4) feet exists; Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element, provides, in pertinent part, as follows: The Florida Keys are dependent on nearshore water quality for their environmental and economic integrity. The heart of the Florida Keys economy, the means by which Monroe County exists as a civil and social institution, is based on its unique oceanic character. If nearshore water quality is not maintained, then quality of life and the economy of Monroe County will be directly and immediately impacted. OBJECTIVES 1. To protect, maintain and, where appropriate, to improve the quality of nearshore waters in Monroe County. * * * POLICIES 1. To prohibit land use that directly or indirectly degrade nearshore water quality. * * * To prohibit the development of water dependent facilities, including marinas, at locations that would involve significant degradation of the biological character of submerged lands. To limit the location of water-dependent facilities at locations that will not have a significant adverse impact on off-shore resources of particular importance. For the purposes of this policy, off-shore resources of particular importance shall mean hard coral bottoms, habitat of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet, and all designated aquatic preserves under Florida Statutes section 258.39 et seq. Section 9.5-4(W-1), Monroe County Code, provides as follows: (W-1) "Water at least four (4) feet below mean sea level at mean low tide" means locations that will not have a significant adverse impact on off- shore resources of particular importance. For the purposes of this definition, "off-shore resources of particular importance" shall mean hard coral bottoms, habitat of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet, and all designated aquatic preserves under Florida Statutes section 258.39 et seq. Benthic communities exist in the waters between the two canals and deep water, such as rock-hard bottom, sea grasses, algae, and hard coral. Turtles, manatees, sharks, stingrays, eagle rays, snapper, pink shrimp, mullet, and other marine animals populate the Sound. Sea grass beds play an important role in water quality maintenance in the Keys through filtration, nutrient uptake, stabilization of the bottom, and as a habitat for commercially important species. Neither the canal system for Saddlebunch RV Park nor the canal system for Sugarloaf Shores subdivision has access to deep water without crossing areas of water in Sugarloaf Sound with depths of less than four feet at mean low water. Many of these shallow areas contain sea grass beds. The operation of motor driven boats may result in damage to sea grass beds and shallow water marine communities through prop dredging if boats were to attempt to cross these shallow areas. Although there is evidence of prop dredging in parts of these shallow waters, it was not shown that the damage was done by boats traveling from these canal systems and deep water. Whether boats that may be docked at these sites if these permits are granted will cause damage at some future time to some portion of the shallow waters of Sugarloaf Sound between the canal systems and deep water is speculation. Since 1986, Monroe County has adopted an interpretation of Section 9.5-345(m)(2), Monroe County Code, and of Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element, that would permit the construction of each of the subject projects. That interpretation permits the development of marginal seawalls, vertical bulkheads and docks in subdivisions that were under development in 1986 if the proposed structure would terminate in a channel more than 20 feet wide with water more than four feet deep at mean low tide. The structures that are the subject of this proceeding meet that permitting criteria. Monroe County's interpretation of the so-called "four foot rule" is that the rule was intended to restrict the development of boating access facilities in new, undeveloped subdivisions and to regulate proposed expansion of existing marinas and the development of new marinas. Monroe County's interpretation of its rules is that the type development at issue in this proceeding, constructed on an individual family home-site, would have minimal effect on the nearshore water environment of critical state concern. Monroe County considers the subject applications to meet all of its permitting criteria. Respondents presented evidence that several similar projects were permitted at approximately the same time as the subject permits were issued without Petitioner filing an appeal. This evidence was insufficient to establish that Petitioner should be estopped to appeal the subject permits, that Petitioner engaged in selective enforcement of its regulatory power, or that Petitioner otherwise brought the subject appeals for an inappropriate purpose.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Florida Land and Water Adjudicatory Commission enter a final order which affirms Monroe County's decision to issue building permit number 9110002865, and which dismisses the appeal filed by the Department of Community Affairs that is at issue in Case 92-1751DRI. It is further recommended that the Florida Land and Water Adjudicatory Commission enter a final order which affirms Monroe County's decision to issue building permit number 9110003422, and which dismisses the appeal filed by the Department of Community Affairs that is at issue in Case No. 92-3949DRI. It is further recommended that the Florida Land and Water Adjudicatory Commission enter a final order which affirms Monroe County's decision to issue building permit number 9210004503, and which dismisses the appeal filed by the Department of Community Affairs that is at issue in Case No. 92-5582DRI. DONE AND ORDERED this 26th day of January, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 1993. APPENDIX TO RECOMMENDED ORDER TO CASE NO. 92-1751DRI, CASE NO. 92-3949DRI, AND CASE NO. 92-5582DRI The following rulings are made on the proposed findings of fact submitted by Petitioner. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 8, 10, 11, and 14 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 7 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in the first two sentences of paragraph 9 are adopted in material part by the Recommended Order. The proposed findings of fact in the last sentence of Paragraph 9 are rejected as being unsupported by the evidence. While the evidence established that damage may result, the evidence did not establish that damage would result. The proposed findings of fact in the first sentence of paragraph 12 are rejected as being unsubstantiated by the evidence since the water in the canals is deeper than four feet. The proposed findings in the second sentence of paragraph 12 are subordinate to the findings made. The proposed findings of fact in the last sentence of Paragraph 12 are rejected as being unsupported by the evidence. While the evidence established that damage may result, the evidence did not establish that damage would result. The proposed findings of fact in paragraph 13 are rejected as being subordinate to the findings made. The proposed findings of fact in the first sentence of paragraph 15 are rejected since the evidence established that Monroe County's interpretation of the four foot rule dates to 1986. The proposed findings of fact in the second sentence of paragraph 15 are rejected as being unnecessary to the conclusions reached. The remaining proposed findings of fact in paragraph 15 are adopted in material part by the Recommended Order. The proposed findings of fact in the first sentence of paragraph 16 are subordinate to the findings made. The proposed findings of fact in the second sentence of paragraph 16 are rejected as being argument. The proposed findings of fact in the final sentence of paragraph 17 (there are two paragraphs 16, the second of which is being referred to as paragraph 17) are adopted in material part by the Recommended Order. The remaining proposed findings of fact in paragraph 17 are rejected as being unnecessary to the conclusions reached. The following rulings are made on the proposed findings of fact submitted by Respondents. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 16, and 17 are rejected as being the recitation of testimony that is subordinate to the findings made. The proposed findings of fact in paragraph 12 are rejected as being contrary to the record of the proceedings. The proposed findings of fact in paragraph 13 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 14 are adopted in part by the Recommended Order are rejected in part as being subordinate to the findings made. The proposed findings of fact in paragraph 15 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: Lucky T. Osho, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Randy Ludacer, Esquire Monroe County Attorney 310 Fleming Street Key West, Florida 33040 James T. Hendrick, Esquire Morgan & Hendrick 317 Whitehead Street Key West, Florida 33040 William R. Kynoch, Deputy Director Florida Land and Water Adjudicatory Commission Executive Office of the Governor 311 Carlton Building Tallahassee, Florida 32301 Carolyn Dekle, Director South Florida Regional Planning Council Suite 140 3400 Hollywood Boulevard Hollywood, Florida 33021 Robert Herman Monroe County Growth Management Division Public Service Building, Wing III 5825 Jr. College Road Stock Island Key West, Florida 33040 Charles M. Milligan, Esquire Post Office Box 1367 Key West, Florida 33041 David and Florence Clark 4606 Wayne Road Corona Del Mar, California 92625 Edward Warren Werling Post Office Box 1042 Summerland Key, Florida 33042 Theodore W. Herzog, Esquire 209 Duval Street Key West, Florida 33040 Pierce Construction & Builders Route 4, Box 319 Summerland Key, Florida 33042 Dick and Jean Madson Post Office Box 276 Summerland Key, Florida 33402 Mark W. Milnes Route 5, Box 775-G Big Pine Key, Florida 33043 David M. Maloney, Esquire Office of the Governor The Capitol, Room 209 Tallahassee, Florida 32399-0001
Findings Of Fact On March 30, 1981, the State of Florida, Department of Environmental Regulation, received a request from William H. Griffith to allow him to place "rip-rap" adjacent to a retaining wall which fronts Griffith's property. Griffith is a resident at 259 Sabine Drive, Pensacola Beach, Florida. This residence address is in Escambia County, Florida. The details of the application for permit are as set forth in Respondent Griffith's Exhibit 3, admitted into evidence, which is a copy of the application. The application as originally constituted requested that Griffith be allowed to place "rip-rap" material along the front of his property adjacent to the retaining wall which wall was approximately 140 feet in length. The depth of the "rip-rap" material was to be 30 feet with an approximate height of the material being 3 feet. The "rip-rap" material was to be constituted of concrete test block cylinders which are 6 to 8 inches in diameter by 12 to 14 inches in length, together with other aggregate material constituted of irregularly shaped chunks of concrete. Those materials are depicted in the Petitioner's Exhibit 1A through H which are photographs taken at the site of the proposed project. Subsequent to the submission of the application for permit, a modification was made which reduced the depth of the "rip-rap" material from 39 feet to 10 feet 6 inches. This modification occurred sometime in May, 1981, and is depicted in the Respondent Griffith's Exhibit 3. The proposed project, in its modified form, would involve navigable waters of the State. Specifically, it would involve Class II waters, namely the intercoastal waterway which is fronted by the Respondent Griffith's property. A sketch of this location in Escambia County is depicted in the item entitled "vicinity map" which is part of Respondent Griffith's Exhibit 3. The purpose of the "rip-rap" as it is presently contemplated through the project would be to prohibit tidal erosion of the Respondent Griffith's property, in the area of his beach front, particularly as it is exacerbated by seasonal winds. A permit application appraisal was made by the Department and was concluded on July 27, 1981. A copy of that appraisal may be found as the Respondent Department's Exhibit 1, admitted into evidence. Through the process of the permit review and appraisal, the Department requested that the applicant remove four "rip-rap" groins running perpendicular to the retaining wall, which were 20 to 30 feet long. Those groins were not acceptable to the Department as devices to prohibit erosion. Respondent Griffith has removed the majority of the fill material and the present design contemplates the total removal of those groins. At the time of the permit review and at present the existing retaining wall is located 8 to 10 feet landward of the approximate mean high water shoreline. If constructed the 10 foot 6 inch depth "rip-rap" fill structure would extend approximately 2 feet waterward of the approximate mean high water shoreline. A description of the flora and fauna located at the project site, together with general description of the soil types may be found in Respondent Department's Exhibit 1. The impact of the project as described in the permit application appraisal, Respondent Department's Exhibit 1, indicates that the placement of "rip-rap" would stabilize the eroding shoreline adjacent to the applicant's property; provide moderate amounts of substrate to act as a habitat and shelter for intertidal organisms; would act as a limited inhibitor to littoral sand transport, particularly as related to Petitioner Gibson's property, in that there will be some deprivation of sand transport onto the Gibson property until the "rip-rap" stabilizes; however, this deprivation of sand transport of the Gibson property is not substantial. The impact on the Gibson property is further described in the appraisal statement as being insignificant. (It is also suggested that Gibson utilize "rip-rap" as opposed to the vertical timber retaining wall which is in place at his property and is subject to being undermined by tidal pressures.) These perceptions as set forth in the Department's permit application appraisal are factually correct. Having conducted the permit review and being of the opinion that the permit should be issued, the Department sent a letter of intent to issue the permit on July 29, 1981, and served Petitioner Gibson with a copy. The permit document was also forwarded to the applicant. The letter of intent and permit document may be found in Respondent Griffith's Exhibit 5, which was admitted into evidence. This exhibit is a copy of the aforementioned items. Subsequent to the notification of the intent to grant, Petitioner Gibson requested a Subsection 120.57(1), Florida Statutes, hearing, which Petition, in its final form, may be found as Respondent Griffith's Exhibit 2, admitted into evidence, which is a copy of the verified Petition of the Petitioner. The hearing was then noticed and conducted on November 10, 1981, pursuant to the hearing notice, a copy of which may be found as Respondent Griffith's Exhibit 1, admitted into evidence. The project as contemplated will not have a significant negative impact on the flora and fauna. To the extent that there is some destruction by the placement of the "rip-rap" material, this destruction is more than offset by the provision of habitat and shelter for intertidal organisms. The placement of the "rip-rap" will not have a negative impact on water quality in the waters of the State which are adjacent to the Respondent Griffith's property and in which the "rip-rap" will be implaced to the extent of approximately 2 feet waterward of the approximate mean high water shoreline. Should the "rip-rap" material not be placed, shoreline erosion will continue in the area of the applicant's property and that of the Petitioner. The placement of the "rip-rap" is not a hazard to navigation nor in conflict with the public interest. The applicant has received necessary approval from the Army Corps of Engineers for the installation of the "rip-rap" material as may be seen by the grant of a permit from the Corps, a copy of which is found as Respondent Griffith's Exhibit 4, admitted into evidence.
Findings Of Fact Based upon the record evidence, the Hearing Officer makes the following Findings of Fact: Petitioner and his wife own residential property on the northwest side of Key Thargo in Monroe County, Florida. The property is situated on Florida Bay, a Class III Outstanding Florida Water. The area surrounding the Depkins' property is predominately residential, but there is some nearby commercial development, including a motel which is located on an adjoining parcel. A seawall runs the entire length of the shoreline of the Depkins' property. An L-shaped dock and a covered dock extend out into the water from opposite ends of the seawall forming a cove. The Depkins, who live in Key Thargo only a portion of the year, have a boat which they currently moor alongside the L-shaped dock in that area of the cove where the depth of the water is the greatest. The operation of the boat in this area of the cove has not caused any obvious damage to the bay bottom. Two of the Depkins' boats have sunk in stormy weather while moored alongside the L-shaped dock. Therefore, they now dock their boat at a marina when they are away from Key Largo. The Depkins propose to dredge a relatively small 600 square foot area of bay bottom, which they own, in the cove immediately waterward of the seawall. The depth of the water in this area of the cove now ranges from six inches to a foot and a half. The proposed dredging project would increase the depth of the water by two feet and thereby enable the Depkins to dock their boat alongside the seawall, a location they consider safer than the one they presently use for this purpose. The bay bottom which the Depkins propose to dredge consists primarily of bedrock which is irregularly shaped. Most of the bedrock is exposed, however, some of the depressions in the bedrock are filled with sediment. The remaining portion of the bay bottom is covered with sand which is inhabited by various living organisms. Approximately 50% to 75% of the proposed dredging site is covered with vegetation. The dominant vegetation is live algae attached to the exposed bedrock. Various species of algae are present, including red algae, which is the preferred habitat for juvenile lobster. A small portion of the site is covered by live turtlegrass. These few patches of turtlegrass are found in the depressions in the bedrock that are filled with sediment. Without sediment turtlegrass cannot grow. Algae and turtlegrass play significant roles in the production and sustenance of marine life. They have considerable value as a habitat and as a source of food for other living organisms. In addition, they help reduce turbidity and water pollution. If the Depkins dredged the proposed project site, all existing biota within the boundaries of the site would be eliminated and it is unlikely that the area would experience a complete or significant recovery. About twelve to fourteen years ago the Depkins dredged sand from the bay bottom near their L-shaped dock. Almost 30 years ago the owners of the motel situated on the parcel of land adjoining the Depkins' property undertook a similar sand dredging project in the bay. Neither of these prior dredging projects resulted in the long-term loss of any vegetation. If anything, the vegetation in these areas has increased. Unlike these previous projects, the project which the Depkins now propose to undertake involves the dredging of primarily bedrock, not sand. 1/ Revegetation typically does not occur following such dredging activity. It is the exception rather than the rule. Therefore, more likely than not, the Depkins' proposed dredging project, if permitted, will result in the permanent loss of vegetation and consequently will have a long-term adverse effect on ambient water quality, the conservation of fish and other aquatic wildlife, and marine productivity. Furthermore, if the project was completed and the Depkins were to begin docking their boat alongside the seawall, there would be an increase in conflict turbidity attributable to the movement of the boat in and out of this area of shallow water. 2/ No measures to mitigate these adverse consequences have been proposed or suggested. 3/ There are many other owners of bayfront property in the Florida Keys who, like the Depkins, are desirous of dredging an access channel to the landward extent of their property. The Department's current practice is to deny these property owners permission to engage in such dredging activity. Although in the past year the Department has processed only about a half dozen permit applications for dredging projects similar in size and scope to that proposed by the Depkins, there would likely be a substantial increase in the number of permit applications were the Department to announce, through its disposition of the Depkins' permit application, that it was henceforth allowing such projects. If the Depkins and these other property owners were permitted to undertake such projects, the resulting damage to the marine environment would be widespread. The impact would extend far beyond the relatively small area of bay bottom that the Depkins propose to dredge. The Department has proposed the following reasonable alternative to the proposed dredging project which would also provide the Depkins with improved access to their residence by boat: Extend the existing [L-shaped] dock offshore to a terminal platform located at a water depth of at least four (4) feet MLW and elevate the intermediate portion of the dock to at least five (5) feet above MHW to prevent boat mooring in shallower areas.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Environmental Regulation issue a final order denying the Depkins' permit application. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of August, 1989. STUART M. LERNER 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 f Administrative Hearings this of 8th day of August, 1989.
Findings Of Fact On July 19, 1991, the Petitioner, Cahill Pines and Palm Property Owners Association, Inc. (Cahill), filed a permit application with the Department of Environmental Resources, predecessor to the Respondent, Department of Environmental Protection (Department), for a permit to remove two earthen plugs in the Cahill canal system, located in Big Pine Key, Monroe County, Florida. The plugs were to be removed to a depth of -5.5 feet N.G.V.D. Kenneth Echternacht, a hydrologist employed by the Department, had performed a hydrographic review of the proposed project and reduced his findings to writing in a memorandum dated June 25, 1993. Mr. Echternacht recommended that the project not be permitted. On August 20, 1993, the Department issued a notice of its intent to deny Cahill's application to remove the plugs. The notice included six proposed changes to the project which would make the project permittable. Cahill requested an administrative hearing on the Department's intent to deny the permit. On March 3 and 4, 1994, an administrative hearing was held on the issue of whether a permit should be issued. The hearing officer entered a recommended order on May 9, 1994, recommending that a final order be entered denying the permit. The Department issued a final order on June 8, 1994, adopting the recommended order of the hearing officer and denying the permit. See Cahill Pines and Palm Property Owners Association v. Department of Environmental Protection, 16 F.A.L.R. 2569 (DER June 8, 1994). In the final order the Department found that the following findings of Mr. Echternacht were "scientifically sound and credible conclusions": The estimated flushing for the presently open portion of the waterway was calculated to be 14.5 days. The flushing for the open section exceeds the 4 day flushing criterion by approx- imately 3.6 times. Clearly, the open portion poses a potential problem to the maintenance of acceptable water quality. For the presently closed sections of the waterway, the calculated flushing time was found to be 38.6 days. Again, this system would pose a significant potential for contamination to adjacent open waters if opened for use. The waters behind the barrier that presently appear to pose no problem would clearly become a repository for contaminants associated with boat usage. Because of the exceptionally long flushing time, contaminants would build up over time. Below standard water quality throughout the waterway would be expected and, associated with this, below standard water would be exported into adjacent clean water on each ebbing tide. The final order also found the following facts: 13. Neither the water in the open canals nor the water in the closed canals is presently of substandard quality. * * * Petitioner's plug removal project will also spur development in the Cahill subdivision and lead to an increase in boat traffic in the Cahill canal system, as well as in the adjacent waters of Pine Channel. Such activity will result in the discharge of additional contaminants in these waterways. As Echternacht stated in his June 25, 1993, memorandum that he sent to O'Connell, '[b]ecause of the [canal system's] exceptionally long flushing time, [these] contaminants would build up over time' and result in a significant degradation of the water quality of not only the Cahill canals, but also of Pine Channel, into which Cahill canals flow. This degradation of water quality will have an adverse effect on marine productivity and the conservation of fish and wildlife that now inhabit these waterways. Consequently, in the long run, the removal of the plugs will negatively impact fishing opportunities in the area. On the other hand, the project will have a beneficial effect on navigation and recreational boating and related activities. It will have no impact on historical and archaeological resources. On April 10, 1995, Cahill submitted a permit application to the Department to remove portions of the two canal plugs. Cahill proposed to leave an island in the center of each plug. The islands would be stabilized with riprap, and mangrove seedlings would be planted in the riprap. By letter dated April 21, 1995, the Department returned the April 10 permit application to Cahill along with the $500.00 processing fee. The Department advised Cahill that the application was not substantially different from the 1991 permit application which was denied by final order. The Department further advised that Cahill could resubmit the application and application fee if it wanted the permit to be processed but the Department would deny the application on the basis of res judicata. On May 17, 1995, Cahill submitted a revised permit application along with the processing fee. A circulation culvert had been added to the project. Ken Echternacht performed a hydrographic review of the proposed project. In a memorandum dated May 25, 1995, Mr. Echternacht recommended that the permit be denied for the following reasons: The proposed 24-inch culvert connection would not be expected to be visible hydraulically. A 24-inch diameter culvert, length 181 ft would be expected to have a friction factor several orders of magnitude greater than the adjacent canals. As such, water would not be expected to pass through the connector unless there were a sizeable head to drive the flow. No studies and/or supporting documentation have been provided to support the design in terms of the documenting the amplitude and repeatability of the flow driving force. Cutting holes through embankments do not necessarily result in flushing relief. As stated in 1, above, any and all proposed design modifications to the proposed waterway must be accompanied by adequate design justifi- cation based on hydrographic modeling supported by site specific data support. The culvert design proposed does not meet the above require- ment. The proposal is nothing new. In the hearing, ideas such as the above were suggested. However, as was stated in the hearing any and all such proposals must be supported by proper engineering study. On July 7, 1995, the Department issued a Notice of Permit Denial, denying the May, 1995 permit application on the basis of res judicata, stating that the May 1995 permit was not substantially different from the 1991 permit application which had been denied and that no studies had been submitted by Cahill that would support that the use of the islands and culvert would increase the flushing rate to the four day flushing criterion established in the hearing on the 1991 permit application. At the final hearing counsel for Cahill stated for the record that the use of the islands and the culvert would not increase the flushing rate to four days.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Cahill Pines and Palms Property Owners Association, Inc.'s application for a permit to remove two plugs separating the open and closed canal sections of the Cahill canal system, placing an island in the center of each plug, and adding a 24 inch culvert connection. DONE AND ENTERED this 31st day of July, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-4377 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-7: Accepted in substance but not necessary to be incorporated in the recommended order. Paragraph 8: The evidence presented showed that there is a dispute of whether the waters are now of substandard quality. For the purposes of this hearing, it is not necessary to determine whether the water quality is presently substandard. Based on the assumption that the water quality is not substandard, Petitioner has failed to show that the change in the design of the project is sufficient to warrant the rejection of the applicability of the doctrine of res judicata. Petitioner has failed to show that the addition of islands and a culvert will eliminate the potential for future contamination of the waters. The second sentence is accepted in substance but not necessary to be incorporated in the recommended order. Paragraphs 9-11: Accepted in substance but not necessary to be incorporated in the recommended order. Paragraphs 12-15: Accepted in substance to the extent that for the purposes of this hearing the water quality is assumed not to be substandard. Paragraph 16: Rejected as unnecessary. Paragraphs 17-27: Rejected as subordinate to the finding that for the purposes of this hearing the present water quality is assumed not to be substandard. Paragraphs 28-30: Accepted in substance. Paragraph 31: Accepted in substance to the extent that the changes in the design will not increase the flushing rate to four days. Paragraphs 32-33: Accepted to the extent that they were findings in the final order on the 1991 application. Paragraphs 34-35: Accepted to the extent that the slow flushing rate is one of the criteria to be considered. The increase of development and boat traffic are also contributors to the potential of contamination building up. Petitioner has not demonstrated that the use of islands and a culvert will eliminate the potential for contamination. Respondent's Proposed Findings of Fact. Paragraphs 1-10: Accepted in substance. Paragraphs 11-14: Rejected as unnecessary. Paragraph 15: Accepted in substance. Paragraph 16: Accepted in substance as corrected. Paragraph 17: Accepted. Paragraphs 18-21: Accepted in substance. Paragraph 22: Accepted. Paragraph 23: Rejected as unnecessary. COPIES FURNISHED: David Paul Horan, Esquire Horan, Horan and Esquinaldo 608 Whitehead Street Key West, Florida 33040-6549 Christine C. Stretesky, Esquire John L. Chaves, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kenneth J. Plante, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard, Douglas Building Tallahassee, Florida 32399-3000
The Issue The issue is whether Bayou Arbors, Inc. (Arbors), is entitled to a dredge and fill permit to construct docks in DeBary Bayou, Volusia County, Florida.
Findings Of Fact On January 8, 1986, DER received an application from Arboretum, a predecessor in interest of Arbors, to construct 12,758 square feet of docks in DeBary Bayou to provide ninety eight (98) boat slips, and to dredge 2,509 cubic yards of shoreline material from DeBary Bayou in areas within DER's jurisdiction under the proposed boat docks, and to place approximately 800 linear feet of concrete riprap along the shoreline after it was dredged. Following the initial application review process, which included on- site evaluations by several DER biologists, on April 14, 1986, DER prepared a Biological and Water Quality Assessment in which DER's staff recommended that the project be modified to delete the dredging, allowing the littoral zone to remain intact. On April 24, 1986, DER forwarded its Biological and Water Quality Assessment to Mr. Charles Gray, the property owner. In response to DER's recommendations, the Applicant submitted, and on April 30, 1986, DER received, a revised Application which deleted the originally-proposed shoreline dredging of 2,509 cubic yards of material as well as the placing of 800 linear feet of concrete riprap. This Application was submitted by Mr. Duy Dao, a Professional Engineer registered in the State of Florida. This Application proposed constructing approximately 17,000 square feet of docking facilities, providing ninety-eight boat slips, along approximately 2,580 linear feet of shoreline adjacent to twenty-four acres of uplands owned by the Applicant. The original and the revised drawings omitted a vertical scale from the cross-section drawings of the project. This omission gave the impression that the shoreline bank of DeBary Bayou was steeper than it actually is and that the water depths in DeBary Bayou adjacent to the north shoreline are deeper than they actually are. However, DER's biologists were on-site four times between February 25, 1986, and May 19, 1986. They observed the existing slope of the DeBary Bayou shoreline and the existing depths in DeBary Bayou, and the on-site observations negated the effect of the omission in the drawings. The omission in the drawings did not affect DER's evaluation of the project. On May 23, 1986, DER issued its Intent to Issue and Draft Permit No. 64-114399-4 to Arboretum. The Intent to Issue and the Draft Permit include the following Specific Conditions: Further construction on the Applicant's property along the DeBary Bayou shall be limited to uplands; Issuance of this permit does not infer the issuance of a permit for dredging in the Bayou at a future date, should an application for dredging be submitted; A deed restriction shall be placed on the condominium limiting boats moored at the facility to seventeen feet or less. A copy of the deed restriction shall be submitted to the Department within sixty days of issuance of this permit; There shall be no "wet" (on-board) repair of boats or motors at this facility; All boats moored at the dock shall be for the use of residents of the condominium only. Public use of the dock or rental or sale of mooring slips to non-residents of the condominium is prohibited; Manatee warning signs shall be placed at 100 foot intervals along the length of the dock(s); Turbidity shall be controlled during construction (by the use of siltation barriers) to prevent violations of Rule 17-3.061(2)(r), Florida Administrative Code. On June 29, 1987, Volusia County, DER and Arboretum entered into a "Joint Stipulation for Settlement" wherein Arboretum agreed not to construct more than twenty-six docks accommodating more than fifty-two boat slips along Arboretum's DeBary Bayou frontage of 2,580 feet. Furthermore, Arboretum agreed that it would modify the configuration and the design of the boat slips and the location of the boat docks; that it would post Slow Speed, No Wake zone signs and manatee education signs along DeBary Bayou from the 1-4 bridge west to a point 100 feet west of the western boundary of Arboretum's boat docks; and that as mitigation for the removal of vegetation from the littoral zone where the boat slips would be constructed, Arboretum would plant wetland hardwood trees. In addition to the Joint Stipulation for Settlement, on June 14, 1987, the property owners, Charles Gray and Sandra Gray, as part of their agreement with Volusia County, executed a "Declaration of Covenants, Conditions, and Restrictions" to which the Joint Stipulation for Settlement was attached as an exhibit. Said Declaration of Covenants, Conditions, and Restrictions, reiterated the Joint Stipulation's limitation of construction of boat docks in DeBary Bayou and further provided that said boat docks would not be constructed at the Arboretum project site in DeBary Bayou unless and until certain maintenance dredging set forth in Article II of the Declaration of Covenants, Conditions, and Restrictions occurred. Furthermore, Article III of said Declaration of Covenants, Conditions and Restrictions set forth certain prohibitions regarding constructing boat ramps on the Arboretum property and docking or storing boats along the DeBary Bayou shoreline except at the site of the proposed docks. In 1969, an artificial channel was excavated in DeBary Bayou adjacent to the north shoreline of DeBary Bayou by a dragline operating along the shoreline. At present, said channel has been partially filled by organic sediments originating in DeBary Bayou. There exists in Section 403.813(2)(f), Florida Statutes, an exemption from the DER's permitting requirements for the performance of maintenance dredging of existing man-made channels where the maintenance dredging complies with the statutory provisions and with the regulatory provisions found in Florida Administrative Code Rule 17-4.040(9)(d). The dragline excavation work performed in DeBary Bayou in 1969 created a structure which conforms to the definition of "channel" provided in Section 403.803(3), Florida Statutes. The maintenance dredging required by the Declaration of Covenants, Conditions, and Restrictions is to be performed by suction vacuuming of the silt sediment, from the 1969 channel and that dredged material is to be placed on Arbors' upland property at the project site. This maintenance dredging differs from the dredging originally proposed by the applicant in its application submitted in January 1986. The dredging originally proposed, which DER recommended against, was to be performed by back hoes and drag-lines which would have cut into the north shoreline of DeBary Bayou and would have affected the littoral zone along the project shoreline. The average water level in Lake Monroe and DeBary Bayou is approximately 1.8 feet above mean sea level. On April 18, 1987, transact studies in DeBary Bayou showed water levels at 3.2 feet above mean sea level and that water depths in DeBary Bayou to a hard sand/fragmented shell bottom ranged from approximately one foot along the south shoreline to approximately nine feet in deep areas in the former channel. The average depth of the channel is five feet below mean sea level. The water depth in DeBary Bayou ranges from approximately one to three feet. At times of average water levels, one to three feet of silt or unconsolidated sediment overburden covers the natural hard sand/shell bottom of DeBary Bayou. This silt and sediment overburden is composed of organic material and is easily disturbed. When it is disturbed, it raises levels of turbidity, although there was no evidence presented that the turbidity would violate state water quality standards. This silt and sediment overburden has been deposited at a faster rate than it would normally be deposited under natural conditions because of the Army Corps of Engineers' herbicidal spraying of floating plants in DeBary Bayou. As this silt and sediment overburden decomposes, it takes oxygen from the water. The presence of a strong odor of hydrogen sulfide indicates that the oxygen demand created by the sediment is greater than the available supply of oxygen at the sediment-water interface. This unconsolidated silt and sediment overburden does not appear to harbor either submerged vegetation or significant macroinvertebrate populations. The Shannon/Weaver diversity index of benthic macroinvertebrates at four locations in DeBary Bayou indicated lowest diversity at the project site and highest diversity at the 1-4 overpass, where a small patch of eel grass is growing. Removal of this silt and sediment overburden from the 1969 channel will enhance the system, enabling a hard bottom to be established, with a probability of subsequent establishment of a diversity of submerged macrophytes. Removal of the silt and sediment overburden from the 1969 channel will restore the natural hard sand/fragmented shell bottom in that area of DeBary Bayou. It is unlikely that boat traffic in the restored channel will cause turbidity which will violate state water quality standards. Removal of this silt and sediment overburden will improve water quality in DeBary Bayou by removing a source of oxygen demand. Removal of this silt and sediment overburden will create a better fish habitat by exposing some of the natural bottom of DeBary Bayou. Fish are unable to spawn in the unstable silt and sediment. Removal of this silt and sediment overburden will increase the depth of water in DeBary Bayou channel to between four to six feet. The maintenance dredging, required by the Declaration of Covenants, Conditions, and Restrictions, is limited by statute to the channel which was excavated in 1969. Therefore, a continuous channel will not be maintained from the project site eastward to Lake Monroe. At present, a sandbar exists at the confluence of DeBary Bayou and Lake Monroe. During low water, this sandbar restricts navigation into and out of DeBary Bayou to small craft. At present, boats can and do travel on DeBary Bayou for fishing and for other water-related recreational activities. However, due to water level fluctuations, boating on DeBary Bayou is easier during higher water periods. During lower water periods, navigation into and out of DeBary Bayou is still possible, but boaters must proceed using common sense and caution. The United States Fish and Wildlife Service (FWS) has no evidence that manatees presently use or have ever used DeBary Bayou. Adult manatees have an average girth of approximately three (3) feet. Without a continuous channel open to Lake Monroe, manatees are not likely to go up DeBary Bayou. Since the water at the sandbar at the mouth of DeBary Bayou at its confluence with Lake Monroe is generally less than three feet deep throughout the year, it is likely that these shallow waters will deter manatees from entering DeBary Bayou. DeBary Bayou is a spring-fed run from a spring a substantial distance upstream. The sheetflow of the spring water follows a circuitous route through marsh areas prior to reaching the area of this project. The proposed site is just west of the 1-4 overpass and Lake Monroe. The FWS's data show that the St. Johns River in Volusia County has an extremely low documented manatee mortality rate resulting from boat/barge collisions. Generally, boats greater than 23 feet long are more likely to kill manatees outright than smaller boats are. In marinas, manatees are very rarely killed by collisions with boats. Manatees and marinas are highly compatible. On August 1, 1986, the FWS issued a "no-jeopardy" opinion regarding Arbors' project. In this letter, the FWS stated that Arbors' project was not likely to jeopardize the continued existence of the manatee or to adversely modify the manatee's critical habitat. In the year since the FWS issued its no-jeopardy opinion, no manatee mortalities resulting from boat-barge collisions have been documented in the St. Johns River in Volusia County. The FWS recommended one boat slip per one hundred linear feet of waterfront, or twenty-six boat slips for the project. A single-family residence which would be entitled to one pier could berth an unlimited number of boats at that single pier. The FWS would have no control over the number of boats using that single pier. Arbors' project calls for twenty-six piers. The FWS's evaluation of Arbors' project is exactly the same as that agency's evaluation of any other marina project anywhere in areas designated as critical manatee habitat. All of the St. Johns River in Volusia County, Florida, is designated as critical manatee habitat. On July 16, 1986, after issuance of its Intent to Issue, DER received comments from the Florida Department of Natural Resources regarding Arbors' project and its potential impact on manatees. DER considered the possibility of boat/manatee collisions and had specifically considered this issue. DER did not agree with the broad and general concerns expressed by the Department of Natural Resources, and DER's rules have not adopted a specific requirement regarding a ratio between the length of a project's shoreline and the number of permittable boat slips. On July 16, 1986, the Department received a letter from the FWS concerning fisheries issues and navigation. This FWS letter was received after issuance of DER's Intent to Issue. Although DER considered these comments, DER disagreed with the FWS's recommendations regarding these issues. Water quality sampling and analysis showed that at present, there are no violations of DER's Class III water quality standard in DeBary Bayou, except for the dissolved oxygen criterion on some occasions during early-morning hours, and that result is to be expected. It is further not expected that there will be any water quality violations after the project is completed. If the work areas affected by driving piles to build floating docks and the work area around the maintenance dredging of the DeBary Bayou channel are contained within turbidity barriers, as required by general and specific conditions of the DER's proposed Draft Permit, it is anticipated that no violations of the Class III turbidity criterion will occur during construction of Arbors' project. By maintenance dredging the former DeBary Bayou channel, Arbors will remove the silt and sediment overburden from the channel and restore a deep (four to five feet below mean sea level) channel having a hard sand/fragmented shell bottom. Arbors' dock will be restricted to small boats whose operation in the deep channel will be unlikely to re-suspend silt and sediment and cause violations of the Class III turbidity criterion. Additionally, it is unlikely that any turbidity which is created by turbulence from boat propellers in a designated "No Wake, Slow Speed" zone will violate the Class III turbidity criterion. Although the entire project will be enhanced by the proposed maintenance dredging, such dredging is not a part of the permit application. From the evidence it appears that the project is permittable without the dredging. Although Arbors' project will result in the addition of some oils and greases associated with outboard motors to DeBary Bayou, the addition is not expected to result in violations of the Class III water quality standards. Additionally, release of heavy metals from anti-fouling paints should be minimal, and that release can be further controlled by specifically prohibiting over-water repair of boats and motors. Some addition of phosphorous to the waters of DeBary Bayou is anticipated due to use of phosphate-based detergents for washing boats. Additionally, minimal amounts of phosphorous may be added to DeBary Bayou from re-suspension of organic silts by turbulence from boat propellers. However, DER has no standards for phosphorous in fresh waters, and the minimal additional amounts of phosphorous expected from these sources are not anticipated to violate DER's general nutrient rule. Operation of boats at Arbors' proposed boat docks will cause no water quality problems which would not be caused by operation of boats at any other marina anywhere in Lake Monroe or anywhere else in the State of Florida. While WVC's expert, Robert Bullard, testified that Arbors' proposed boat docks could potentially cause violation of DER's Class III water quality criteria for turbidity, oils and greases, heavy metals and phosphorous, he was unable to testify that Arbors' project actually would cause such violation. His testimony in this regard was speculative and is not given great weight. No other WVC expert testified that Arbors' project was likely to cause violation of any criteria of DER's Class III water quality standards. It is anticipated that the shade cast by the boat docks will not have an adverse affect on water quality. Additionally, DeBary Bayou is a clear, spring-fed water body open to direct sunlight. The boat docks will cast shade which will enhance fish habitat. The proposed docks will not threaten any production of fish or invertebrate organisms. The mitigation plan proposed by the applicant and accepted by Volusia County and DER requires planting wetland hardwood tree species. These trees will certainly assist in stabilizing the bank of DeBary Bayou and minimizing erosion of the shoreline. Additionally, these trees will absorb nutrients from the water and will perpetuate the wooded wetland habitat along the DeBary Bayou shoreline. Arbors' own expert, Carla Palmer, also suggested the sprigging of eel grass in the dredged portion of DeBary Bayou. Such planting should be included as part of the mitigation plan. DER considered the cumulative impact of this docking facility. Four marinas are presently permitted on Lake Monroe and in the St. Johns River between Lake Monroe and Deland. DER considered these facilities' existence when it reviewed Arbors' application, and was satisfied that Arbors' boat dock facility would not have an adverse cumulative impact. There are no specific guidelines for a cumulative impact evaluation; accordingly, DER must apply its cumulative impact evaluation on a case-by-case basis. In the present case, there is no showing of adverse cumulative impacts from this project. Arbors' project will not adversely affect significant historical or archaeological resources recognized pursuant to applicable Florida or Federal Law. WVC was organized in March 1985, to oppose development in West Volusia County. WVC did not meet regularly and did not keep regular minutes of its meetings in the interim between organizing and filing the Petition in June 1986, for an administrative hearing on the Intent to Issue a permit for Arbors' project. When the Petition was filed, WVC did not have a membership roll, and was unsure how many members it had. Further, it is unclear as to how many members may have attended an "emergency" meeting to authorize filing said Petition. Approximately five months after said Petition was filed, WVC was incorporated and approximately nine months after the Petition was filed, WVC compiled a list of the people who were WVC members in June 1986. The emergency meeting WVC held in June 1986, to authorize filing said Petition was the first and the only such "emergency" meeting WVC ever held. The minutes of the emergency meeting have been lost. In June 1986, WVC may have had written rules authorizing emergency meetings and authorizing it to file suit, but its Chairman is unsure of this. Six of WVC's approximately 20 members may have lived within one mile of Arbors' project site in June 1986. Two of these members lived on waterfront property on Lake Monroe east of the 1-4 bridge. Some of these WVC members have never taken a boat west of 1-4 onto DeBary Bayou. WVC, as an organization, never sponsored outings or boat trips onto DeBary Bayou before filing the Petition. WVC's officers at the time of filing the Petition did not use DeBary Bayou for boating, fishing or swimming. No WVC members have ever seen manatees in DeBary Bayou. As with any other similar project on Lake Monroe, the boats which might be berthed at Arbors' project might add additional trash to the waters of Lake Monroe, might disturb the wildlife which WVC members might see on their property, and might cause wakes which might erode waterfront property. One of WVC's founders, who was an officer in June 1986, when WVC filed the Petition, stated that she would not be adversely affected in kind or degree any more than any other taxpayer in Florida. Friends timely intervened and its intervention was authorized by its membership at a regularly noticed meeting.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order granting Permit Number 64-114399-4, subject to those specific conditions set forth in paragraph 6 hereof and as modified by the stipulation entered into between Arboretum, Volusia County, and Department of Environmental Regulation, as more particularly described in paragraphs 7 and 8 hereof, and to include within the mitigation plan the sprigging of eel grass in areas of the dredged portion of DeBary Bayou. DONE AND ENTERED this 16th day of September 1987, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 16th day of September 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-2463 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner and Intervenor, West Volusia Conservancy, Inc., and Friends of the St. Johns, Inc. 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(3); 2(5); 8(24); 13(8); 46(57); and 47(57). 2. Proposed findings of fact 3, 4, 7, 10, 11, 12, 28, 29, 32, 34, 35, 36, 40, 42, 43, 44, and 45 are rejected as being subordinate to the facts actually found in this Recommended Order. 3. Proposed findings of fact 5, 14, 15, 16, 17, 20, 23, 24, 25, 26, 27, 30, 31, 33, 39, and 41 are rejected as being unsupported by the competent, substantial evidence. 4. Proposed findings of fact 6, 9, 18, 19, 21, 22, 37, and 38 are rejected as irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Bayou Arbors, Inc. 1. Each of proposed findings of fact 1-56 are adopted in substance as modified in the Recommended Order, in Findings of Fact 1-56. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Environmental Regulation Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-11(1-11); 13-28(12-27); 29-38(29-38); 39(38); and 40-48(39-47). Proposed finding of fact 12 is rejected as unnecessary. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Richard S. Jackson, Esquire 1145 West Rich Ave. Deland, Florida 32720 Dennis Bayer, Esquire P. O. Box 1505 Flagler Beach, Florida 32036 Philip H. Trees, Esquire P. O. Box 3068 Orlando, Florida 32802 Vivian F. Garfein, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301-8241
Findings Of Fact The Petitioner, James M. Brown, d/b/a Ramrod Development Company, is seeking to develop as residential property, the subject land on Ramrod Key, Monroe County, Florida, adjacent to the Torch Ramrod Channel. The specific filling project which is the subject of this hearing involves Mariposa Road and Angelfish Road which lie within the property described above on Ramrod Key and which appear on a subdivision plat filed in the official records of Monroe County in 1960 and on revisions of that plat, one of which was filed in 1963 and the more recent of which was filed in 1969. Since February 9, 1960, Monroe County has been the owner of that roadway known as Mariposa Road located on Ramrod Key and which is depicted on the subject plat of Ramrod Shores, Marina Section. Since the county became the owner of that roadway in 1960, through the date of the hearing, it has never given authorization or approval for any person, firm or corporation to place fill material or any other matter upon that dedicated roadway (which includes a section of Angelfish Road as well as Mariposa Road). Monroe County, Florida, has given the Department of Environmental Regulation authorization to require removal of fill material placed on any dedicated county roadway in violation of any law or administrative rule of the Department. On January 27, 1977, the Department personnel visited the subject site and determined dredge and fill activities had indeed taken place on a tidal Red Mangrove fringe area on the shore line of Torch Ramrod Channel without an appropriate permit issued by the Department. The Petitioner, James M. Brown, in sworn testimony, in the earlier proceeding here involved (DOAH Case No. 78- 1234), admitted that since 1969 he has, on numerous occasions, placed fill material in the Mariposa and Angelfish Road areas, which are the subject matter of this proceeding. He also admitted doing so without a permit issued by the Department of Environmental Regulation (See testimony of Brown in DOAH Case No. 77-1409, Atwater vs. Department of Environmental Regulation). In the earlier proceeding involving the Petitioner, DOAH Case No. 78- 1234, Mr. Sayward Wing described the placing of fill on the northern end of Mariposa Road by Monroe County, but this area is not the area now in controversy, which is on the southern part of Mariposa Road from its intersection with Angelfish Road south to Old State Road 4A. Witness Wing in that proceeding did not observe the county or its agents or employees place any fill in the subject area of Mariposa or Angelfish Road. The fill placed on Mariposa Road, between Old State Road 4A and the intersection with Angelfish Road, by the Petitioner, contained approximately 96 cubic yards of fill as of January 27, 1977. The fill placed on Angelfish Road from the Mariposa Road intersection westerly approximately 50 feet, contained approximately 178 cubic yards of fill as of that same date. The area west of Mariposa Road where the dredge and fill work was performed is predominantly vegetated by red mangroves (rhizophora mangle). The red mangroves are then superseded by white mangroves (laguncularia racemosa), black mangroves (avicennia germinans), as well as transitional vegetation. The red mangroves are the dominant vegetative species in the area. These species are found in the vegetative index which defines the Department's jurisdiction in Section 17-4.02, Florida Administrative Code. Witnesses Meyer and Kurer observed large numbers of small fish, predominantly gambusia affinis, in the inundated mangrove area lying on the west side of Mariposa Road. A fringe of red mangroves 50 to 80 feet wide vegetates the area east of Mariposa Road, along the Torch Ramrod Channel shoreline. The sandy mud intertidal and shallow subtidal water bottoms in this area are vegetated by benthic algae and sea grasses. The red mangroves are also the dominant species in this area. Benthic algae (halimeda sp., penicillus sp., gracellaria sp.) and sea grasses (thallassia testudinum and halodule wrightii) are also found in the vegetative index contained in Section 17-4.02, Florida Administrative Code, which delineates the Department's jurisdiction over State waters. The sampling and observations conducted by witnesses Kurer and Meyer in this area yielded silver side anchovies, mosquito fish, killifish, lane snapper, toadfish, needlefish, blennies, barracuda, various juvenile fish species, stonecrabs, amphipods, blue crabs, pink shrimp, isopods, nemerteans, polychaetes, tunicates, gastropods, and bivalves. The mangroves described, as well as associated wetland vegetation found in the area, provide filtration of sediments and nutrients contained in stormwater run-off from adjacent upland areas, as well as from tidal flows. This filtering process is essential in maintaining water quality in the adjacent open bay estuarine or marine system. The nutrients in the tidal waters as well as run-off waters are stockpiled in the sediments retained by the mangrove roots and are transformed into vegetative leaf matter by the mangroves as they live and grow. The extensive root system of the mangroves and their associated vegetation also provides stabilization of estuarine shoreline sediments and attenuation of storm-generated tides. Mangrove wetlands provide unique and irreplaceable habitats for a wide variety of marine as well as upland wildlife species. The Petitioner's activities, conducted without the appropriate approval and permit, have resulted in the alteration of the chemical, physical and biological integrity of State waters in the area of Mariposa and Angelfish Roads by the destruction of wetlands which provide food and habitat for wildlife, and which provide a filtrative and assimilative capacity to remove nutrients and other pollutants from the adjacent bay waters. the discharge of fill on to the mangrove areas, in waters of the State, has resulted in harm and injury to the biological community that existed there before the activity was completed. Specifically, as the testimony of Mr. Helbling (a biologist and water quality expert) establishes, the mangrove community to the east of Mariposa Road was shown not to be in a stressed condition in 1977 or at the time of the hearing. Mr. Helbling's testimony also establishes, however, that the mangrove system to the west of Mariposa Road, in effect inland from the filled portion of the road, is now in a stressed condition as manifested by mangrove trees in this area which area dead, or in the process of dying. This stress is caused primarily by the fact that the waters in the mangrove system to the west of Mariposa Road are impounded by the fill and no longer experience tidal flow or exchange daily. Therefore, being impounded, they are becoming more and more saline through the process of evaporation, to the extent that the mangrove trees are being poisoned. The mangrove tree community was not in this stressed condition in 1977 when this witness first observed it, but is at the present time. The primary reason for the imminent loss of this mangrove community is thus due to Mariposa Road being filled to such a level that there is no longer any tidal exchange of water with Torch Ramrod Channel. Witness Kurer established that the proposed plan of restoration set forth in the Department's exhibit two in Case No. 78-1234 and which has been adopted and admitted into evidence herein, would constitute an acceptable resolution of the dispute at bar. Removal of the fill would allow tidal exchange across Mariposa and Angelfish Roads and allow the mangrove system to restore itself and contribute to the protection and enhancement of the productive and valuable marine resource system in the adjacent bay area. Thus, the discharge of fill on to the mangrove areas involved herein which is within waters of the State, has resulted in harm and injury to that biological community which existed there before the activity was commenced and completed. The quality of waters in the Florida Keys is directly related to the degree of shoreline development by activity such as that undertaken by the Petitioner. The greater the degree of shoreline alteration, then the greater the degree of deterioration in water quality and the greater damage to biological productivity. The mangroves, in addition to their valuable filtrative function, also contribute leaf or detrital matter to the surrounding State waters and estuarine system in the form of decayed leaf litter. This organic component forms the basis of the marine food chain and is used directly for food by a variety of marine organisms, including small fish. A variety of important commercial and sports fish species feed directly on the mangrove detritus or on those fish or other forms of marine life which themselves feed on the detrital matter. Consequently, the destruction of the mangroves contributes directly to the deterioration of water quality through the loss of their filtrative function, as well as to the deterioration of an economically and biologically important sports and commercial fishery. Consequently, the restoration plan proposed by the Department is more of a desirable alternative than leaving the fill in place, in that it would restore the mangrove vegetation which provides the filtrative, assimilative functions in removing nutrients and other pollutants, and also provides food and habitat for fish and wildlife. The Petitioner's activities continue to be a source of pollution which was created without an appropriate and valid permit issued by the Department.
Recommendation In consideration of the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses and pleadings and arguments of counsel, it is RECOMMENDED: That the Department of Environmental Regulation enter a Final Order denying the application for an "after the fact" permit. That a Final Order be entered requiring the Petitioner to completely restore the unauthorized fill site to its original contours and elevations and to revegetate the affected area, pursuant to a restoration plan and compliance schedule approved by the Department, which restoration plan and compliance schedule should be supplied to the Department by the Petitioner within 20 days subsequent to the effective date of the Final Order herein; and that the Petitioner be required within 20 days following approval of the said restoration plan to commence the restoration work which shall be accomplished in such a fashion as to prevent further damage to the marine and estuarine environment involved. It is further required that Petitioner complete the said restoration plan and project within 60 days following the approval of the restoration plan by the Department. DONE AND ENTERED this 21st day of September, 1981, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1981. COPIES FURNISHED: David Paul Horan, Esquire 513 Whitehead Street Key West, Florida 33040 H. Ray Allen, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Trustees of the Internal Improvement Trust Fund enter a final order granting Petitioners to maintenance dredge a navigation channel over sovereign submerged lands as more fully described in Petitioners' Exhibit 8 (DER Permit/Certification No. 081510235). DONE and RECOMMENDED this 8th day of October, 1992, at Tallahassee, Florida. WILLIAM R. CAVE, 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 8th day of October, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-0534 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Proposed Findings of Fact 1 through 72 are adopted in substance as modified in Findings of Fact 1 through 72. Rulings on Proposed Findings of Fact Submitted by the Respondent Proposed Findings of Fact 1, 2, 3, and 4 are adopted in substance as modified in Findings of Fact 10, 1, 19, and 20, respectively. Proposed Findings of Fact 5, 6, 7, 10, and 12 are rejected as not being supported by competent substantial evidence in the record. Proposed Findings of Fact 8 and 9 are adopted in substance as modified in Finding of Fact 36. Proposed Findings of Fact 11, 13, 14, 15, 16, 17, and 19 are adopted in substance as modified in Findings of Fact 21, 25, 9, 9, 4, 4, and 11, respectively. Proposed Finding of Fact 8 is not relevant, but see Finding of Fact 42. Proposed Finding of Fact 20 is not relevant since the SWIM Plan has not been adopted. COPIES FURNISHED: Joseph W. Landers, Jr., Esquire John T. LaVia, III, Esquire Post Office Box 271 Tallahassee, Florida 32302 M. B. Adelson, IV, Esquire Edwin Steinmeyer, Esquire Department of Natural Resources Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kenneth Plante General Counsel Board of Trustees of the Internal Improvement Trust Fund 3900 Commonwealth Boulevard Mail Station #10 Tallahassee, Florida 32399-3000
Findings Of Fact Background Petitioner, David E. Musselman, is the owner of Lot 23, Block 22, Cudjoe Gardens Eighth Addition, Cudjoe Key, Monroe County, Florida. The lot measures 127 feet along its front and rear property line, 135 feet along its side property lines and, similar to adjacent lots, its rear property line abuts an artificially created waterway. Currently, most of petitioner's lot enjoys an elevation of six feet; however, from the edge of the waterway landward a distance of approximately 20 feet [to what has been referred to as the "toe of the existing slope" in these proceedings] the surface consists of exposed caprock at an elevation of approximately four inches above mean high water. It is petitioner's desire to construct a single family residence upon such lot and, incident to such construction, to erect a seawall along the edge of the waterway such that the elevation at the waterway will be increased by two feet, and to backfill from the seawall to his home. Such backfilling would require the deposition of approximately 3,540 square feet of fill within the Department's jurisdiction, which was shown to extend from the edge of the waterway to the toe of the existing slope, and would raise the elevation in such area two feet above existing grade. On December 16, 1991, petitioner filed an application with respondent, Department of Environmental Regulation (Department), for an exemption from the Department's wetland permitting requirements. If approved, such exemption would allow petitioner to construct the vertical seawall along the waterway, and backfill from the seawall to his proposed home. By notice of agency action dated February 14, 1992, the Department proposed to deny petitioner's application predicated on its conclusion that his proposal did not meet the exemption criteria established by Rule 17- 312.050(1)(g), Florida Administrative Code. Petitioner filed a timely protest to contest the Department's conclusion. The exemption Pertinent to this case, Rule 17-312.050(1)(g), Florida Administrative Code, exempts from permitting the following activities: (g) Construction of seawalls or riprap, including only that backfilling needed to level the land behind the seawalls or riprap, in artificially created waterways where such construction will not violate existing water quality standards, impede navigation or adversely affect flood control. An artificially created waterway shall be defined as a body of water that has been totally dredged or excavated and which does not overlap natural surface waters of the state. For the purpose of this exemption, artificially created waterways shall also include existing residential canal systems . . . . At hearing, the parties stipulated that the waterway which abuts the rear property line of petitioner's lot is an artificially created waterway, as well as an existing residential canal, and that the proposed project will not violate existing water quality standards, impede navigation, or adversely affect flood control. Notwithstanding, the Department contends that petitioner's application should be denied because no need has been demonstrated that would support the construction of the seawall along the edge of the waterway, as opposed to locating it further inland, and therefore the amount of backfill, with its attendant loss of wetlands, is excessive. For the reasons set forth in the conclusions of law, the Department's position is untenable as a matter of law. 1/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department enter a final order approving petitioner's application for an exemption to construct a seawall, and to backfill from such seawall to his proposed home, as applied for. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of June 1992. 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 4th day of June 1992.
